Sunday, 4 September 2016

What is distinction between a relevant and an irrelevant malfunction in computer affecting admissibility of electronic evidence?

 In DPP v. Me. Kewon, (1997) 1 Criminal Appeal 155, Lord Hoffman, applying Section 69 of the Police and Criminal Evidence Act, 1984 in relation to the inaccuracy in the time display in the computer print out, held:-
I shall for the moment assume that the inaccuracy in the time display meant that "the computer not operating properly". The question is therefore whether that was "such as to affect the production of the document or the accuracy of its contents". If the words are read literally, it did. The document said that the first test had occurred at 23.00 GMT when it was in fact 00.13 BST. As to one hour, the discrepancy is merely as to the way in which the time was expressed. 23.00 GMT is the same time as 00.00 BST. But the remaining 13 minutes cannot, I think, be dismissed as de minimis. The inaccuracy of the time reading therefore affected the accuracy of a part of the contents of the document. In my view, however, the paragraph was not intended to be read in such a literal fashion. "The production of the document or the accuracy of its contents" are very wide words. What if there was a software fault which caused the document to be printed in lower case when it was meant to be in upper case? The fault has certainly affected the production of the document. But a rule which excluded an otherwise accurate document on this ground would be quite irrational. To discover the legislative intent, it is necessary to consider the purpose of the rule. The first thing to notice is that Section 69 is concerned solely with the roper operation and functioning of a computer. A computer is a device for storing, processing and retrieving information. It receives information from, for example, signals down a telephone line, strokes on a keyboard or (in this case) a device for Chemical analysis of gas, and it stores and processes that information. If the information received by the computer was inaccurate (for example, if the operator keyed in the wrong name) then the information retrieved from the computer in the form of a statement will likewise be inaccurate. Computer experts have colourful phrases in which to express this axiom. But Section 69 is not in the least concerned with the accuracy of the information supplied to the computer. If the gas analyser of the Intoximeter is not functioning properly and gives an inaccurate signal which the computer faithfully reproduces, Section 69 does not affect the admissibility of the statement. The same is true if the operator keys in the wrong name. Neither of these errors is concerned with the proper operation or functioning of the computer. The purpose of Section 69, therefore, is a relatively modest one. It does not require the prosecution to show that the statement is likely to be true. Whether it is likely to be true or not is a question of weight for the justices or jury. All that Section 69 requires as a condition of the admissibility of a computer-generated statement is positive evidence that the computer has properly processed, stored and reproduced whatever information it received. It is concerned with the way in which the computer has dealt with the information to generate the statement which is being tendered as evidence of a fact which it states. The language of Section 69(1) recognises that a computer may be malfunctioning in a way which is not relevant to the purpose of the exclusionary rule. It cannot therefore be argued that any malfunction is sufficient to cast doubt upon the capacity of the computer to process information correctly. The legislature clearly refused to accept so extreme a proposition. What, then, was contemplated as the distinction between a relevant and an irrelevant malfunction? It seems to me that there is only one possible answer to that question. A malfunction is relevant if it affects the way in which the computer processes, stores or retrieves the information used to generate the statement tendered in evidence. Other malfunctions do not matter. It follows that the words "not such as to affect the production of the document or the accuracy of its contents" must be read subject to the overall qualification that the paragraph is referring to those aspects of the document or its contents which are material to the accuracy of the statement tendered in evidence.
 In effect, substantially, Section 65B of the Indian Evidence Act and Section 69 of the Act in England have same effect. 293. Thus, in the context of Section 65B(2)(c) the condition that throughout the material part of the period to which the computer operations related, the computer was operating properly has to be complied with. However, this compliance would be on the principle laid down in Shepherd (supra) and as applied in Ana Marcolino (supra) and Me. Kewon (supra). Thus in our opinion, is the only practical way to deal with computer generated evidence unless the response is by way of a challenge to the accuracy of computer evidence on the ground of misuse of system or operating failure or interpolation. Such challenge has to be established by the challenger. Generic and theoretical doubts by way of smoke screen have to be ignored.
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Criminal Appeal No. 199/2008
Decided On: 16.06.2014
Appellants: Pankaj Kumar
Vs.
Respondent: State of H.P.
Hon'ble Judges/Coram:Rajiv Sharma and Sureshwar Thakur, JJ.



1. This appeal is instituted against the judgment dated 31.3.2008 rendered by the Additional Sessions Judge, Shimla in Sessions Trial No. 8-R/7 of 2006 whereby appellant-accused (hereinafter referred to as the "accused" for convenience sake), who was charged with and tried for offences punishable under section 302 read with section 34 of the Indian Penal Code and sections 392, 120-B, 468, 419 and 471 and 201 of the Indian Penal Code alongwith Sandeep Kumar and Vijay Kumar. Accused Sandeep Kumar and Vijay Kumar were acquitted by the Additional Sessions Judge. Accused Pankaj was convicted under section 302 of the Indian Penal Code and sentenced to undergo life imprisonment and to pay a fine of Rs. 50,000/-. The amount was to be paid to the legal heirs of deceased Suresh. In default of payment of fine, he was ordered to further undergo simple imprisonment for a period of two years. He was also convicted under sections 419, 468 and 471 of the Indian Penal Code and sentenced to undergo simple imprisonment for six months each and also to pay a fine of Rs. 5,000/- each. In default of payment of fine, he was ordered to undergo simple imprisonment for a period of one month in each case in which default is committed. The sentence was ordered to run concurrently.
2. Case of the prosecution, in a nutshell, is that on 2.2.2006, one Prem Chand, a Ward Member, after attending a meeting in the office of B.D.O., Basantpur, was returning in the evening to his village. He found that many villagers had assembled at Mandri. He was told that a dead body was seen in a culvert at Beuli Moar near Mandri. He informed the police telephonically. He proceeded towards the spot alongwith some villagers. Police from Police Station, Suni conveyed the information further to Police Station, Dhalli. The police from Police Post, Suni arrived at the spot and thereafter police from Police Station, Dhalli reached the spot. Some blood stained pieces of bangles, some blood stained small stones and soil, a plastic container, a blood stained sports shoes etc. were found lying there. In the culvert, a dead body of a person aged about 35-40 years with sharp edged weapon injuries on his person was found. On the shoe, a mobile number was found written which appeared to be either 98163-57572 or 98163-57512. Two slips of paper containing some names and phone numbers were found in the shirt. From the trousers, a ten rupee note and a key ring with two keys were found. Photographs of the spot were taken. Dead body was taken to I.G.M.C. Hospital, Shimla for post-mortem. It was identified by one Mushu Ram as body of his son Suresh Kumar alias Neetu. According to the doctors, who conducted the autopsy, death caused due to multiple chop wounds on scalp and skull leading to damage to brain. Accused Pankaj and Sandeep were interrogated and arrested on 6.2.2006. On the same day, accused Vijay Sharma was also interrogated and arrested. They were remanded to police custody. The police took into possession a register maintained by the police at Shoghi barrier, which showed that vehicle No. HP-20B-2797 had crossed the barrier on the night intervening 1st and 2nd day of February. The driving licence was shown at the barrier. It was in the name of Vineet Kumar. Father of accused Pankaj produced driving licence No. 4364 to the police. As per its contents, it was issued to Vinod Kumar but it bore photograph of Pankaj. Articles, including vehicle No. HP-20-B-2797, seized by the police, were sent to State Forensic Science Laboratory. On analysis, it was found that hair found in the vehicle tallied with the hair of accused Pankaj. Hair found in the fist of deceased tallied with the hair found on foot mats. Hair found on Chader tallied with the hair of accused Vijay. Human blood of group 'B' was found on foot mats, earth and the small stones, shoe etc. of Vijay Sharma. Human blood of some group was found on clothes of deceased, sachet of Pan Prag, coins etc.
3. According to the investigation, deceased indulged in illicit trade of liquor. He used to get supply of liquor from Rangeel Singh, through his servant, one of the accused. Suresh owed Rangeel Singh, a sum of Rs. 70,000/-. Rangeel Singh was not ready to supply liquor any more unless amount already due was paid. In these circumstances, accused Sandeep arranged talk between deceased and accused Pankaj and Vijay, but in the meanwhile, they planned to kill Suresh and loot his money. As per planning, accused Pankaj and Vijay accompanied by one Pawan Kumar alias Nathu proceeded on 1.2.2006 from Bangana in vehicle No. HP-20B-2797. On the way, they stopped at Shahtalai to buy a charger and at Delag to take tea. They reached Dedheug at about 9.45 P.M. While on the way, they were in constant touch with Suresh through mobile phone. Suresh and his servant kept waiting for the accused thinking that they were bringing liquor. After reaching Dedheug, they turned their vehicle, took deceased with them and made murderous assault on the way. He tried to run away. In this process, his blood fell on the earth. The place where blood fell was later on identified by accused Vijay. They put the dead body in a culvert at Beuli Moar and ran away. At Shoghi barrier, when the vehicle was checked accused Pankaj showed driving licence, which bore his photo but name of Vineet. On the way, they burnt blood stained clothes, threw away blood stained foot mats and bangles. The bangles were there in the vehicle for decoration, some of which were broken during assault on the deceased. They threw Drat near Kiratpur in a canal while Nathu kept the other Drat with him. Later on, they washed their vehicle at Barnoh at Kishan Motors Service Station, but dropped a seat cover there. Accused Vijay threw his shoes and socks in a field, which he later on produced to the police. He also produced a suitcase containing a shirt, a sweater and a Chadar, blood stained, belonging of accused Pankaj and Nathu. Police submitted challan against the accused Pankaj and Vijay for offences under sections 302, 201, 392, 419, 468, 471, 120-B read with section 34 of the Indian Penal Code and against accused Sandeep for offences under sections 302,392 and 120-B of the Indian Penal Code. Accused Nathu was absconding.
4. Prosecution submitted list of 71 witnesses in all to prove its case against the accused, out of which 59 witnesses were examined and others were given up. Accused were also examined under section 313 of the Code of Criminal Procedure. They stated that they were innocent and witnesses have deposed falsely against them. Learned Additional Sessions Judge acquitted accused Sandeep Kumar and Vijay Kumar and convicted and sentenced accused Pankaj Kumar, as noticed hereinabove.
5. Mr. Manoj Pathak has vehemently argued that the prosecution has failed to prove the case against the accused.
6. Mr. P.M. Negi, learned Deputy Advocate General has supported the judgment dated 31.3.2008.
7. We have heard the learned counsel for the parties and have perused the record carefully.
8. PW-1 Prem Chand has deposed that during the year 2005, he was Vice-President of Gram Panchayat, Chalahal and thereafter after 2006. On 2.2.2006, after attending the meeting in the block office, Basantpur, he was returning to his village Mandri in the evening and found many people assembled there. There he came to know from the people that in the village Mandri at Beuli Moar, a dead body was lying in a culvert. He telephonically informed the police. He went to the spot. They saw a dead body in the culvert. One of the shoes was lying on the road while the other shoe was on the foot of the dead body. The shoe, which was on the road, was soiled with blood. Some pieces of bangles and a plastic container were also found there. Hair of deceased were also there on the road through which he was dragged to the culvert. The shoe which was lying outside the culvert bore a telephone number. Thereafter, stated that a telephone number was on one of the shoes. He did not exactly remember whether it was on the shoe which was lying outside the culvert or it was on the shoe, which was on the foot of the deceased. They noticed many injuries on the head, arms and back of the dead body. The hands of the deceased were soiled with blood and also contained some hair. A mobile phone was lying near the dead body. Then deposed that no phone was lying. The police took into possession hair, blood stained pebbles, pieces of bangles, plastic container, coins and the currency note found in the pocket of the deceased and shoes. Seizure memos Ex. PW-1/A to Ex. PW-1/E were prepared. In his cross-examination, he has deposed that he was working as a Clerk with Sh. G.D. Verma, Advocate since 1984. He reached the spot where dead body was lying at 6.30 P.M. He remained on the spot till 2.00 A.M.
9. PW-2 Dhani Ram has deposed that on 1.2.2006, he, Suresh alias Neetu and his mother Kamla Devi were coming to Shimla to attend the court hearing. They were coming in Suresh's vehicle. Suresh was driving the vehicle. While they were on the way, a telephone of one Sunny of village Bangana came on Suresh's mobile phone informing that he was free on that day and that if the goods were needed, he could bring them from Bangana and drop at Chabba. He was sitting on front seat with Suresh. Sunny had disclosed the telephone number of Pankaj and he was asked by Suresh to write down the number. Firstly, he wrote the telephone number on a yellow paper and immediately thereafter in the diary of Suresh. On 3.2.2006, father of Suresh, Mushu Ram came to his house and informed him that Suresh had been missing since the 1st day of the month. He, Mushu Ram and Khem Raj went to Police Post, Suni to lodge the report. They were informed by the police that a dead body was found at Mandri. They were also informed that the dead body was sent to I.G.M.C. Shimla. Then he went to I.G.M.C. Shimla. Dead body was identified vide Ex. PW-2/A. On 3.2.2006, 2-3 police officials arrived at the house of Suresh, searched his vehicle and took into possession a diary and yellow paper. Memo Ex. PW-2/C to this effect was prepared. He recognized yellow paper Ex. P-13 and diary Ex. P-14. He also recognized telephone number written by him vide Ex. PW-14. In his cross-examination, he has deposed that he had obtained leave of the first day of month. Deceased Suresh was his cousin. It was Suresh who had attended the phone. Deceased Suresh indulged in trade of illicit liquor. He had no concern with the trade. Suresh told him that the phone was of Sunny of Bangana. His first statement was recorded at the time when they had gone to Police Post to report about Suresh having gone missing. His second statement was recorded when police took into possession the diary and the yellow paper. His first statement was recorded by the police at I.G.M.C., Shimla. According to him, when his first statement was recorded, he had not disclosed to the police regarding Sunny's phone and noting down the phone number on the yellow paper and the diary. His second statement was recorded by the police at Chabba at the house of Suresh.
