High Court of Punjab and HaryanaCRA-D/238/2004allowed

Gopal v. State Of Hy.

2025-07-17Mr. Justice Gurvinder Singh Gill,Mr. Justice Jasjit Singh Bedi16 pages

!"# $%

& '& ( )* $+ !$%$,%-.%* '& '& (

/ 0 &

1 2 1 00 / 0 &

1 1

! """""

1 1 3

# ! $%!&

'( ')(**((+ # ,%!

-. & # ! (*(/'//0

% 1

& #

$%!&

'( ')(**((+

! $%!&

(2(3*((+ &

& % & *4 ! -.

3 5

% ('(/'//0

& #% & $% 6 66 &7 .

89& ! :%

& $% #

& & $% # . 78 (*(/'//0.

89&

. 7 &

! &% ! % % & % !)((( 1&

5 7 &7 ! % &%

#% 3+2& *1* '

*7 6$% %

% !# & &&7 5$$

% #1 & 5 #

!thaila 7 )((( 1 7 ! &

# ; % ! & &

& %

1& #

! # & & ! thaila & 1 raula#% & & #%

& % 1

& & 6$$% &

&7 ! &&

& &

& .

75 # & %& ! ! #% *2 3( 1

& &

# 7 ! & #1 & 1 ! .& &

<=> * &

&7 # &-.<=> %

3/+.6 !

<=?

& 75$$&7 % ! %&# #1 & &<=< &

8 (3(/'//0 & !

#% 6 $& !.

7 %

:% !<= # ! %

1& & # & ! <= & @@ 8 (3(/'//0 <=-

% &! 7%

1& &&% $% A!% & $%B %

% % %

C 3(*.6 +

! 7 %#5% ! .

8 *+'*'//4

% 7

-.>+)* %

3/4 +('.6 #% &&

! 1

% % &

<=55 *((( 1 & +((( 1 5 7#7# 7 #

% % & ! .

% 7

& Nishandehi

& & <=66 &

7 %#.5 ! (/(3'///

& ! & ; .

& # & A; .

B 5 !

! & % &

<= ''(3'///

% !

! & % &

<=#% &&

% 7 7

1#7# ! 6 % !

& 7

! ! % Kikkar near 9&% 5 !

& & Nishandehi

& &<=C

& ! #7<= & &<= 3'2# <=' ! ! <=* & &<=D '

& .5 ! %! <=@@ <=<< %!7

<=D &

! #

% #7

% #

# % 8

&7 2 5

% ! 1 %

3/+ 3(*.6 !% &

% ! 1 C *2 2+ 2/ &

!% & ) .

% =& $ ! ;1' <=

E6 6 7;1* % %&& 6>+0'4 ('(/'//0 6 @ ! ;13 &

#% ! 6 1

6 !

7 <=5 ' <=5 @F

;1+& =& 6 F <=6 F @

! ;12

8 <=@ & 5$ #% @ ;1)

@@ 8 ;10 %

& & #6 <=- 6 #

# !;14

<=, @%6

!;1/

)((( 1 ! #7>)

6 # !>2'* )

)*/24paisa #7 9&.

;1'(

! #& .@&#;1''

6 # $# !;1'*

<=9 % !6;1'3 <=G ' <=G#% 3'2# <=1'

# ! 7 ! % # &#.5& # !.;1'+ .

8& 7 ;1'2

<D .

5% !;1') #%

! # & $& !.;1'0 %

:% !

#6 ! % ## & ! <= & %&.;1'4 #%

% 7

& &<=66

.5 !;1'/ #%

! #& %

-F<=<< <=<< ';&>!

% !# #

% ;@ ! &$ ! C6,5! .& ! 6,5!

. !

! 6 # @@ ! @7 6& & 6%

& ,.6

0 &

% %

3'3 66 %

# &

4 ; # ;1) &5$ 6%

,%!

% 17 ! F7&

1 $%!&

'( ')(**((+% 1 ++%-

,%#!

1-*4$% 1%*%-

4% % #+),5* $+ 6)7.%* $+ +4% 3/+.6 .'( 2 ((( .()&

3(*.6 F .& &

2 ((( .()&

*2 2+ 2/

.(3 * ((( 1 .(3&

/ &

$%!&

'( ')(**((+ # ,%!

% ! # 6% '( @% !

% 1

& % # 6% (0(2*((+ '' %

% 1

&5$1;

)! # # && # 1

%! #

# !

& %

7 & 5 & #7&

% % # ! !

) ((( 1 % % # % % % #7 % % # #

! "

#$% !

% &

% # %

3*2# &7

-F %#

! # & & & 7

% :%

1# ! & !

& &%!

$%!&

# #

'* %

#7&

% !

) ((( 1 #

% %

% # &

# & '3 ; % '+

# %&

= %&

H# % & 6%

( )

*' "

+ ,-. $% !

/ % 1 "152. 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, (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.

153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence. " A &% B .

0 1

(

* 2

+$% !

= %&

H# % & 6% % 1 "46. Although there can be no straight jacket formula for appreciation of circumstantial evidence, yet to convict an accused on the basis of circumstantial evidence, the Court must follow certain tests which are broadly as follows:

1. Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;

2. Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused and must be conclusive in nature;

3. The circumstances, if taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be inconsistent with his innocence. In other words, the

circumstances should exclude every possible hypothesis except the one to be proved."