10. PW-3 Mushu Ram is the father of deceased Suresh. According to him on 1.2.2006, his son Suresh and their servant Jatinder went to Dhadheog in a vehicle. They went at about 6 or 6.15 P.M. Some liquor was to be received by his son at Dhadheog and he was to return home. However, he did not return. On 2.2.2006, when he returned home from his duties, his wife told him that a telephone call from Jatinder was received at 12.00 noon that a vehicle had come from Dhami side and Suresh who had gone in a vehicle has not returned. His wife had sent Khem Raj to Dhadheog. Khem Raj brought his son's vehicle and Jatinder with him. Jatinder told him that on the previous night, he and Suresh were at Dhadheog in their vehicle on the road when a vehicle from Dhami side came. One of the occupants of that vehicle inquired whether the vehicle standing on the road was that of Neetu Pardhan. They turned their vehicle and Suresh alias Neetu boarded that vehicle saying that he would return within ten minutes. On 3.2.2006, he, Dhani Ram, Khem Raj and Jatinder went to Police Post, Suni and informed the police about Suresh having gone missing. The police told them that they have found a dead body during the night and the dead body has been sent to I.G.M.C., Shimla. They were further told that they could go to Shimla and identify the dead body. He identified the dead body vide memo Ex. PW-2/A. He has admitted in his cross-examination that his son was facing trials in court concerning illicit trade of liquor. He has also admitted that at that time they had not disclosed to the police that his son had gone in some vehicle from Dhadheog during the night intervening of 1st and 2nd day of February nor it was disclosed to the police that his son was indulging in illicit trade of liquor with Sunny and others. When they went to Police Post on 3.2.2006, their vehicle was parked at their house. He has also admitted that after the identification of dead body of Suresh, Jatinder was first to be called by the police for interrogation. Police kept Jatinder with them for about one or two days. He has also admitted that he did not disclose to the police that his wife had told him that she received a phone of Jatinder at about 12.00 noon. Then stated, he had disclosed this fact to the police.
11. PW-4 Jatinder has deposed that he was servant with Mushu Ram for the last 4-5 years. Suresh was son of Mushu Ram. Suresh indulged in the illicit trade of liquor. Suresh used to take him with him in his vehicle for loading and unloading of liquor. On 1.2.2006, he and Suresh came by their own vehicle to Dhadheog. At Dhadheog they kept on waiting on the road. A telephone call came from Sunny informing that they were about to reach with the liquor. In the meantime, Suresh received a telephone call from Khem Raj and Suresh informed Khem Raj that some men were coming with liquor. After some time, Sunny, Vijay and Pankaj arrived there in a Tata Sumo vehicle. Sunny asked Neetu Pardhan to come to him. Neetu Pardhan alias Suresh went to them and came to him and asked him to stay there and told that he would return soon. Thereafter, he took his mobile phone and the keys of vehicle and went with the accused in their vehicle. In that vehicle, some person, named Nathu Ram was also there because these people were uttering such name. He kept on waiting but Neetu never returned. STD booth was at a distance of one kilometer away from the place where their vehicle was parked. On 2.2.2006, he went to the booth and tried to contact Suresh on his mobile phone, but the phone was found switched off. Thereafter, he made a telephonic call from the same booth at the house of Suresh. After sometime, Khem Raj, maternal uncle of Suresh, came there with keys of vehicle. They came to Chabba with the vehicle. He was having a sum of Rs. 30,000/- in the vehicle, which belonged to Suresh Kumar, which he returned to his family members. On 3.2.2006, they went to the Police Post and informed the police about Suresh having gone missing. They were told by the police that a dead body was found by the police in Mandri. In his cross-examination, he has testified that on that day mother of Suresh was at home but the father was not present. Whatever he deposed before the Court, he has narrated that to Khem Raj, but neither to the father of Suresh Kumar nor to the police. He was interrogated by the police. He was called by the police to Police Station, Dhalli on 3.2.2006 for interrogation. He was allowed to go only after seven days. During this period police interrogated him and took him to several places. He was given beating by the police. Then deposed that no beating was given. He has admitted that police insisted upon him to produce the Drat with which Suresh was killed. He has also admitted that he told the police sometime that the Drat was towards Mandri, sometime he stated it to be at some other place. Volunteered that his mind was not working properly at that time. He has also admitted that when the Drat was not found at the place stated by him, he was brought back to the Police Station and was beaten. He disclosed to the police that Sunny, Vijay and Pankaj had arrived at the place where they were waiting for them. He disclosed to the police that Sunny, Vijay and Pankaj were indulging in the illicit trade of liquor. The persons, who came in the vehicle, none of them came out of the vehicle. The glasses of the vehicle were black. He has also admitted that while he was with the police for the purpose of interrogation or even thereafter, he never identified the vehicle having 'Bhole Shanker' painted on it. He has admitted that he did not know Pankaj and Vijay.
12. PW-5 Khem Raj has testified that Suresh Kumar was his nephew. He indulged in illicit trade of liquor. Jatinder was his servant. On 1.2.2006, he made a telephonic call to Suresh at about 9.30 P.M. and told him that he and Jatinder were at Dhadheog. He also told that Sunny, Vijay and Pankaj were coming with liquor. On the next day, he received a telephonic call from the mother of Suresh informing him that Suresh had not returned by that time. Mother of Suresh asked him to come to her house and also disclosed that the vehicle of Suresh was at Dhadheog. He took keys from the mother of Suresh and went to Dhadheog, where Jatinder was found sitting in the vehicle. Jatinder told him that a little while after his phone, a telephonic call from Sunny came informing that they had reached Shimloh. Then Jatinder disclosed that the vehicle reached Dhadheog where he and Suresh were waiting. Jatinder also told that then Sunny called Neetu Pardhan to come to him. Jatinder disclosed him that thereafter Suresh went in their vehicle telling him that he would be returning soon. Jatinder also disclosed that when the vehicle started from that place, Nathu name was being uttered. Thereafter, he took the vehicle of Suresh to Chabba. On 3.2.2006, he, Jatinder, mushu Ram and Dhani Ram went to Police Post, Suni where they came to know that a dead body was found at Mandri by the police. They were told that they could go to Shimla to identify the dead body. They came to Shimla and found that the dead body was of Suresh. Police checked the vehicle and took into possession a diary and a yellow paper vide memo Ex. PW-2/C and diary Ex. P-14 and yellow paper Ex. P-13 were identified by him.
13. PW-6 Kamla Devi is the mother of deceased. According to her, she alongwith her son Suresh Kumar and one Dhani Ram was coming to Shimla to attend the court hearing. On the way, her son received some phone calls from Sunny. Even when they were going back, phone calls from Sunny were received. Sunny conveyed on telephone the number of Pankaj. Her son asked Dhani Ram to note down the phone number, which he noted on a yellow paper. Thereafter, he noted the number in a diary. There were many other phone numbers of Una in that diary. When she reached home, Suresh asked her to give money. She gave him Rs. 30,000/-. Suresh came to Dadheog with Jitender. Suresh and Jitender did not return during night. Next day, Jitender made a phone call to her and told that Suresh had gone in some vehicle with three persons but he has not returned. She made a phone call to Khem Raj and asked to come her house and then to go to Dadheog to bring the vehicle back. She handed over the second key of the vehicle to Khem Raj and after some time, Khem Raj and Jitender brought the vehicle to Chabba. Jitender returned to her a sum of Rs. 30,000/-. In her cross-examination, she has admitted that she was also an accused in a case pending in the court No. 2, Shimla. The hone number of Pankaj was intimated to her son while they were coming to Shimla. She has disclosed to the police that Jitender made phone calls to her during the day and the facts disclosed by Jitender to her were also disclosed to the police.
14. PW-7 Anil Rana has deposed that he has taken an agency of Reliance Mobile. Accused Pankaj had purchased from his shop mobile connection No. 98171-56297. The SIM card Ex. PW-7/C was lying in his shop, which he handed over to the police. Subscription form filled in by accused Pankaj was also handed over by him to the police. In his cross-examination, he has deposed that no letter regarding sanctioning of agency was issued by the company. According to him, whenever a subscriber fills in the subscription form, he also supplies his photographs and proof about his identity and residence. He has admitted that only name has been entered in Ex. PW-7/B and rest of the columns were blank. Self-stated that accused Pankaj signed the form after he had filled in his name in the form. Pankaj told him that he would be coming to him in a day or two with his photographs and the proof of residence. He has also admitted that he was supposed to send the subscription form to the company. Self-stated that this form could not be sent as it remained incomplete. He has also admitted his signatures and seal of the shop on Ex. PW-7/B on the declaration that he has verified the proof of identity and address from the original.
15. PW-8 Rakesh Kumar has deposed that about one year back, police came to village Bhavva and took into possession vehicle of accused Pankaj. At that time, Dev Raj, father of accused Pankaj, was also there. He was declared hostile by the prosecution. In his cross-examination by the learned Public Prosecutor, he has deposed that police did not record his statement. According to him, portion 'A' to 'A of statement mark 'R' was incorrect. He did not know that from the vehicle R.C.; certificate of insurance, charger of mobile and a blanket were also recovered by the police and took into possession. His signatures were obtained on Ex. PW-8/A, however, it was not read over to him.
16. PW-9 Karam Chand has deposed that he was running a business of washing vehicles at Barnah in the name and style of Krishan Motors Service Station. On 2.2.2006, three boys brought a Tata Sumo vehicle at his workshop for washing. He did not remember the registration number of the vehicle, however last digits were 97. At that time, he was sleeping. The boys woke him up. He got up and went away. They themselves washed the vehicle from inside. He washed the vehicle from outside. At the time of washing, they kept seat cover outside the vehicle and while leaving, they left the seat cover there. They proceeded towards Una. Perhaps on 6th day of the month, police came to him. The police inquired from him about the seat cover. He handed over the same to the police. It was stained with blood. Police prepared memo Ex. PW-9/A. In his cross-examination, he has deposed that he washes about 110-120 vehicles in a month.
17. PW-10 Constable Rajinder has testified that on 6.2.2006, he, Sub-Inspector Sher Singh, Head Constable Surinder Singh went to the workshop at Barnoh. The owner of the workshop Karam Chand told that on 2.2.2006, Tata Sumo Vehicle No. HP-20B-2797 had come at his shop for washing. The vehicle was brought by three boys. In his cross-examination, he has deposed that the seat cover was put in a parcel and sealed with seal. The seal was handed over to him. He has not brought the seal. He has not lodged any report about the misplacement of seal.
18. PW-11 Roshan Lal has deposed that he and Desh Raj went to Police Station on 8.2.2006 to inquire about the murder of Suresh Pradhan. In the Police Station, accused Pankaj and Vijay were in custody. Police made inquiries from accused Pankaj in his presence. He stated that on the night intervening 1st and 2nd day of February, he burnt the blood stained clothes, washed the vehicle and threw away the foot mats at Bawari near Dharampur. Police recorded the statement of accused vide memo Ex. PW-11/A. He identified signatures on the memo. At about 12.00 noon, he, police and accused Pankaj proceeded towards Dharampur and Rama Nand met there. He was associated by the police. Local resident of the Panchayat was also called by the police. From there, Pankaj directed us and the police party to proceed on Gadkhal road. At a distance of 3-4 KMs, they reached a Bawari and accused Pankaj stated that it was on this Bawari that he had washed his vehicle. Accused Pankaj while moving ahead of them, took them to a place below the road. There accused produced to the police broken bangles, ash of burnt clothes, blood stained foot mats with hair on the mats. These articles were taken into possession vide memo Ex. PW-11/B. The memo was signed by him, Pradhan and Rama Nand. The hair were put in a piece of paper and then paper was wrapped with a piece of cloth. In his cross-examination, he has admitted that they were not called by the police on 8.2.2006. They came to know about the case of their own.
19. PW-12 Rama Nand Yadav has deposed that on 8.2.2006, he was present at Dharampur. He wanted to go to Gadkhal. Police vehicle came. He signaled it to stop. The vehicle was stopped. A constable was sent and Prabhu Dayal, Vice-President was called. Accused Pankaj asked them to proceed in that direction. On reaching the Bawari, accused Pankaj asked to stop the vehicle. Accused Pankaj stated that he had washed his vehicle there and took them below the road where ash, bangles, blood stained foot mats were lying. Some hair were also stuck to the foot mats. He has admitted in his cross-examination that many people wash their vehicles at Bawari. He did not know that those who wash their vehicles there throw their worn out articles also. He did not know the name of constable who picked up the foot mats from there.
20. PW-13 Constable Suminder has testified that he was posted as constable in Police Station, Dhalli. On 5.2.2006, he, SHO Vijay Kumar and constable Tek Singh had gone to Bangana. They reached late in the night. On 6.2.2006, they took accused Pankaj from Police Station, Bangana to his house. In front of his house, vehicle No. HP-20B-2797 was parked. Accused's father Dev Raj brought the key and opened the vehicle. In the vehicle, charger of mobile phone was found. There was a blanket in the rear seat of the vehicle. Dev Raj also brought R.C., certificate of insurance and the same were taken into possession by the police.
21. PW-14 Het Ram has deposed that he and Ishwar Dutt had come to Police Station, Dhalli in connection with their own work. In their presence accused Vijay Kumar told S.H.O. that he gave beatings to Neetu alias Suresh in the area of Shimloh on the night of 1st day of the month. He also disclosed that they did not allow Suresh to get down from their vehicle when he was trying to get down. He also disclosed that they kept the dead body of Suresh in a culvert near Mandri. The statement of Vijay was recorded vide Ex. PW-14/A. Accused Vijay stated that he could identify the place where Suresh Kumar was given beating and where his dead body was concealed. Thereafter, they went towards Shimloh. The police took photographs of that place and prepared a site plan. Accused also identified the culvert whereby the dead body was concealed vide memo Ex. PW-14/C. On the next day, he and Ishwar Dutt again came to Police Station, Dhalli. On that day also, accused Vijay was interrogated in the police Station in their presence. Accused Vijay Kumar disclosed that in a place called perhaps Baroh, near Una, near a service station, he had thrown shoes and socks. Accused also disclosed that there was an attache case in his house in which his blood stained sweater, blood stained shirt and blood stained shawal of Nathu were lying. Statement of the accused was recorded vide Ex. PW-14/D. In his cross-examination, he has deposed that they had gone to the Police Station to know about the progress of the case since he was interested in investigation of the case. He has also admitted that they were not called by the police.
22. PW-15 Sanjay Kumar has testified that the police came to his shop with accused Vijay Kumar in the 1st week of February, 2006. There is a Service Station near his tea shop. In his presence and in presence of Hira Chand, accused Vijay Kumar produced to the police a shoe and socks from a field which was on the back side of his shop.
23. PW-16 Hira Chand has deposed that the police came with accused Vijay at Kishan Motors Service Station. At that time, he was working at the Service Station and was present there. The police asked accused Vijay where he had thrown the goods. Accused Vijay took the police to the field which was behind the Service Station and Sanjay also went to the field. Accused Vijay lifted a shoe and socks from the field and produced before the police.
24. PW-17 Kamal Kishore has deposed that he was having a Maniari shop at Bangana and accused had a Dhaba nearby. He did not remember the date and month, however, the police had come to the accused's Dhaba. One hour after the arrival of police, Pradhan called him to accused Dhaba. He was asked by Pradhan Mehar Chand to sign some papers. He asked what was written there, but Pradhan stated that the contents would be read out later. He signed. Later on, he was told that it was written that there were clothes in the brief case. He was declared hostile.
25. PW-18 Constable Tek Chand has deposed that he was working as Constable in Police Station, Dhalli. He was present at Barnoh with S.H.O. Vijay Sharma, Sub Inspector Sher Singh in connection with investigation of the case on 9.2.2006. There was an auto repair shop in the name and Style of Auto Kishan Service Station. Accused Vijay disclosed that behind the service station in the field he had thrown his shoes and socks. Shoes and socks were blood stained. The shoe and the socks were wrapped in a piece of cloth and sealed with seal 'T. At the time of recovery, Sanjay and Hira were present. Seal 'T' after use was handed over to Hira Chand. Recovery memo Ex. PW-15/A was prepared.
26. PW-19 Mehar Chand has deposed that on 9.2.2006 while he was at his home, police telephonically called him to arrive at Dhaba 'Mitranda'. He gave to the police the telephone number of the Pradhan. At that time, accused were taking food at the Dhaba. He and Sushil Kumar also sat in the Dbaba with the Police. In the meanwhile, Pradhan Vijay Kumar also arrived there. SHO asked the constable "bring that bag". The constable brought the bag from outside the hall and placed it before them on the table. He was also declared hostile. He had denied the suggestion that accused Vijay produced the suitcase from below the cot lying in the Dhaba in their presence.
27. PW-20 Ramesh Kumar has deposed that on 1.2.2006, a Tata Spacio Vehicle stopped in front of his shop at Shah Talai. From that vehicle, one tall and lean fellow alighted and purchased some oranges and apples.
28. PW-21 Om Parkash has deposed that he has a mobile phone shop at Shah Talai in the name and style of Aditya Communications. On 1.2.2006, at about 5.30 PM a boy came to his shop and asked to fit a charger in his vehicle. He went to the vehicle to fit the charger but it could not be fitted. That vehicle was either Tata Sumo or Tata Spacio. According to him, two other boys were sitting in the vehicle. He did not take notice of them. He was also declared hostile by the prosecution.
29. According to PW 22 Shashi Pal, as per record, licence to drive scooter/motor cycle/LMV was issued on 3.5.2005 by the Licensing Authority Nadaun in favour of Vineet Kumar son of Kikar Singh, VPO Kohla, Tehsil Nadaun. In this regard, entry No. 4364 was made in the Register vide Ex. PW-22/A. In his cross-examination, he has admitted that the register contains photographs of every person, in whose favour licence is issued. There was no photograph on entry No. 4374, 4464, 4479 and 4485.
30. PW-23 Bhag Singh has deposed that he was deputed at Shoghi Barrier in the year 2006. On 14.2.2006, he was on duty at the Barrier and had laid a Naka. On the intervening night of 14/15.2.2006, after 12.00 Midnight, vehicle No. HP-20-2797 came at the Barrier. The vehicle was signaled to stop. The accused were sitting in the vehicle. Accused disclosed his name to be Bimal Kumar. They entered his name in the register maintained by them. This register later on was handed over to Investigating Officer. He has admitted that in the register the entry made on 2.2.2006 at Sr. No. 3 at Page 73 is that of vehicle No. HP-20-2797. He has denied the suggestion that the occupant of the vehicle had disclosed his name as Vineet Kumar and not Vimal Kumar. He has admitted that in the entry, name written is Vineet Kumar. He has also admitted that in the register there was no entry after 13/14.2.2006.
31. PW-24 Suresh Chand has deposed that he runs a tea shop at Delang. A year back, when the police people came to his shop with one or two persons and asked him if he could identify them. Police told him that they had taken tea at his shop a few days back. He told that he could not identify them. He was declared hostile.
32. PW-25 Kishori Lal has deposed that he used to drive his vehicle No. HP-20-8400. On 30.12.2005, at Thandi Khuhi, he was taking food at Vijay Kumar's Dhaba. Accused Sunny and Pankaj met him. On 1.1.2006, when he was present at Bangana, accused Sunny met him and he took him to Hamirpur in a tempo. The Mobile phone set which he had given to accused Sunny was Nokia 1100.
33. PW-26 Head Constable Sewa Singh has deposed that on 16.2.2006, he was on leave and in the morning he was on Kiratpur-Anandpur road near his village Kotla. There Vijay Kumar SHO, Dhalli and other police officials met him. Accused Pankaj Kumar was also with them. Accused Pankaj Kumar was walking ahead of them and got recovered A Drat from Kotla canal. Water in the canal was shallow. S.H.O. prepared the sketch of the Drat. The Drat was put into a piece of cloth and sealed with seal 'O'. The seal after use was handed over to him. He has not produced the seal in the Court. He has admitted in the cross-examination that the place from where Drat was recovered was not visible from the road.
34. PW-27 Rattan Chand has deposed that he was present at Lakhiyan Pul at his Rehri, where Sewa Singh who was on morning walk, also came. At about 7.00 A.M., a vehicle of Dhalli police came there. Accused Pankaj was with the police. He was walking ahead of them. From there, he pointed at a Drat lying below. The Drat was lying in grass and water. The accused got the Drat which police wrapped in a piece of cloth. It was recovered vide memo Ex. PW-26/A. In his cross examination he has deposed that Drat was not visible from the bridge. There was growth of grass of half foot height and water was also half foot deep.
35. PW-28 Head Constable Pritam Singh has deposed that he was deputed on duty in the year 2006 at the traffic Barrier Shoghi. On 14.2.2006, Head Constable Rajinder Singh of Police Station, Dhalli, took into possession from him the checking register at Shoghi Barrier. On 1.2.2006, vehicle No. HP-20-2792, Spacio crossed the barrier and in this connection entry was made by HHC Rajinder Singh in the register. He has identified the register Ex. PW-23/B. The entry appeared at Page 73 at Sr. No. 3. Memo Ex. PW-23/A was prepared regarding taking into possession the register.
36. PW-29 Head Constable Subhash Chand has deposed that he was working as HHC in Police Station Dhalli, since 2003. On 15.2.2006, accused Pankaj made disclosure statement to the S.H.O. in his presence and in the presence of Ranjit Singh to the effect that on 2.2.2006, he threw a Drat in the morning in a canal beyond Kiratpur while he was travelling by his vehicle No. HP-20B-2797 accompanied by Nathu and Vijay Kumar from Shimla to Bangana side. Disclosure statement of accused Ex. PW-29/A was recorded.
37. PW-30 HHC Rajinder Singh has deposed that he was posted at Shoghi Barrier from July 2005 to July 2006. On 2.2.2006, at midnight, vehicle No. HP-20B-2797 came at the barrier. It was driven by one Vineet Kumar. They checked the driving licence of Vineet Kumar and allowed the vehicle to go. They made entry in their register about the arrival of the vehicle at the barrier. On 14.2.2006, Head Constable Pritam Singh, produced the register to police and same was taken into possession vide memo Ex. PW23/A. In his cross-examination, he has deposed that the driver had stated his name as Raju and he had entered Raju in the register. When driving licence was seen, name entered therein was Vineet Kumar and when he asked the driver, he stated that at home, he is called as Raju, otherwise his name is Vineet Kumar. This necessitated cutting in the register.
38. PW-31 Rangeel Singh has deposed that he was holder of L-2 and L-14 country liquor and IMFL. He used to supply liquor from Bangana to Una, Haripur and Shimla etc. He used to supply liquor to Neetu Pradhan of Suni in Shimla district. A sum of Rs. 70,000/- was due to him from Neetu as on 25.1.2006. He did not know Neetu. He used to talk on telephone only. On 1.2.2006, he talked to Neetu on telephone about the balance. He told on telephone to send his man to him on 2.2.2006 and receive the payment. He directed Sunny to go to Sunni to collect the payment. He came to his shop at 10.00 A.M. He tried to contact Neetu on telephone but the contact could not be made as the phone was found switched off. His mobile number was 98160-89965. Mobile number of Neetu was 98163-52512. On 2.2.2006, at about 8.00 P.M. he received a call from the family members of Neetu on his mobile phone and they wanted to know if Neetu had come to him. He told that he had not come to him. It came to his notice that Neetu had not come home on the previous night. Again at about 9.00 P.M., a telephone call was received from Neetu's mother asking him if Neetu was with him. Neetu's mother told him over the telephone that some party from Una was coming to Sunni. The mother asked him to disclose the telephone number of that party. He told Neetu's mother that he did not know any party having that phone number. On this, Neetu's mother told him that Sunny was knowing the party having this telephone number. Then he made a telephone call to Sunny and wanted to know whose phone number that was. Sunny replied that he was not knowing whose number that was and whose number he had conveyed while he was drunk. He was declared hostile. In his cross-examination by the public prosecutor, he has denied the suggestion that Sunny told him on the telephone that he arranged a talk between Neetu on one side, Pankaj and Vijay, on the other side. Volunteered. This was stated to him by Sunny on 3.2.2006 when he once again enquired from him.
39. PW-32 Mehar Chand has deposed that the police took into possession a mobile phone from Dev Raj, father of accused Pankaj. The police opened the handset and found that there was no SIM card. Police put the handset in a piece of cloth and after putting seals thereon, took the same into possession. His signatures were obtained on the parcel. Seizure memo of PW-32/B was prepared.
40. PW-33 Dev Raj has deposed that accused Pankaj is his son. About 5-7 years back, he was running a Karyana and readymade garment shop at Tiyuni. Accused Pankaj was living with him. They purchased vehicle Tata Spacio bearing No. HP-20B-2797. The vehicle was being driven by his son Pankaj. On 12/13.2.2006, on being asked by the police, he went to the Police Station Bangana. He was asked to bring the driving licence of Pankaj with him. The driving licence which he produced before the police at the police station was not taken into possession. Police demanded photograph of Pankaj from him. He was declared hostile by the prosecution. He has denied the suggestion that the police showed him a driving licence which was issued in the name of Vineet Kumar but was bearing photograph of Pankaj. According to him, the photograph on Mark S-1 was not that of Pankaj. Driving licence Ex. PW22/B bore the photograph of Pankaj. The Police has obtained Ex. PW-33/B by exercising pressure on him.
41. PW-34 Ranjit Singh has deposed that he had gone to Police Station Dhalli on 25.2.2006 in connection with his own work. Accused Pankaj was there in the Police Station. There a head constable told him that Pankaj has produced a Drat and Drat was in the police station. In his presence accused Pankaj admitted that Drat was produced by him to the police. He was declared hostile by the prosecution. He was cross-examined by the public prosecutor. He has denied the suggestion that on 15.2.2006 Pankaj made a disclosure statement to the police in his presence to the effect that he had thrown a Drat in a canal and that he could produce the same. He identified his signatures on Ex. PW-29/A. He was under-matric. He could read and write Hindi. He signed the memo without reading its contents.
42. PW-35 ASI Mela Ram deposed that on 13.2.2006, S.H.O. Bangana directed him to go to accused Pankaj's house at Bhavva to recover mobile phone. Raghubir Singh and Mehar Chand witnesses were associated in the investigation. There at Bhavva, Dev Raj, father of the accused Pankaj, produced to him handset.
43. PW-36 Head Constable Sat Pal has deposed that on 2.2.2006, he accompanied by Vijay Sharma, S.H.O. Police Station, Dhalli, reached Beolia Moar. There a dead body was lying in the culvert. The S.H.O. prepared Rukka and sent him to Police Station, Dhalli, with Rukka. He boarded a truck at 5.15 A.M. He handed over Rukka to MHC on 3.2.2006 at 9.15 A.M. He handed over the file to the S.H.O. at I.G.M.C; Shimla. In his cross-examination, he has admitted that near the dead body, some broken bangles were found. He did not remember the details of other articles found there. He did not remember that the articles which were lying there, were taken into possession or not. He did not remember any mobile phone was found there. He did not know for what purpose they proceeded to Bangana from Police Station, Dhalli.
44. PW-37 Naresh Kumar has deposed that about 1 1/2 years back, he was asked by Dev Raj, father of accused Pankaj, to accompany him to the police station. At Police station, Dev Raj handed over a photograph of Pankaj. Police then showed that photograph to him. He said that photograph was of Pankaj. Apart from this nothing happened in his presence. He was declared hostile by the prosecution.
45. PW-38 Chaman Lal has deposed that during February 2006, he was working as MHC because MHC Jasbir Singh had proceeded on leave. On 13.2.2006, a telephonic information was received from S.H.O. Police Station, Dhalli to the effect that accused Pankaj has disclosed to the police that he has given a mobile phone Nokia 2600 for repair at Hatli at the shop of one Neeraj Kumar and he had asked his father to collect the same from there. Upon this, he sent ASI Mela Ram to Bhabba to obtain the mobile phone from Dev Raj.
46. PW-39 Avneet Kumar has deposed that he has brought his driving licence with him. His real name was Avneet Kumar. But when he obtained this driving licence from RLA office Nadaun, his name was written therein as Vineet Kumar. He himself added letter 'A' and made it Avneet Kumar. He has admitted in his cross-examination that he never made written complaint to the RLA's office that his name has been wrongly written as Vineet Kumar in driving licence nor he informed that by adding the letter 'A', he himself has made it Avneet Kumar.
47. PW-40 Head Constable Tek Ram has deposed that he has worked as MHC in Police Station, Dhalli w.e.f. 1.7.2004 to 30.7.2006. He on 3.2.2006, Inspector S.H.O. Vijay Kumar deposited with him six parcels each bearing six seals of letter 'D'. On 6.2.2006, S.I. Sher Singh deposited within him parcel bearing six seals of letter 'D'. On the same day, Inspector Vijay Singh deposited with him a Nokia Samsung, mobile phone hand set Nokia 1100, Nokia 3315 and one vehicle Tata Spacio No. HP-20B-2797 along with keys and one charger Samsung. On 7.7.2006, Head Constable Man Singh deposited with him seven parcels bearing seal 'DKG'. The parcels and vehicle were sent by him to Forensic Science Laboratory Junga, through Constable Ramesh Kumar vide R.C. No. 14/2006. On 8.2.2006, S.I. Raj Kumar deposited with him parcel bearing seven seals of letter 'M'. On the same day, S.H.O. Vijay Sharma, deposited with him two parcels each bearing six seals of letter 'H'. On 10.2.2006, S.H.O. Vijay Sharma also deposited with him a parcel and a suitcase. The parcel was having six seals of letter "I". While suitcase bore one seal of letter 'C'. On 15.2.2006, HHC Subhash Chand deposited with him two envelopes each bearing four seals of letters 'DKG'. On 16.2.2006, Inspector Vijay Sharma, deposited with him one parcel bearing six seals of letter 'O'. On 20.2.2006, S.I. Raj Kumar deposited with him one parcel bearing four seals of letter 'N'. On 21.2.2006, except parcel, which was deposited on 20.2.2006, all the parcels were sent to Forensic Science Laboratory through constable Yashpal vide RC No. 21/2006. On his return, he handed over the seal. These parcels were received back in the police station. On 3.2.2006, Rukka mark 'B' was received at the police station on the basis of which he recorded FIR Ex. 40/D.
48. PW-41 Constable Man Dass has deposed that on 7.2.2006, Doctor Forensic Medicine Department of I.G.M.C., Shimla handed over to him two parcels bearing seals 'DKG", two vials, two jars and two envelopes sealed with the same seal. On the same day, he handed over articles to Tek Ram MHC Police Station, Dhalli.
49. PW-42 Constable Gian Chand has deposed that on 5.4.2006, he went to Forensic Science Laboratory Junga from Police Station, Dhalli to bring back the case property of case No. 24/2006. He brought back vehicle No. HP 20B-2797, 13 parcels bearing different seals and also seals of 'FSL', three envelopes sealed with seal 'FSL' a blanket and report of chemical examiner.
50. PW-43 constable Yashpal has deposed that on 21.2.2006, MHC Tek Ram police station Dhalli handed over to him six parcels, out of which three parcels were sealed with seal 'H', one with seal 'O', one with seal 'D', one with seal 'DKG', a suitcase sealed with seal 'C', a parcel bearing seal "DKG" and samples of all the seals for being carried vide RC No. 21/2006 to Forensic Science Laboratory, Junga.
51. PW-44 Dr. H.S. Sekhon has deposed that he has conducted post mortem examination on the body of Suresh Kumar on 3.2.2006. A team comprising of Dr. Sangeet Kaur Dhillon and Dr. U.V.I. Bharwal headed by him was constituted and the post-mortem was conducted on 3.2.2006. The team noticed the following ante mortem external injuries on the body:
List of ante mortem external injuries
Head and neck
1. There was cut incised wound, beveled, spindle shaped oblique, over left parieto-temporal area 2"x 1/2" bone deep, direction front to back three and half inch from outer aspect of left eye brow.
2. there was cut incised wound three and half inch x one inch bone deep with tailing over left frontal area oblique.
3. there was oblique cut incised wound involving tip of nose five inches x half cm, in length with tailing of wound over left cheek, right cheek and was two inches over the angle of mouth, other end was 1.5 inches above the left angle of mouth.
4. there was oval shaped with irregular margin 2 inches x 2 inches above right cheek reddish brown in colour.
5. There was cut incised wound 2.5 inches x.5 inches bone deep two inches above the upper end of right ear oval right parito-occipital area.
Upper limbs
1. there was grazed abrasion reddish in colour over right shoulder joint 3 inches x half inch.
2. Two oval shaped contusion over out aspect of right upper arm bluish in colour 1 inch x 1 inch each in size.
3. two small superficial cuts 1 inch x half inch skin deep each over outer aspect of right fore-arm 2 inches below elbow joint (defence cuts).
4. Two superficial transverse cuts 1 inch x 1/4 inch skin deep each over palmer aspect of right thumb and one superficial cut 1/2 inch x 1/4 inch skin deep over palmer aspect of right index finger (defence injury).
5. There was grazed injury 1 inch x 1 inch over left shoulder reddish in colour.
6. Multiple deep cuts over left thumb and index finger palmer aspect (defence injuries).
Thorax and abdomen
1. there were multiple superficial grazed abrasion over lower part of chest and upper part of abdomen in an area of 6 inches x 6 inches, direction below upwards, reddish brown in colour.
2. There were grazed abrasion 2 inches x 1 inch over left. Scapular region and 1 inch x 1 inch over left lumber region.
3. There was vertical grazed injury 2 inches x 1 inch over right iliac region.
On internal examination, the team found that there was gross contusion of scalp on reflection and there was superficial linear oblique cut corresponding to injury no. 1 of head and neck over pericranium 1/2 mm in depth and 1 inch in length. There was perforating fracture skull 2 inches in length 1 mm in breadth over right partial area of skull corresponding to injury No. 5 of head and neck, right parietal area of cerebral area of brain, lacerated with gross subdural hemorrhage, both cerebral hemisphere with gross edema of brain. Thorax was normal.
In the stomach, there was 100 CC of partially digested meal, blackish in colour. The contents could not be made out. There was no peculiar smell and mucous membrane was normal.
The probable time that elapsed between injuries and death was immediate (few minutes to one hour) and between death and postmortem examination 24 to 48 hours.
52. The probable time that elapsed between injuries and death was immediate and between death and post mortem examination was 24-48 hours. According to their opinion deceased died due to ante mortem head injury as a result of multiple chop wounds on scalp and skull leading to damage to the brain, homicidal in nature. The weapon in their opinion was moderately heavy weapon with sharp margin. Injury No. 5 under the "head and neck" with perforation of skull was sufficient to cause death of the deceased. They issued post mortem report Ex. PW-44/B. According to him, injuries mentioned in Ex. PW-44/B were possible with weapon like Drat Ex. P-34.
53. PW-45 Ramesh Chauhan has deposed that on 7.2.2006, MHC Police Station, Dhalli handed over to him eight parcels sealed with seals 'DB' and 'DKG" two plastic jars, two vials, two envelopes sealed with seals 'DKG; vide RC No. 14/06 alongwith vehicle No. HP-20B-2797 Tata Spacio for being carried to Forensic Science Laboratory, Junga.
54. PW-46 Santosh Kumar has deposed that on 2.2.2006, he alongwith S.H.O. Dhalli arrived at the place of occurrence i.e. Beolia Moar on Dhami -Kingal road and took photographs of a dead body lying in a culvert. The photographs were Ex. PW-46/1 to PW-46/34 and negatives thereof were exhibit PW-46/35 to PW-46/68.
55. PW-47 Dr. Vijay Singh Jamwal has deposed that he issued report Ex. PW-47/A. The contents of the parcels 1, 2, 4 and 5 were found containing traces of alcohol. The quantity of alcohol in the contents of parcels 1 and 5 was found to be 106.3 mg% and 105.9 mg%, respectively.
56. PW-48 Tek Chand Thakur has prepared the Tatima of the site of occurrence Ex. PW-48/A.
57. PW-49 LC Ramawati has produced copy of DDR No. 14 dated 2.2.2006 Ex. PW-49/B.
58. PW-50 Constable Gopal Singh has brought Daily Diary Ex. PW-50/A, which was true copy of DDR No. 27 dated 2.2.2006.
59. PW-51 Dr. Mrs. Sangeet Dhillon, has deposed that she has taken the hair sample of Pankaj and Vijay. These were sealed separately with seal 'DKG'. The parcels were handed over to police alongwith memos Ex. PW-51/A and Ex. PW-51/B. For obtaining samples of hair, police had moved an application Ex. PW-51/C.
60. PW-52 Dr. Arun Sharma has deposed that he has issued reports Ex. PW-52/A and Ex. PW-52/B. According to him, the blood group of blood found in the vehicle could not be ascertained. Volunteered it was insufficient for further examination. He has testified that there is no definite study through which age of the blood stains can be ascertained. In his cross-examination, he has admitted that no DNA profiling was done. According to him, hair examination is based on colour, diameter, length, size, shape, distribution, pattern of pigments, granules etc. Facility does not exist for DNA profiling in the State. He has not prepared any cross section of the sample.
61. PW-54 Sub Inspector Prakash Chand has deposed that he was working as In-charge Police Post Suni. On 2.2.2006, Ex-President Prem Chand telephonically informed him that dead body was lying in a culvert near Peepal tree near village Mandri. Upon this, he accompanied by HC Shiv Kumar, HC Prem Lal, Constable Man Singh and Constable Tek Singh proceeded towards the spot. S.H.O. Dhalli was telephonically informed. On 3.2.2006, as per direction of the S.H.O., he accompanied by official of police post Suni proceeded towards Chabba and reached house of Suresh alias Neetu. There search of vehicle of Suresh (Tata Sumo) bearing No. PB-9110 was conducted in the presence of the witnesses. From the vehicle, diary of H.P. Government for the year 2006 was recovered. Many telephone numbers were entered therein. Inside the diary, a piece of yellow colour paper was found, on which telephone number 98173-51997 of Pankaj was found written. Diary Ex. P-14 was taken into possession vide Ex. PW2/C. Yellow coloured paper Ex. P-13 was taken into possession vide the same memo.
62. PW-55 S.I. Raj Kumar has deposed that when accused Sandeep and Vijay were in police station in the police custody, S.H.O. directed him to interrogate the accused persons. Disclosure statement Ex. P-14/A was recorded. On 14.2.2006, as per the direction of S.H.O., he and Constable Yashpal went to Bangana in district Una and there they first searched for accused Pawan Kumar in village Buhana and the adjoining area. At village Buhana, they interrogated mother and brother of accused Pawan Kumar. They went to village Bhabba to accused Panakaj where his father Dev Raj produced driving licence of accused Pankaj. On the driving licence photo affixed was that of Pankaj while address was of Vineet. The driving licence was Ex. P-22/B. It was taken into possession vide memo Ex. PW-33/A. According to him, it took about 30-35 minutes to record disclosure statement Ex. P-14/A.
63. PW-56 Shashi Kant Verma has deposed that he has worked with Bal Ram, who was Senior Executive in Regulatory Department. He was well acquainted with his signatures. Letter Ex.PW-56/A was issued by Bal Ram. Call details record Ex.PW-56/B of mobile No. 98163-52512, which was computer generated, was handed over by their office to the police. Similarly, letter Ex.PW-56/C and call details record Ex.PW-56/D of the same mobile number were handed over by Bal Ram to the police. Bal Ram also produced to the police letter Ex.PW-56/E and call details record Ex.PW-56/F pertaining to mobile Nos. 98161-54565 and 98160-89956. The certificate pertaining to three call details was issued by Bal Ram vide Ex.PW-56/G. In his cross-examination, he has deposed that data is maintained by I.T. Department, Mohali. It is a separate department of Air Tel. The principal officer of this department is D.G.M. Bal Ram was posted in Shimla. Bal Ram was not concerned with the I.T. Department. The call details Ex.PW-56/B, Ex.PW-56/D and Ex.PW-56/F were generated at Mohali. He could not recognize the signatures in circle 'A' on Ex.PW-56-A. According to him, for obtaining a telephone number, an application is moved and when the number is issued, they write down the number on the application. The applications are maintained by their office, from which it could be ascertained that which number was issued to whom. Only I.T. Department could certify as to whether there was any fault or not in the computer. He could not say on what basis Bal Ram issued certificate Ex.PW-56/G. No letter/call detail or the certificate was issued in his presence. Bal Ram had no technical knowledge.
64. PW-57 Sher Singh has testified that on 6.2.2006, he took into possession back seat cover of vehicle No. HP-20B-2797 from Service Station of Karam Chand at Barnoh, District Una. He was told that Pankaj, Sunny and Vijay had arrived at his Service Station for washing of the vehicle, but had left the seat cover Ex. P-15. In his cross-examination, he has deposed that before they went to the Service Station of Karam Chand, Vijay had told during interrogation that he accompanied by Sunny and Vijay had gone to the Service Station of Karam Chand to wash their vehicle, but he did not record such statement of Vijay.
65. PW-58 Vineet Sharma has deposed that he was working as Manager in Reliance Telecoms Limited, Shimla. On the request of police, their office issued letter Ex.PW-58/A and call details Ex.PW-58/B. In this regard, certificate Ex.PW-58/C was issued by Servesh Mathur, who was Circle Head. In his cross-examination, he has stated that documents Ex.PW-58/A to Ex. 58/C were issued before he joined his office. These details were computer generated. He could not disclose the name of person, who generated the call details from the computer. According to him, it is only on the basis of certificate Ex.PW-58/C that he stated that the computers were functioning properly. He was not aware that whenever computer generated record is issued, a certificate is appended that the computer was functioning correctly. According to him, there was no certificate on call details Ex.PW-58/B. Similarly, he also admitted that Ex.PW-58/C did not contain the period of calls and such details were there on Ex.PW-58/B.
66. PW-59 Vijay Kumar has testified that on 2.2.2006, information was received at Police Station, Dhalli telephonically from Police Post, Suni that a dead body was found near Mandri. On receipt of information, he proceeded to the spot with necessary staff. Near Mandri on Beulia Moar, a dead body of person aged about 35-40 years was found. He prepared rukka Ex.PW-59/A and sent the same to Police Station, Dhalli for registration of F.I.R . He found some pieces of broken bangles, a plastic cover of clamp of vehicle and some coins. He took these articles into possession and also blood stained earth. Blood stained earth and other articles were put in separate parcels. Both the parcels were sealed with seal 'D' and were taken into possession vide memo Ex.PW-1/A. Pieces of broken bangles and a shoe on which word "zoom" appeared were taken into possession vide memo Ex.PW-1/D. He found hair stuck in the fists of the deceased. These were wrapped in a piece of paper and taken into possession vide memo Ex.PW-1/C. Sample of soil was taken into possession vide memo Ex.PW-1/E from a place 10-15 feet away from the place where the articles were found. He prepared site plan Ex.PW-59/C. He filled in form 25-35 (1) (a) Ex.PW-1/F and form 25-35 (1) (B) Ex.PW-59/D. The dead body was sent to I.G.M.C. Shimla for postmortem examination. Accused were arrested on 6.2.2006. On 8.2.2006 accused Pankaj made a disclosure statement vide Ex.PW-11/A. On the statement Ex.PW-11/A accused Pankaj and witnesses Desh Raj and Roshan Lal put their signatures. Thereafter, accused Pankaj produced from Dharampur-Kasauli road, two foot mats, to which some hair were stuck and the blood stained bangles. The same were taken into possession vide memo Ex.PW-11/B. The hair were separated and put in parcel while the foot mats and bangles were put in a separate parcel and both the parcels were sealed with seal 'H'. On 9.2.2006, accused Vijay Sharma made a disclosure statement that he has thrown his shoes and socks in a field behind the Service Station in village Barnoh and that suitcase of Pankaj was lying at his Dhaba at Bangana and that he could produce the same. His statement Ex.PW-14/D was recorded. The same was signed by accused Vijay Sharma and the witnesses Ishwar Dutt and Het Ram. On 12.2.2006, accused Pankaj made a disclosure statement that he has given his mobile phone handset Nokia 2600 for repair at Hatli and had instructed his father to collect the same from there and that he could produce the same from his house. His statement Ex.PW-13/A was recorded and the same was signed by him and the witnesses Suminder and Tek Chand. On 16.2.2006, accused Pankaj produced a Drat from the spot. It was taken into possession vide memo Ex.PW-26/A. It was put into a parcel. A sample of seal Ex.PW-59/R was taken separately. Memo of the spot of recovery Ex.PW-59/T was prepared. On 14.2.2006, checking register of traffic barrier Shoghi was taken into possession and in this regard memo Ex. PW-23/A was prepared. Register Ex.PW-23/B contained an entry about the Tata Spacio Vehicle crossing the barrier during the night intervening 1st and 2nd day of February. He prepared the challan and put up the same in the court. According to him, Ex.PW-1/F and Ex.PW-59/D were signed by him. These were forms 25-35 (1) (A) and 25-35 (1) (B), in which details regarding the articles found near the dead body, were mentioned. He has admitted that column No. 15, in which the details of anything held by the accused in his fists, if any, are to be provided. He has also admitted that PW-2 Dhani Ram did not disclose on 3.2.2006 to him qua receiving of phone call by the deceased from Sunny or noting down the telephone number given by him on the yellow paper and the diary. He recorded his statement in the Police Station. He did not visit the house of deceased on 3.2.2006. The search of the vehicle of deceased was not conducted in his presence. No report qua missing of deceased was made either to the Police Station or to the Police Post prior to recovery of dead body of the deceased. On 8.2.2006, Desh Raj and Roshan Lal told him that they came to the Police Station to know about the progress of investigation of that case. He has admitted that near Police Station, Dhalli, there are residential or non-residential buildings. He has also admitted that Desh Raj and Roshan Lal are not residents of Dhalli. They were acquaintance of the deceased. He has also admitted that there is a Bawari near the place where foot mats etc. were recovered, so it can be said that any one can wash their vehicles. In his cross-examination, he has also admitted that the bridge near the place where the Drat was recovered was at a distance of 20-25 feet. At the time of recovery of Drat, face of the accused was not covered. On an intensive look, part of Drat was visible from the road. There was some water and some grass at the place from where Drat was recovered. He has admitted that Jatinder was taken to several places for recovery.
67. There is no eye witness in the present case. Case of the prosecution is based on circumstantial evidence. It is settled law by now that in order to prove the case on the basis of circumstantial evidence, the chain must be complete and all the circumstances must point out exclusively towards the guilt of the accused. It is in this backdrop, we would appraise the evidence led by the prosecution.
68. The first circumstance, which we would like to go into is: whether the accused Pankaj was in constant touch with the deceased immediately before his death or not. PW-1 Prem Chand has deposed that the shoe which was lying outside the culvert bore a telephone number. Later on, he stated that the telephone number was on one of the shoes. It is not believable that a person would write his telephone number on the shoe.
69. PW-2 Dhani Ram has deposed that he, deceased Suresh and his mother Kamla Devi (PW-6) were coming to Shimla to attend court hearing. When they were on way, a telephone of one Sunny of village Bangana came on Suresh's mobile phone informing that he was free on that day and that if the goods were needed, he could bring them from Bangana and drop at Chabba. He was sitting in front with Suresh. Sunny had disclosed the telephone number of Pankaj and he was asked by Suresh to write down the number. He first wrote the telephone number on a yellow paper and thereafter in the Diary of Suresh. In his cross-examination, he has admitted that his statement was recorded at I.G.M.C. He has not disclosed to the police regarding Sunny's phone and regarding his noting down the phone number on the yellow paper and the diary. It is only in the supplementary statement that he has stated so. PW-6 Kamla Devi is the mother of deceased. According to her also, when they were coming to Shimla, her son received some call from Sunny. When they were going back, phone calls were also received from Sunny. Sunny gave telephone number of Pankaj. Her son asked Dhani Ram to note down the phone number, which he noted on a yellow paper and thereafter he noted that number in a diary. PW-7 Anil Rana has deposed that he was running a shop at Bangana. He had taken an agency of Reliance Mobile. In the month of February, 2006, Police arrived at his shop. Accused Pankaj had purchased from his shop mobile phone connection No. 98171-58297. Envelop of the SIM card was lying at his shop, which he handed over to the police. According to him, subscription form was filled by accused Pankaj, which was also handed over by him to the police vide memo Ex.PW-7/B and SIM card Ex.PW-7/C. However, he could not produce the letter regarding creation of agency in his name by the company. He has also admitted that only name had been entered in Ex.PW-7/B and rest of the columns were blank. The explanation given by him is that accused Pankaj told him that he would be coming to him in a day or two with his photograph and proof of residence. He did not remember the date when the SIM card was issued. He was supposed to send the subscription form to the company.
70. PW-13 Constable Suminder has deposed that accused Pankaj had disclosed that he has given his mobile phone Nokia 2610 for repair at a shop at Bangana and he could identify the shop. His statement Ex.PW-13/A was recorded to this effect. PW-21 Om Parkash has deposed that he was running a mobile phone shop at Shah Talai in the name and style of "Aditya Communications". On 1.2.2006 at about 5.30 P.M., a boy came to his shop and asked him to fit a charger in his vehicle. However, he could not do the same. He has further deposed that he could not say that those two boys were amongst those who had come to his shop to fit the charger. He was declared hostile. PW-33 Dev Raj is the father of accused Pankaj. He was declared hostile. In his cross-examination by the learned Public Prosecutor, he has deposed that he has produced to the police at Police Station handset NOKIA 3315. This handset belonged to his younger son Neeraj Kumar. Pankaj was having a handset of Samsung Company, which the police had taken into possession from him the moment he was arrested. He has denied that there was repair shop of phone handset at Hatli. He has also denied that Pankaj was having the phone handset NOKIA 2600. Volunteered that it was handset NOKIA 3315, which was given for repair at Bangana by him and was collected from the shop by him. PW-35 ASI Mela Ram has testified that S.H.O. Bangana directed him to go to the accused Pankaj's house at Bhabba to recover mobile phone. Witnesses Raghubir Singh and Mehar Chand were associated in the investigation. At Bhabba, Dev Raj, father of accused Pankaj produced to him mobile handset NOKIA 2600. Dev Raj opened the handset and told that there was no SIM in the same. He put the same in a parcel and sealed with seal 'M'. Memo Ex.PW-32/B was prepared. Sample seal 'M' was drawn separately. PW-58 Vineet Sharma has deposed that on the request of the police, their office issued to the police through letter Ex.PW-58/A and call details Ex.PW-58/B. Certificate to this effect Ex.PW-58/C was issued by Servesh Mathur, who was Circle Head. In his cross-examination, he has deposed that documents Ex.PW-58/A to Ex.PW-58/C had been issued before he joined the office. The call details were generated by computer. The call details were not generated by Servesh Mathur personally from the computer. He could not narrate the name of the persons, who generated the call details from the computer, as he was at that time not posted in the office. He has admitted that it is only on the basis of the certificate Ex.PW-58/C that he was stating that the computers were functioning properly. According to him, there was no certificate of call details on Ex.PW-58/B. He has also admitted that Ex.PW-58/C does not contain the duration of calls. Such details were on Ex.PW-58/B.
71. Statement of PW-1 Prem Chand does not inspire confidence as he has stated that the shoe which was lying outside the culvert bore a telephone number and then stated that telephone number was on one of the shoes. PW-2 Dhani Ram in his statement recorded in I.G.M.C. has deposed that Suresh Kumar had told him to note down the phone number of accused Pankaj which he noted down in yellow paper. He has stated so in his supplementary statement. PW-7 Anil Rana could not produce the letter on the basis of which the agency was created by the company in his favour. The form filled up was incomplete. There was no photograph of the accused. The form was never sent to the company. It is also not understandable why the SIM card cover was lying in his shop when it was already purchased by the customer. According to PW-13 Constable Suminder, accused Pankaj had made disclosure statement Ex.PW-13/A that he has given his mobile phone NOKIA 2610 for repair at a Shop at Bangana and he could identify the shop. However, statement of PW-13 Constable Suminder has not been supported by PW-33 Dev Raj, who was declared hostile by the prosecution. In his cross-examination conducted by the Public Prosecutor, PW-33 Dev Raj has denied that he has produced before the police handset NOKIA 2600. According to him, it was handset NOKIA 3315, which belonged to his younger son Neeraj Kumar. He has denied that accused Pankaj had given handset NOKIA 2600 for repair at a shop in village Hatli and he had collected the same from there.
72. Since the call details were computer generated the same were required to be proved as per the provisions of Evidence Act. PW-58 Vineet Sharma has deposed that the call details were not generated by Survesh Kumar personally from the computer, but he has issued certificate Ex.PW-58/C. He did not remember the name of the person, who has generated the call details. He did not know whether the computer was functioning properly or not. He has stated so on the basis of Ex.PW-58/B. The prosecution has failed to prove that it was accused Pankaj, who had been calling deceased Suresh Kumar repeatedly.
73. Now, the Court will advert to the conduct of the parents of the deceased, his close relatives and servant. PW-2 Dhani Ram has deposed that the deceased was his cousin and indulged in illicit trade of liquor. According to him, Mushu Ram, father of deceased came to his house and informed him that Suresh had been missing since the 1st day of the month. He and Mushu Ram went to Police Post, Suni to lodge the report. There they were informed by the police that the police has found a dead body at Mandri. In his cross-examination, he has deposed that a written report was given to the police that Suresh has gone missing. PW-3 Mushu Ram is the father of deceased. According to him, on 1.2.2006, his son Suresh and their servant Jatinder went to Dhadheog in a vehicle. They went at about 6 or 6.30 P.M. Some liquor was to be received by his son at Dhadheog and he was to return home, but he did not come. On 2.2.2006, he went to attend his duties. When he returned ho\me, after his duties, his wife informed him that a telephone call from Jatinder was received at 12.00 noon informing that the vehicle had come from Dhalli side and that Suresh Kumar who had gone in that vehicle has not returned. Thereafter, his wife sent Khem Raj to Dhadheog. Khem Raj brought his son's vehicle home and also brought Jatinder with him. On 3.2.2006, he, Dhani Ram, Khem Raj and Jatinder went to police post Suni and informed the police about his son missing. Police told that they have found a dead body during the night and that the body has been sent to I.G.M.C. Shimla. It is evident from the statement of PW-3 Mushu Ram that he came to know that Suresh Kumar had not come home in the morning and despite that PW-3 had gone to attend his duties on 2.2.2006. He was informed by his wife at 12.00 noon that his son has not come back. His wife sent Khem Raj to Dhadheog to bring the vehicle. His mother's immediate reaction would have been to report the matter about the missing of her son. PW-3 Mushu Ram has admitted in his cross-examination that Jatinder was first called by the police for interrogation and the police kept him in the police station for about two days. He has also admitted that he has not disclosed to the police that his wife had told him that she received a phone from Jatinder at 12.00 noon and then deposed that he had disclosed this fact to the police. Deceased Suresh Kumar was nephew of PW-5 Khem Raj. On 1.2.2006, he made a telephone call to Suresh at 9.30 P.M. He told him that he and Jatinder were at Dhadheog. On the next day, he received a telephonic call from the mother of Suresh informing him that Suresh has not returned. He also disclosed that the vehicle of Suresh was lying at Dhadheog. He took the keys from the mother of Suresh and went to Dhadheog where Jatinder was found sitting in the vehicle. Jatinder disclosed to him that Suresh went in a vehicle telling him that he would be returning soon. The conduct of PW-5 Khem Raj is strange. He should have searched for his nephew instead of simply going for bringing the vehicle back to his house. PW-5 Khem Raj in his cross-examination has deposed that he did not disclose to the police the facts which Jatinder told him nor he disclosed about the telephonic talk which took place between him and Suresh. He has also deposed that when he brought the vehicle on 2.2.2006 to Chabba from that time until the vehicle was searched by the police, he had not seen the diary. According to the prosecution case, Suresh Kumar had told PW-2 Dhani Ram to write down the telephone number and the same was written by Dhani Ram in a yellow paper and thereafter in a diary. If the diary had been in the vehicle, it would have definitely been noticed by PW-5 Khem Raj. PW-6 Kamla Devi is the mother of deceased. According to her, Suresh Kumar came to Dadheog with Jatinder. Suresh and Jatinder did not come during night. Next day, Jatinder made a phone call to her and told that Suresh has gone in some vehicle with three persons but he has not come back. She made a telephone call to Khem Raj and asked him to come home and then to go to Dadheog to bring the vehicle back. She handed over the second key of the vehicle to Khem Raj and after some time Khem Raj and Jatinder brought the vehicle to Chabba. PW-6 Kamla Devi was the mother of deceased. She was supposed to search for her son instead of asking Khem Raj to bring the vehicle back.
74. PW-4 Jatinder was working with Suresh Kumar. He has also deposed that when Suresh did not come he made a telephone call from the booth to the house of Suresh. After some time, maternal uncle of Suresh came there with keys of vehicle. He narrated whole incident to Khem Raj. Then they came to Chabba with the vehicle. In his cross-examination, he has admitted that he has stated the incident to Khem Raj and not to the father of deceased nor to the police. He was the first one to be called by the police for interrogation. He was allowed to leave after seven days. The police interrogated him and took him to several places. He has admitted that the police has insisted upon him to produce the Drat with which Suresh was killed. He has told the police sometime that Drat was towards Mandri and sometime stated that the same it was some other place. He was also suspect in the case, as he was the person, who had travelled with Suresh Kumar to Dadheog.
75. The alleged weapon of offence, as per the prosecution story, is Drat. According to the prosecution, accused Pankaj has made a disclosure statement Ex.PW-29/A on 15.2.2006. Statement was made before PW-29 Head Constable subhash Chand and PW-34 Ranjit Singh. PW-34 Ranjit Singh has stated that he had gone to the Police Station, Dhalli on 15.2.2006 in connection with his work. Accused Pankaj was there in the Police Station. Head Constable told him that Pankaj has produced a Drat. This Drat was in the Police Station. He was declared hostile. He was cross-examined by the Public Prosecutor. He has denied the suggestion that on 15.2.2006 Pankaj made a disclosure to the police in his presence to the effect that he has thrown a Drat in a canal and that he could produce the same. According to PW-34 Ranjit Singh, Head Constable had told him that Pankaj had produced Drat in the Police Station. Since the Drat had already been recovered, the statement was not required to be recorded. It casts serious doubt the manner in which the Drat was recovered.
76. PW-26 Sewa Singh has deposed that accused Pankaj was walking ahead of them and got recovered a Drat from Kotla canal. There was little water in the canal. S.H.O. prepared sketch of Drat. The Drat was put into a piece of cloth and sealed with seal 'O'. The seal after use was handed over to him. He has not produced the seal in the Court. PW-27 Rattan Chand has deposed that at about 7.00 A.M., a vehicle of Dhalli police came there. Accused was with the police. Police people asked him and Sewa Singh to join them. He stopped at the bridge. From there he pointed at Drat lying below in grass and water. The accused brought the Drat, which the police wrapped in a piece of cloth. In his cross-examination, he has admitted that the Drat was lying below the bridge. He has also deposed that the Drat was visible from the bridge. There was growth of grass of half foot height and the water was also half foot deep. PW-59 Vijay Kumar has deposed that Drat was recovered at the distance of 20-25 feet from the bridge. It was on an intensive look a part of Drat was visible from the road. There was some water and some grass at the place from where Drat was recovered. It has come in the statements of these witnesses that there was grass and water. Thus the Drat could not be visible from the bridge. It was thrown from a distance of 20-25 feet as per the statement of PW-59 Vijay Kumar. Thus, the recovery of Drat always remained under cloud.
77. According to the prosecution, accused has made a disclosure statement Ex. PW-11/A, to the effect that on the intervening night of 1st/2nd February, he burnt the blood stained clothes, washed the vehicle and threw away the foot mats at a Bawari near Dharampur. The disclosure statement was signed by PW-11 Roshan Lal. According to him, at about 12.00 noon, he alongwith police and accused Pankaj proceeded towards Dharampur. They met Rama Nand. He was associated by the police. Accused Pankaj directed them and the police party to proceed towards Garkhal road. At a distance of 3-4 Kms from there, they reached at Bawari. Accused Pankaj stated that on that Bawari, he had washed his vehicle. Thereafter, accused Pankaj while moving ahead of them took them to a place below the road, where accused produced to the police broken bangles, ash of burnt clothes, blood stained foot mats with hair on the foot mats. These were taken into possession vide memo Ex. PW-11/B. In his examination-in-chief, he has deposed that on 8.6.2006, he and Des Raj arrived at 9.00 A.M. at Police Station, Dhalli, to enquire about the murder of Suresh Pradhan. In his cross-examination, he has admitted that they were not called by the police on 8.2.2006. They enquired from the S.H.O. about the progress of the case. The ash, foot mats etc. were below the road just near the wall. He has admitted that many other persons also washed their vehicles there. PW-12, Rama Nand has deposed that he was present at Dharampur on 8.2.2006. Police vehicle came there. He signaled to stop. The vehicle was stopped. In the vehicle, there were police officials, Pankaj and one Roshan Lal. Police asked him to call some respectable persons from the locality. A constable was sent and Prabhu Dayal, Vice President came there. They took him with them and went towards Bawari. Accused Pankaj asked them to proceed towards Bawari. On reaching Bawari, accused Pankaj asked to stop the vehicle. Pankaj stated that he had washed his vehicle there. Thereafter, accused Pankaj took them below the road, where ash, bangles and blood stained foot mats were lying. Some hair was also stuck to the foot mats. The police put the hair into a piece of paper and parceled up in a piece of cloth. Similarly, the bangles and the foot mats were taken into possession. In his cross-examination he has deposed that he has retired from police Department as head constable. S.H.O. Vijay Sharma, remained posted in Solan. Therefore, he knew him but there was no intimacy between them. Statement of PW-11 Roshan Lal that he had gone to the Police Station to inquire about the progress of the case does not inspire confidence. According to him, accused Pankaj had taken the police party at Bawari where the vehicle was alleged to have been washed by him. The Police has taken into possession ash and foot mats. According to him, hair were stuck in the foot mats. If the vehicle had been washed, there was no occasion for the hair to remain on the foot mats. According to the prosecution, the foot mats were washed on the intervening night of 1st and 2nd February when the accused burnt the blood stained clothes. The recovery was effected on 8.2.2006. It has come in the statement of PW-11 Roshan Lal that many vehicles are washed at the Bawari. The presence of PW-12 Rama Nand Yadav on the spot is also doubtful. He has retired as Head Constable from the Police Department. There were other independent persons available, who could be associated but the police has only associated PW-12 Rama Nand Yadav during the alleged recovery of ash and foot mats. There was no occasion for him to stop the police vehicle and to get the lift to go to Gadkhal.
78. According to the prosecution, the vehicle was again washed at Kishan Motors Service Station on 2.2.2006. Prosecution has relied upon the statements of PW-9 Karam Chand and PW-10 Rajinder Singh. PW-9 Karam Chand has deposed that on 2.2.2006, three boys brought a Tata Sumo vehicle at his workshop for washing. He did not remember the registration number of the vehicle, however, last digits were 97. He was sleeping. Those boys woke up him. He washed the vehicle from outside. At the time of washing, they kept the seat cover outside the vehicle, but while leaving, they left the seat cover is Ex. P-15 there. The police has gone to the workshop on 6.2.2006. It is not believable that why the accused would leave seat cover behind when according to the prosecution case itself they had washed the vehicle at Bawari on the intervening night of 1st and 2nd February, 2006. According to PW-10 Rajinder Singh, owner of workshop Karam Chand told that on 2.2.2006 Tata Sumo vehicle No. HP-20-B-2797 had come at his shop for washing. It was brought by three boys. However, it has come in the statement of PW-9 Karam Chand that he did not remember the registration number of the vehicle, however, last digits were 97. The seat cover was sealed and was taken into possession vide memo Ex.PW-9/A. However, the seal has not been produced in the court though the same was handed over to him. According to him, he has misplaced it somewhere. Thus, the recovery of hair from the spot as per the case of the prosecution cannot be belied. The vehicle, even as per the prosecution case, was washed twice, i.e. initially at Bawari and thereafter at Kishan Motors Service Station.
79. The prosecution has also tried to prove that accused Pankaj had driven the vehicle bearing registration No. HP-20-B-2797 and had crossed through traffic Barrier, Shoghi. PW-23 HHC Bhag Singh has deposed that he was deputed at Shogi Barrier in the year 2006. On 14.2.2006, he, HHC Rajinder Singh and HC Pritam Singh were on duty at the barrier and had laid a Naka for stopping the vehicles for the purpose of checking. During the intervening night of 14/15.2.2006 after 12 midnight, vehicle No. HP-20-2797 came at the barrier. The vehicle was signalled to stop and was checked. He was declared hostile. He was cross-examined by the learned Public Prosecutor. He has volunteered that the vehicle came at the barrier on the night intervening 14th/15th day. He has denied that the vehicle came at the barrier during the intervening night of 1st/2nd February, 2006 and the register was taken into possession by the Investigating Officer on 14.2.2006. He has also denied that the occupant of the vehicle had disclosed his name as Vineet Kumar not Bimal Kumar. He has admitted that at page 73, name written is Vineet Kumar. He has also admitted that there was no entry after 13/14.2.2006. He was cross-examined by the defence counsel. He has deposed that he did not remember that how many persons were sitting in each vehicle, which crossed the barrier during the night. It thus casts serious doubt on the prosecution story that the vehicle had crossed on 1/2.2.2006. According to PW-23 HHC Bhag Singh, the vehicle had crossed on 14/15.2.2006 and not during the intervening night of 1/2.2.2006.
80. PW-28 Pritam Singh has deposed that on 14.2.2006, Head Constable Rajinder Singh, Police Station, Dhalli took into possession from him the checking register of Shoghi Barrier. On 1.2.2006, vehicle No. HP-20-2792 Spacio crossed the barrier and in this connection entry was made by HHC Rajinder Singh on the register. He has proved the register Ex.PW-23/B. According to him, the entry was made at Sr. No. 3 of page 73. Memo to this effect was prepared vide Ex.PW-23/A. In his cross-examination, he has admitted that the police used to mention the description of the Licencing Authority, however, there was only licence number and there was no description about the Licencing Authority. He has admitted that on page 73, on all the entries, there was also description of Licencing Authority.
81. PW-30 HHC Rajinder Singh has deposed that he was posted at Shoghi barrier from July, 2005 to July, 2006. On 2.2.2006 at mid night vehicle No. HP-20-B-2797 came on the barrier. It was being driven by one Vineet Kumar. They checked the driving licence of Vineet Kumar and allowed the vehicle to go. On 14.2.2006, HC Pritam Singh produced the register to the police and the same was taken into possession vide memo Ex.PW-23/A. In his cross-examination, he has deposed that he thought that the driving licence of Vineet Kumar was issued by R.L.A. Solan. They enter the number of the driving licence in the register. The cutting in the entry in the register was made by him. Volunteered that the driver had stated his name as Raju and he had entered the name in the Register as Raju. When the driving licence was seen, name entered therein was found to be Vineet Kumar. When he asked the driver, he stated that at home, he is called as Raju, otherwise his name is Vineet Kumar. This necessitated cutting in the register. When his statement was recorded by the police, he disclosed that the vehicle was being driven by Vineet Kumar. However, when he was confronted with statement mark 'R', it is not recorded. Name of the accused is Pankaj and not Vineet Kumar.
82. PW-22 Shashi Pal has deposed that he was working as Miscellaneous Clerk in the office of R.L.A. Bhoranj since March, 2007. He has brought new Driving Licence Register. According to him, as per record, licence to drive Scooter/Motor Cycle/LMV was issued on 3.5.2005 by Licencing Authority, Nadaun in favour of Vineet Kumar son of Kikkar Singh, V.P.O. Kohla, Tehsil Nadaun. Entry in this regard was made as entry No. 4364. Photograph of Vineet Kumar was affixed on the register. As per practice, after preparing the licence, they used to keep them in a tray from where people used to collect the licences. On 20.5.2005, Vineet Kumar made application in their office stating therein that he has searched three-four times but he was not able to find the same. In view of this, R.L.A. ordered for issuance of new licence. Then on 20.5.2005, fresh licence was issued in favour of the applicant. In his cross-examination, he has admitted that the register contains photograph of everyone in whose favour licence was issued. He has also admitted that there were no photographs on entry Nos. 4374, 4464, 4479 and 4485. The application was moved in form No. 4 by Vineet Kumar, however, it has been signed as Avaneet Kumar. For obtaining duplicate licence, the application has been moved in the name of Vineet Kumar and has been signed as Avaneet Kumar. The R.L.A. ordered for issuance of licence in the name of Avaneet. He issued licence in the name of Vineet Kumar because in the previous entry No. 4364, name mentioned was Vineet Kumar.
83. PW-39 Avneet Kumar has deposed that his real name was Avneet Kumar. He has obtained the driving licence from R.L.A. office Nadaun. His name written therein was Vineet Kumar. He himself added letter 'A' and made it Avneet Kumar. The version of the prosecution that accused has affixed his photograph by removing the photograph of Avneet Kumar cannot be believed at all. PW-33 Dev Raj, father of accused Pankaj has deposed that he has produced the driving licence of Pankaj to the police. In view of statement of PW-33 Dev Raj, statement of PW-36 Yash Pal cannot be believed. PW-36 Yash Pal has deposed that at Bhavva Dev Raj Sharma produced a driving licence No. 4364/SDM, which was issued in the name of Vineet Kumar, but bore photograph of Pankaj to SI Raj Kumar in his presence and in presence of Naresh Kumar. The photograph was attested by a Veterinary Officer of Veterinary Hospital, Bangana. The licence was taken into possession vide memo Ex.PW-33/A. There is no explanation why accused would affix his photograph on the licence of Vineet Kumar. Statement of PW-22 Shashi Pal that after preparing the licence they used to keep the licences in a tray from where people used to collect their licenses and the same was not found to be in a tray cannot be believed.
84. Accused was also charged and convicted under section 468 of the Indian Penal Code. In order to prove charge under section 468 of the Indian Penal Code, it is necessary for the prosecution to prove that the accused committed forgery that he did so intending that the document forged was to be used for the purpose of cheating. Prosecution has failed to prove that the accused has forged the driving licence. The prosecution evidence to this effect has already been discussed threadbare.
85. According to the prosecution, on 1.2.2006 at Shoghi accused cheated Head Constable Bhag Singh pretending to be Vineet Kumar, which was likely to cause damage to Vineet Kumar and thereby committed an offence punishable under section 419 of the Indian Penal Code. The prosecution has failed to prove the case against the accused under section 419 of the Indian Penal Code. Essential ingredients of offence 419 of the Indian Penal Code are:
a) That the accused cheated someone; and
b) That he did so by impersonation.
86. It is necessary under section 419 of the Indian Penal Code for the prosecution to prove that firstly accused pretended himself to be some other person or imaginary person, or he knowingly substituted one person for another, or represented that he or any other person was a person other than he or such person other than what he really was and secondly by such process he cheated some innocent person. The prosecution has failed to prove that the accused has used fake document for taking advantage for himself in view of statements of PW-22 Shashi Pal and PW-33 Dev Raj.
87. Accused was also charged for offence punishable under section 471 of the Indian Penal Code. According to the prosecution, on 1.2.2006 at Shoghi before Head Constable Bhag Singh used the forged licence issued in the name of Vineet Kumar as belonging to him as a genuine document. In order to prove charge under section 471 of the Indian Penal Code, essential ingredients are that it is fraudulent or dishonest use of document as genuine and by the person using must have knowledge or reason to believe that the document is a forged one. The prosecution has failed to prove the charge under section 471 of the Indian Penal Code in view of statements of PW-22 Shashi Pal, PW-23 Bhag Singh, PW-28 Pritam Singh, PW-30 Rajinder Singh, PW-33 Dev Raj, PW-36 Yash Pal and PW-39 Avneet Kumar.
88. Now, we would discuss the evidence led by the prosecution to prove that whether the hair stuck in the hands of deceased belonged to accused Pankaj. According to PW-1 Prem Chand, he has noticed hair in the hands of deceased Suresh Kumar. Case of the prosecution is that hair of accused were also removed by the doctor and were sent for comparison to Forensic Science Laboratory, Junga. Case of the prosecution is that hair were also found on the foot mats. Prosecution version that hair were found on the foot mats cannot be believed for the simple reason that they were taken into possession from open place and coupled with the fact that the vehicle was washed as per the prosecution version firstly at Bawari and thereafter at Kishan Motors Service Station.
89. PW-51 Dr. Mrs. Sangeet Dhillon has deposed that she has taken sample of hair of the accused. According to PW-52 Dr. Arun Sharma, the sample of hair of the victim were not pulled but were cut. The sample of some hair were sent through parcel No. PIA, which on analysis were found to be broken with force. The sample of hair of accused Pankaj and Vijay were also sent to him. He could not say that the sample of hair of accused was cut or pulled. Volunteered, Doctors send the sample of hair by cutting the hair. According to him, hair examination is based on colour, diameter, length, size, shape, distribution pattern of pigments granules and streaks. According to him, facility for DNA profiling is not available in the State Forensic Science Laboratory, Junga. He has also admitted that he has not prepared any cross-section of the sample and questioned hair. Taking into consideration the injuries received by the deceased as per the statement of PW-44 Dr. H.S. Sekhon, it is difficult to believe that hair would have stuck to his hand. Even PW-59 Vijay Kumar has admitted that he has not stated in the forms Ex.PW-1/F and Ex.PW-59/D that anything was held by the deceased in his hand. He has admitted that he has not mentioned that hair were found in the hands of deceased. Though the doctor has concluded that hair sent by the police for examination were found to be of accused, but in view of inherent contradictions in the statements of the witnesses and the evidence discussed hereinabove, it cannot be believed.
90. According to PW-52 Dr. Arun Sharma, he had received three sample seals i.e. 'D', 'B' and 'DKG'. The blood group of blood found in the vehicle could not be ascertained being insufficient for further examination90. According to PW-52 Dr. Arun Sharma, he had received three sample seals i.e. 'D', 'B' and 'DKG'. The blood group of blood found in the vehicle could not be ascertained being insufficient for further examination. He has also deposed that there is no definite study through which age of the blood stains can be ascertained.
91. Moreover, in the instant case, other accused Sandeep Kumar and Vijay Kumar have been let off almost on the identical evidence. Learned Sessions Judge has convicted accused Pankaj only on the ground that deceased and accused were having some dealing and 15 calls were made on their mobile phones to each other on 1.2.2006, i.e. just before the killing. The version of the prosecution that Suresh Kumar has noted the name of Pankaj Kumar and told PW-2 Dhani Ram to write down the number has been disbelieved by us, as discussed hereinabove. The recovery of telephone set has also not been proved. Learned Sessions Judge has come to a wrong conclusion that accused Pankaj had actually come to the area and entry was found at Shoghi barrier. The entry made at Shoghi barrier has become doubtful as the prosecution witness was declared hostile. According to him, the vehicle had crossed on 14/15.2.2006 and not during the intervening night of 1/2.2.2006. There is cutting in the register, which has not been explained. According to the learned Sessions Judge human blood was found in the vehicle of accused Pankaj and also on the seat cover of the same vehicle. Human blood could not be present if the vehicle had been washed at Kishan Motors Service Station. It is not believable that accused would leave the seat cover at the place where vehicle was washed. The prosecution has tried to prove that the vehicle was washed twice, i.e. firstly at Bawari and secondly at Kishan Motors Service Station. According to the prosecution, accused has made disclosure statement Ex. PW-11/A the manner in which he burnt the blood stained clothes, washed the vehicle and threw away the foot mats at a Bawari near Dharampur. PW-12 Rama Nand Yadav was present on the spot. He is Ex-Head Constable. It has come on record that other vehicles were being washed at the Bawari. In view of this, the attempt of the prosecution to prove that the foot mats were left at the Bawari cannot be believed, on which human hair were stuck. The human hair found in the fist of the deceased itself is doubtful as per the appraisal of the evidence by us. It was not so stated in the inquest report and we have already noticed that in view of the grievous injuries received by the deceased he was not in a position to pull hair in his fist. The prosecution has failed to prove the case based on circumstantial evidence. There are gaps in the version of the prosecution witnesses, which have not been explained at all by the prosecution the manner in which the deceased was killed.
92. PW-6 Kamla Devi in her statement recorded under section 161 of the Code of Criminal Procedure has stated that somebody was calling his son from Una. However, she has made improvement in her statement while appearing in the court as PW-6 that it was Sunny, who was calling her son and trying to take the number of accused. According to her, Dhani Ram has written the number in the diary. However, Dhani Ram has stated that he has written the number on yellow paper and thereafter in diary.
93. According to the prosecution, PW-31 Rangil Singh had business relations with deceased. How the accused has come into picture has not been explained by the prosecution. The business of Rangil Singh was being look after by Sunny. PW-31 Rangil Singh has deposed that Sunny used to bring liquor for the deceased and some of Rs. 70,000/- as on 25.1.2006. PW-31 Rangil Singh has deposed that he received a telephone call from the family of deceased on 2.2.2006 at about 8 P.M. and 9 P.M. Neither the father nor the mother of the deceased has stated that they have tried to contact Rangil Singh after the disappearance of their son. According to PW-31 Rangil Singh, the mother also told that some party was coming from Una to Suni. The mother also disclosed him the telephone number of that party. He told him that he did not know any party having that phone number. On this, deceased's mother told him that Sunny was knowing the party having that telephone number. He made a telephone call to Sunny and wanted to know whose phone number was that. Sunny replied that he was not knowing whose number was that and that he has conveyed the number while he was drunk. He was also declared hostile. In his cross-examination, he denied that Sunny told him on telephone that he has arranged a talk between deceased on the one side and Pankaj and Vijay on the other side. Even this witness remained in Police Station, Bangana for two days and also for two days at Police Station, Shimla. He has also deposed that on 1.2.2006, Kishori Lal had been sent by him with Sunny in connection with trade of liquor. It further casts doubt whether Pankaj had the occasion to call deceased as per telephone call as per the version of mother of deceased PW-6 Kamla Devi and PW-2 Dhani Ram.
94. Their Lordships of Hon'ble Supreme Court in Shanmughan vs. State of Kerala, MANU/SC/0052/2012 : (2012) 2 SCC 788 have held that when a case is sought to be proved by prosecution on the basis of circumstantial evidence, burden on prosecution is that it must prove each circumstance in such a way as to complete the chain and at the same time it should be consistent with guilt of accused. Their Lordships have held as under:-
7. We take up for consideration the last submission made by the learned counsel for the appellant. We are inclined to agree that when a case is sought to be proved by the prosecution on the basis of circumstantial evidence, the burden on the prosecution is that it must prove each circumstance in such a way as to complete the chain and at the same time it should be consistent with the guilt of the accused. Any reasonable doubt in proving the circumstances must be resolved in favour of the accused. The accused must be given the benefit of any fact or circumstance which is consisted with his innocence, which is to be presumed, unless the contrary is proved by chain of circumstances.
95. Their Lordships of Hon'ble Supreme Court in Bruesh Mavi vs. State (NCT of Delhi), MANU/SC/0514/2012 : (2012) 7 Supreme Court Cases 45 have held that in order to sustain conviction, the prosecution is required to prove beyond reasonable doubt with clear inference that it was accused and accused only who committed the crime. Their Lordships have held as under:-
26. The brief conspectus of facts set out above demonstrates that there is no direct evidence to connect the accused-appellant with the firing incident involving the deceased. The only eye-witness examined by the prosecution, namely, PW 1 has categorically deposed that the accused-appellant Brijesh was not present at the place of the crime on the date of occurrence and, in fact, he had seen the accused-appellant for the first time in court. The second person accompanying the deceased accused Satish to the STD booth along with the firearm therefore remained unidentified. The prosecution, in the absence of any direct evidence, has sought to build up its case on the basis of circumstantial evidence.
27. The principles of law governing proof of a criminal charge by circumstantial evidence need hardly any reiteration. From the several decisions of this court available on the issue the said principles can be summed up by stating that not only the prosecution must prove and establish the incriminating circumstance(s) against the accused beyond all reasonable doubt but the said circumstance(s) must give rise to only one conclusion to the exclusion of all others, namely, that it is accused and nobody else who had committed the crime. The above principle is deducible from the five propositions laid down by this Court in Sharad Birdhichand Sarda vs. State of Maharashtra [MANU/SC/0111/1984 : (1984) 4 SCC 116 (para 153)] which principles have been consistently followed in Tanviben Pankaj kumar Divetia vs. State of Gujarat [MANU/SC/0550/1997 : (1997) 7 SCC 156], Vikram Singh vs. State of Punjab [MANU/SC/0062/2010 : (2010) 3 SCC 56], Aftab Ahmad Anasari vs. State of Uttaranchal [MANU/SC/0036/2010 : (2010) 2 SCC 583], Sanatan Naskar and anr. vs. State of West Bengal [MANU/SC/0492/2010 : (2010) 8 SCC 249] and Mohd. Arif alias ASshfaq vs. State (NCT of Delhi) [MANU/SC/0919/2011 : (2011) 13 SCC 621].
96. Their Lordships of Hon'ble Supreme Court in Sunil Clifford Daniel vs. State of Punjab, MANU/SC/0740/2012 : (2012) 11 Supreme Court Cases 205 have held that while dealing with a case of circumstantial evidence, court must take utmost precaution whilst finding an accused guilty solely on the basis of circumstances proved before it. The prosecution must establish each instance of incriminating circumstances by way of reliable and clinching evidence. Circumstances so proved must form a complete chain of events so that no conclusion other than one of guilt of accused can be reached. Their Lordships have held as under:-
28. The instant case is a case of blind murder and is based entirely on circumstantial evidence, as there is no eye-witness to the said incident.
29. In Sharad Birdhichand Sarda v. State of Maharashtra, MANU/SC/0111/1984 : AIR 1984 SC 1622, it was held by this court that, the onus is on the prosecution to prove, that the chain is complete and that falsity or untenability of the defence set up by the accused, cannot be made the basis for ignoring any serious infirmity or lacuna in the case of the prosecution. The Court then proceeded to indicate the conditions which must be fully established before a conviction can be made on the basis of circumstantial evidence. These are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;
(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.
Thus, in a case of circumstantial evidence, the prosecution must establish each instance of incriminating circumstance, by way of reliable and clinching evidence, and the circumstances so proved must form a complete chain of events, on the basis of which, no conclusion other than one of guilt of the accused can be reached. Undoubtedly, suspicion, however grave it may be, can never be treated as a substitute for proof. While dealing with a case of circumstantial evidence, the court must take utmost precaution whilst finding an accused guilty, solely on the basis of the circumstances proved before it.
97. Their Lordships of Hon'ble Supreme Court in Vadlakonda Lenin vs. State of Andhra Pradesh, MANU/SC/0991/2012 : (2012) 12 Supreme Court Cases 260 have held that in order to base conviction solely on circumstantial evidence, circumstances on which prosecution rely must be proved beyond all reasonable doubt and such circumstances must be capable of giving rise to inference which is inconsistent with any other hypothesis except guilt of accused. Their Lordships have held as under:-
12. The culpability of the accused-appellant, in the absence of any direct evidence, has to be judged on the basis of the circumstances enumerated above. The principles of law governing proof of a criminal charge by circumstantial evidence would hardly require any reiteration save and except that the circumstances on which the prosecution relies must be proved beyond all reasonable doubt and such circumstances must be capable of giving rise to an inference which is inconsistent with any other hypothesis except the guilt of the accused. It is only in such an event that the conviction of the accused, on the basis of the circumstantial evidence brought by the prosecution, would be permissible in law. In this regard a reference to the "five golden principles" enunciated by this Court in Sharad Birdhichand Sarda v. State of Maharashtra MANU/SC/0111/1984 : (1984) 4 SCC 116 may be recapitulated for which purpose para 153 of the judgment in the above case may be usefully extracted below:
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 Sahebrao Bobade v. State of Maharashtra: MANU/SC/0167/1973 : (1973) 2 SCC 793 where the following observations were made: 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.
98. Their Lordships of Hon'ble Supreme Court in Madala Venkata Narismha Rao vs. State of Andhra Pradesh, MANU/SC/1018/2012 : (2012) 13 SCC 679 have held that in order to secure a conviction on circumstantial evidence, prosecution must prove its case by cogent, reliable and admissible evidence. Each relevant circumstance must be proved like any other fact and upon a composite reading thereof, it must lead to a high degree of probability that it is only the accused and none other who has committed the alleged offence. Their Lordships have held as under:-
17. The law on appreciation of circumstantial evidence is now too well settled to bear any repetition. Suffice it to say that to secure a conviction on circumstantial evidence, the prosecution must prove its case by cogent, reliable and admissible evidence. Each relevant circumstance must be proved like any other fact and upon a composite reading thereof it must lead to a high degree of probability that it is only the accused and none other who has committed the alleged offence. In this regard, reference may be made to Munna Kumar Upadhyay v. State of A.P., MANU/SC/0524/2012 : (2012) 6 SCC 174 (authored by one of us, Swatanter Kumar, J).
99. Their Lordships of Hon'ble Supreme Court in Majenderan Langeswaran vs. State (NCT of Delhi) and another, MANU/SC/0631/2013 : (2013) 7 Supreme Court Cases 192 have held that while dealing with conviction based on circumstantial evidence, circumstances from which conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should also be consistent with only one hypothesis, i.e. the guilt of the accused. Onus lies on prosecution to prove that chain of event is complete and not to leave any doubt in the mind of Court.
3. On 30th November, 1996, an altercation is stated to have taken place between the accused and the deceased L. Shivaraman. As the accused had sustained some cut injuries on his hands, he reported the matter to the officials. On 1st December, 1996 when the ship was on high seas, the appellant took off from his duty as helmsman on the ground of pain in his hands due to cut injuries and another helmsman Baria was asked to do the duty as replacement. As the accused and the deceased were staying in Cabin No. 25, the accused was temporarily shifted from that cabin to Cabin No. 23 due to the above incident of assault. At about 1510 hours, the accused allegedly approached IInd Officer Kalyan Singh (PW-6) with a blood-stained knife in his hand and his hands smearing in blood and is alleged to have confessed before him that he had killed L. Shivaraman. On being asked by Kalyan Singh (PW-6), the appellant handed over the blood-stained knife to him which he placed in a cloth piece without touching the same. Kalyan Singh (PW-6) then intimated the Captain and other officers. The body of L. Shivaraman was found lying in Cabin No. 23 in such a way that half of it was inside the cabin and half of it outside. The officials of Shipping Corporation of India were informed. On incident being reported, pursuant to an instruction from concerned quarter, the ship was diverted to Hongkong. On being so directed by the Captain of the ship (PW-5), Kalyan Singh (PW-6) got the body of the deceased cleaned up for being preserved in the fish room with the help of Manjeet Singh Bhupal (PW-4) and Chief Officer V.V. Muralidharan (PW-18) took photographs. The blood-stained knife was kept in the safe custody of PW-5. The accused was then apprehended, tied and disarmed before being shifted to the hospital on board. Since the ship was having Indian Flag, as per the International Treaty of which India was a signatory, the act of the accused was subject to Indian laws. Accordingly, a case bearing R.C. No. 10(S) of 1996 was registered by the Central Bureau of Investigation (CBI) against the accused on 6th December, 1996.
16. 11. Now, we have to consider whether the judgment of conviction passed by the trial court and affirmed by the High court can be sustained in law. As noticed above, the conviction is based on circumstantial evidence as no one has seen the accused committing murder of the deceased. While dealing with the said conviction based on circumstantial evidence, the circumstances from which the conclusion of the guilt is to be drawn should in the first instance be fully established, and all the facts so established should also be consistent with only one hypothesis i.e. the guilt of the accused, which would mean that the onus lies on the prosecution to prove that the chain of event is complete and not to leave any doubt in the mind of the Court.
26. As discussed hereinabove, there is no dispute with regard to the legal proposition that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence as laid down by this Court. In such a case, all circumstances must lead to the conclusion that the accused is the only one who has committed the crime and none else.
100. According to Section 65-B (1) of the Indian Evidence Act, 1972, notwithstanding anything contained in the Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
101. As per Section 65-B(2), following conditions are required to be complied with in respect of a computer output:-
(a) The computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) During the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) Throughout the material part of the said period, the computer was operating properly or, if not; then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) The information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
As per Section 65-B(3), where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether-
(a) By a combination of computers operating over that period; or
(b) By different computers operating in succession over that period; or
(c) By different combinations of computers operating in succession over that period; or
(d) In any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers,
All the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
102. As per Section 65-B(4), In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say-
(a) Identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) Giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) Dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,
And purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
103. As per Section 65-B(5)-
(a) Information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) Whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) A computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
104. What is evidentiary value of electronic records has been succinctly dealt with by the Division Bench of Delhi High Court in State vs. Mohd. Afzal and Ors., MANU/DE/1026/2003 : 107 (2003) Delhi Law Times 385 (DB) as under:-
276. The normal rule of leading documentary evidence is the production and proof of the original document itself. Secondary evidence of the contents of a document can also be led under Section 65 of the Evidence Act. Under Sub-clause "d" of Section 65, secondary evidence of the contents of a document can be led when the original is of such a nature as not to be easily movable. Computerised operating systems and support systems in industry cannot be moved to the court. The information is stored in these computers on magnetic tapes (hard disc). Electronic record produced there from has to be taken in the form of a print out. Sub-section (1) of Section 65B makes admissible without further proof, in evidence, print out of a electronic record contained on a magnetic media subject to the satisfaction of the conditions mentioned in the section. The conditions are mentioned in Sub-section (2). Thus compliance with Sub-section (1) and (2) of Section 65B is enough to make admissible and prove electronic records. This conclusion flows out, even from the language of Sub-section (4). Sub-section (4) allows the proof of the conditions set out in Sub-section (2) by means of a certificate issued by the person described in Subsection 4 and certifying contents in the manner set out in the sub-section. The sub-section makes admissible an electronic record when certified that the contents of a computer print out are generated by a computer satisfying the conditions of Subsection 1, the certificate being signed by the person described therein. Thus, Sub-section (4) provides for an alternative method to prove electronic record and not the only method to prove electronic record.
277. Whether Section 65B casts a positive mandate on the person relying upon electronic record, to adduce affirmative evidence that at all material time the computer was working properly when information was being fed in it, and whether on facts, the computer generated call details have to be ignored due to alleged malfunctioning?
278. The last few years of the 20th Century saw rapid strides in the field of information and technology. The expanding horizon of science and technology threw new challenges for the ones who had to deal with proof of facts in disputes where advanced techniques in technology was used and brought in aid. Storage, processing and transmission of date on magnetic and silicon medium became cost effective and easy to handle. Conventional means of records and data processing became out dated. Law had to respond and gallop with the technical advancement. He who sleeps when the sun rises, misses the beauty of the dawn. Law did not sleep when the dawn of Information and Technology broke on the horizon. World over, statutes were enacted. Rules relating to admissibility of electronic evidence and it's proof were incorporated.
279. Did the law relating to admissibility and proof of electronic record have a positive mandate to be satisfied by the one who relies upon electronic record? The positive mandate being to establish positively that there was no malfunctioning of the equipment processing the operations at the relevant time, to which the record relates.
280. In England this positive mandate was statutorily enacted and the prosecution had to show by positive and affirmative evidence that it was safe to rely upon the document produced by a computer from out of its memory. The Police & Criminal Evidence Act, 1984 was enacted. But, while interpreting Section 69 of the said Act, the courts took a practical approach and gave an interpretation where computer generated record could be proved by a statement, made by an employee unfamiliar with the precise details of the operation of the computer, that the print out was retrieved from the computer memory and the computer was not malfunctioning. Section 69 reads as under:
(1) In any proceedings, a statement in a document produced by a computer shall not be admissible as evidence of any fact stated therein unless it is shown -
(a) that there are no reasonable grounds for believing that the statement is inaccurate because of improper use of the computer.
(b) that at all material times the computer was operating properly, or if not, that any respect in which it was not operating properly or was out of operation was not such as to affect the production of the document or the accuracy of it contents; and
(c) that any relevant conditions specified in rules of Court under Sub-section (2) below are satisfied.
(2) Provision may be made by the rules of Court requiring that in any proceedings where it is desired to give a statement in evidence by virtue of this section such information concerning the statement as may be required by the rules shall be provided in such form and at such time as may be so required.
281. In R.V. Shepherd, 1993 A. C. 380. Lord Griffiths, dealing with the defense argument held:-
The principal argument for the defendant starts with the proposition that the store detective was not a person occupying a responsible position in relation to the operation of the computer within the meaning of paragraph 8(d) of Schedule 3 to the Act and, therefore, was not qualified to sign a certificate for the purpose of providing proof of the matters contained in Section69(a). This I accept. Although the store detective understood the operation of the computer and cold speak of its reliability she had no responsibility for its operation. I cannot however, accept the next step in the defendant's argument which is that oral evidence is only acceptable if given by a person who is qualified to sign the certificate. The defendant does not go so far as to submit that evidence must be given by a computer expert but insists that it must be someone who has responsibility for the operation of the computer; either the operator or someone with managerial responsibility for the operation of the computer. Documents produced by computers are an increasingly common feature of all business and more and more people are becoming familiar with their uses and operation. Computers vary immensely in their complexity and in the operations they perform. The nature of the evidence to discharge the burden of showing that there has been no improper use of the computer and that it was operating properly will inevitably vary from case to case. The evidence must be tailored to suit the needs of the case. I suspect that it will very rarely be necessary to call an expert and that in the vast majority of cases it will be possible to discharge the burden by calling a witness who is familiar with the operation of the computer in the sense of knowing what the computer is required to do and who can say that it is doing it properly.
282. Statement by the witness that when the computer was working they had no trouble with operation of central computer was held sufficient in discharge of the affirmative burden.
283. In R v. Ana Marcolino, (CA "Crim.Div"), following the dictum of Lord Griffiths in R.V. Shepherd the evidence of the witness proving electronic record was analysed step wise which analyses is illuminative as to how the issue was dealt with. Lord Justice Henry posed the question: Does the evidence given by Mr. Slade satisfy the test in Shepherd, 1993 AC 380? The answer came as follows:
1). he had been employed by Vodaphone for over four years as the risk supervisor and his duties included identifying fraudulently used accounts and liaising with the police. This account had been used fraudulently.
2) He had retrieved from the computer the records relating to this mobile telephone and produced from those records the itemized account for the relevant period. To do so, he had accessed the billing records for that period.
3) he was not familiar with the precise details of the operations of the computer because he had not designed it. However, he had general knowledge of the system. He had no reason to believe that the computer records were inaccurate because of improper use.
4) Vodaphone is continuously audited by the DTI. No complaint has been made as to the accuracy of their records. Vodaphone has their own quality assurance department which instantly monitored the system.
5) he asserted that the computer was working properly at the relevant time. In support of that assertion he relied upon the following facts:
a) There was no record of any malfunction. Had their been, it would have been drawn to his attention by the billing department. In any event, the computer had ancillary equipment which would have taken over, had there been any failure or malfunction of the primary systems.
b) If there had been any malfunction, the billing records would be classed as 'in suspension'; those records were not.
c) The billing record itself is made without human intervention, although it is triggered by the use of a mobile phone. The system runs a series of internal checks as to accuracy and function before the call is made and the subsequent detail recorded. If there is any malfunction the records are put into suspension. The records of these calls had not been suspended.
d) The records in relation to malfunction were kept by persons who could not reasonably be expected to have any personal recollection of them. These persons had a duty to report any malfunction. None had been reported. Miss Calder submitted that the evidence of external audit is irrelevant. In our judgment, the jury was entitled to take into account that these records were produced by a large company providing a substantial public service the subject of licensing and external audit by the DTI. Such evidence goes directly as to whether there has been improper use. It is the view of this Court that the totality of the evidence as set out above satisfies the test propounded by Lord Griffiths. Mr. Slade was sufficiently familiar with the workings of the computer. The records are designed to reveal malfunction. None was revealed.
284. The conviction was found to be safe and the appeal was dismissed.
285. In DPP v. Me. Kewon, (1997) 1 Criminal Appeal 155, Lord Hoffman, applying Section 69 of the Police and Criminal Evidence Act, 1984 in relation to the inaccuracy in the time display in the computer print out, held:-
I shall for the moment assume that the inaccuracy in the time display meant that "the computer not operating properly". The question is therefore whether that was "such as to affect the production of the document or the accuracy of its contents". If the words are read literally, it did. The document said that the first test had occurred at 23.00 GMT when it was in fact 00.13 BST. As to one hour, the discrepancy is merely as to the way in which the time was expressed. 23.00 GMT is the same time as 00.00 BST. But the remaining 13 minutes cannot, I think, be dismissed as de minimis. The inaccuracy of the time reading therefore affected the accuracy of a part of the contents of the document. In my view, however, the paragraph was not intended to be read in such a literal fashion. "The production of the document or the accuracy of its contents" are very wide words. What if there was a software fault which caused the document to be printed in lower case when it was meant to be in upper case? The fault has certainly affected the production of the document. But a rule which excluded an otherwise accurate document on this ground would be quite irrational. To discover the legislative intent, it is necessary to consider the purpose of the rule. The first thing to notice is that Section 69 is concerned solely with the roper operation and functioning of a computer. A computer is a device for storing, processing and retrieving information. It receives information from, for example, signals down a telephone line, strokes on a keyboard or (in this case) a device for Chemical analysis of gas, and it stores and processes that information. If the information received by the computer was inaccurate (for example, if the operator keyed in the wrong name) then the information retrieved from the computer in the form of a statement will likewise be inaccurate. Computer experts have colourful phrases in which to express this axiom. But Section 69 is not in the least concerned with the accuracy of the information supplied to the computer. If the gas analyser of the Intoximeter is not functioning properly and gives an inaccurate signal which the computer faithfully reproduces, Section 69 does not affect the admissibility of the statement. The same is true if the operator keys in the wrong name. Neither of these errors is concerned with the proper operation or functioning of the computer. The purpose of Section 69, therefore, is a relatively modest one. It does not require the prosecution to show that the statement is likely to be true. Whether it is likely to be true or not is a question of weight for the justices or jury. All that Section 69 requires as a condition of the admissibility of a computer-generated statement is positive evidence that the computer has properly processed, stored and reproduced whatever information it received. It is concerned with the way in which the computer has dealt with the information to generate the statement which is being tendered as evidence of a fact which it states. The language of Section 69(1) recognises that a computer may be malfunctioning in a way which is not relevant to the purpose of the exclusionary rule. It cannot therefore be argued that any malfunction is sufficient to cast doubt upon the capacity of the computer to process information correctly. The legislature clearly refused to accept so extreme a proposition. What, then, was contemplated as the distinction between a relevant and an irrelevant malfunction? It seems to me that there is only one possible answer to that question. A malfunction is relevant if it affects the way in which the computer processes, stores or retrieves the information used to generate the statement tendered in evidence. Other malfunctions do not matter. It follows that the words "not such as to affect the production of the document or the accuracy of its contents" must be read subject to the overall qualification that the paragraph is referring to those aspects of the document or its contents which are material to the accuracy of the statement tendered in evidence.
286. The Law Commission in England reviewed the law relating to computer generated evidence. It summed up the major problem posed for the rules of evidence by computer output in the words of Steyn, J.:-
Often the only record of the transaction, which nobody can be expected to remember, will be in the memory of a computer.... if computer output cannot relatively readily be used as evidence in criminal case, much crime (and notably offences involving dishonesty) would in practice be immune from prosecution. On the other hand, computers are not infallible. They do occasionally malfunction. Software systems often have "bugs". --- Realistically, therefore, computers must be regarded as imperfect devices.
287. It noted that given the extensive use of computers, computer evidence could not be unnecessarily imp leaded, while giving due weight to the fallibility of computers. The Law Commission noted that Section 69 had enacted a law which was unsatisfactory for 5 reasons:-
First, Section 69 fails to address the major causes of inaccuracy in computer evidence. As Professor Tapper has pointed out, "most computer error is either immediately detectable or results from error in the data entered into the machine".
Secondly, advances in computer technology make it increasingly difficult to comply with Section 69: it is becoming "increasingly impractical to examine (and therefore certify) all the intricacies of computer operation". These problems existed even before networking became common.
A third problem lies in the difficulties confronting the recipient of a computer-produced document who wishes to tender it in evidence: the recipient may be in no position to satisfy the court about the operation of the computer. It may well be that the recipient's opponent is better placed to do this.
Fourthly, it is illogical that Section 69 applies where the document is tendered in evidence, but not where it is used by an expert in arriving at his or her conclusions, nor where a witness uses it to refresh his or her memory. If it is safe to admit evidence which relies on and incorporates the output from the computer, it is hard to see why that output should not itself be admissible; and conversely, if it is not safe to admit the output, it can hardly be safe for a witness to rely on it.
288. The Commission recommended deletion of Section 69, the opinion was: "Where a party sought to rely on the presumption, it would not need to lead evidence that the computer was working properly on the occasion in question unless there was evidence that it may not have been-in which case the party would have to prove that it was (beyond reasonable doubt in the case of the prosecution, and on the balance of probabilities in the case of the defense), The principal has been applied o such devices as speedometers and traffic lights, and in the consultation paper we saw no reason why it should not apply to computers.
289. We may note that Section 69 of the Police and Criminal Evidence Act, 1984 has since been repealed and the common law presumption:-"in the absence of evidence to the contrary the courts will presume that mechanical instruments were in order at the material time", operates with full force.
290. Experience has shown to us that development in computer networking, access, control, monitoring and systems security are increasingly making it difficult for computer errors to go undetected. Most computer errors are immediately detected or resultant error in the date is immediately recorded. In a court of law it would be impractical to examine the intricacies of computer functioning and operations. To put it in the words of the Law Commission report in England:-
Determined defense lawyers can and do cross-examine the prosecution's computer expert at great length. The complexity of modern systems makes it relatively easy to establish a reasonable doubt in a juror's mind as to whether the computer was operating properly. Bearing in mind the very technical nature of computers, the chances of this happening with greater frequency in future are fairly high. We are concerned about smoke-screens being raised by cross-examination which focuses in general terms on the fallibility of computers rather than the reliability of the particular evidence. The absence of a presumption that the computer is working means that it is relatively easy to raise a smoke-screen.
291. The law as it stands enacted in India does not have a provision analogous to Section 69 of the Police and Criminal Evidence Act, 1984 in England. The conditions which require to be satisfied are the ones set out in Sub-section (2) of Section 65B. The conditions, as noted above are:-
a) The computer from which the record is generated was regularly used to store or process information in respect of activity regularly carried on by a person having lawful control over the period, and relates to the period over which the computer was regularly used;
b) Information was fed in the computer in the ordinary course of the activities of the person having lawful control over the computer;
c) The computer was operating properly, and if not, was not such as to affect the electronic record or its accuracy;
d) Information reproduced is such is fed into the computer in the ordinary course of activity.
292. In effect, substantially, Section 65B of the Indian Evidence Act and Section 69 of the Act in England have same effect. 293. Thus, in the context of Section 65B(2)(c) the condition that throughout the material part of the period to which the computer operations related, the computer was operating properly has to be complied with. However, this compliance would be on the principle laid down in Shepherd (supra) and as applied in Ana Marcolino (supra) and Me. Kewon (supra). Thus in our opinion, is the only practical way to deal with computer generated evidence unless the response is by way of a challenge to the accuracy of computer evidence on the ground of misuse of system or operating failure or interpolation. Such challenge has to be established by the challenger. Generic and theoretical doubts by way of smoke screen have to be ignored.
105. Accordingly, in view of discussion and analysis made hereinabove, the appeal is allowed. Judgment dated 31.3.2008 passed by the Additional Sessions Judge, Shimla in Sessions Trial No. 8-R/7 of 2006 is set aside. Accused is acquitted of the charges framed against him. Fine amount, if already, deposited be released to the accused.
106. The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned in conformity with this judgment forthwith, if not required in any other case.



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