47. There cannot be any dispute to the fact that the case on hand is one of the circumstantial evidence as there was no eye witness of the occurrence. It is settled principle of law that an accused can be punished if he is found guilty even in cases of circumstantial evidence provided, the prosecution is able to prove beyond reasonable doubt the complete chain of events and circumstances which definitely points towards the involvement and guilty of the suspect or accused, as the case may be. The accused will not be entitled to acquittal merely because there is no eye witness in the case. It is also equally true that an accused can be convicted on the basis of circumstantial evidence subject to satisfaction of the expected principles in that regard."

A<&% B .

$%!&

(

- &+ H# % & 6%

= %&

% 1

11. Thereafter, the above principles have been reiterated in the subsequent judgments of this Court and hold the field till date. Thus, these basic established principles can be summarized in the following terms that the chain of events needs to be so established that the court has no option but to come to one and only one conclusion i.e. the guilt of the accused person. If an iota of doubt creeps in at any stage in the sequence of events, the benefit thereof should flow to the accused. Mere suspicion alone, irrespective of the fact that it is very strong, cannot be a substitute for a proof. The

chain of circumstances must be so complete that they lead to only one conclusion that is the guilt of the accused. Even in the case of a conviction where in an appeal the chain of evidence is found to be not complete or the courts could reach to any another hypothesis other than the guilt of the accused, the accused person must be given the benefit of doubt which obviously would lead to his acquittal. Meaning thereby, when there is a missing link, a finding of guilt cannot be recorded. In other words, the onus on the prosecution is to produce such evidence which conclusively establishes the truth and the only truth with regard to guilt of an accused for the charges framed against him or her, and such evidence should establish a chain of events so complete as to not leave any reasonable ground for the conclusion consistent with the innocence of accused. H# % & 6% $6

7 7 * 8

5 +/.

% 1 "12. Thus, from the aforesaid discussion, it would be clear that out of the five circumstances, the prosecution has failed to prove the recovery of bloodstained balwa and tangi upon the disclosure statement of accused Rajesh Yadav @ Raju Gowala by credible evidence. The circumstance that the appellant came to his village from Punjab four to five days before the date of the alleged occurrence and was seen by PW18 in village Simdega cannot be said to be an unnatural conduct on the part of the appellant, as such the same cannot be taken as a circumstance against him. Recovery of one torch cell and knife from the pocket of appellant after the date of alleged occurrence cannot be used as a circumstance against him, especially when neither there is any

case nor evidence that the knife recovered was stained with blood. The other circumstances which remain are motive and letter written by the appellant giving false information to his brother that he was dead. These two circumstances raise strong suspicion against the appellant, but it is well settled that suspicion howsoever strong it may be cannot take the place of proof. In any view of the matter, on the basis of these circumstances, it is not possible to draw an irresistible conclusion which is incompatible with innocence of the appellant so as to complete the chain. It is well settled that in a case of circumstantial evidence, the chain of circumstances must be complete and in case there is any missing link therein, the same cannot form the basis of conviction. For the foregoing reasons, we are of the opinion that prosecution has failed to prove its case beyond reasonable doubt against all the accused persons, much less the appellant."

A<&% B '2 6& !# 7

! #7 &

% 1

& #

7 ('(/'//0 %

''(3'///.

:% % 7

% &

& % #7

% .

! #7 #

% & ') .

&+ H# % & 6% % 1

15. In our considered view, in the present case the prosecution has not been able to prove its case beyond reasonable doubt. The evidence of last seen, only leads upto a point and no further. It fails to link it further to make a complete chain. All we have here is the evidence of last seen, which as we have seen looses much of its weight under the circumstances of the case, due to the long duration of time between last seen and the possible time of death. What we can call as discovery here under Section 27 of the Act, is the discovery of `Parna' and watch of the deceased. This evidence in itself is not sufficient to fix guilt on the appellant.

In a case where there is no direct eye witness to the crime, the prosecution has to build its case on the circumstantial evidence. It is a very heavy burden cast on the prosecution. The chain of circumstances collected by the prosecution must complete the chain, which should point to only one conclusion which is that it is the accused who had committed the crime, and none else. Each evidence which completes the chain of evidences must stand on firm grounds. In our considered opinion, the evidence placed by the prosecution in this case does not pass muster the standard required in a case of circumstantial evidence. '0 .

! "

#$% !

&+ H# % & 6%

% 1

119. Learned counsel for the appellant submits that appellant's sister was in the same society and she has not been examined. That the disclosure statement lacked material details like the description of articles or the place where they were allegedly kept; that the theory that the appellant retain the ID card of her

college for over 2 months was unnatural since according to prosecution he went as far as Nasik to get rid of the trolley bag. According to the learned counsel, PW 5 was an unreliable witness who had acted as a Panch witness before and knew PW 38. That none of the items were linked to the appellant, argues learned counsel.

120. We are not able to sustain the conviction based on this recovery for the same reason as we are not impressed by the mere purported recovery of the trolley bag from PW 24. The prosecution has not answered the infirmities pointed out by the learned counsel for the appellant. As to why the college identity card of the deceased EA would be preserved by the accused and kept in custody of the sister nearly two months after the incident, is something we find very intriguing.

121. All these facts cumulatively constrain us to conclude that there are gaping holes in the prosecution story leading to the irresistible conclusion that there is something more than what meets the eye in this case. While the old adage, witness may lie but not the circumstances, may be correct, however, the circumstances adduced, as held by this Court, should be fully established. There is a legal distinction between 'may be proved' and 'must be or should be proved' as held by this Court. The circumstances relied upon when stitched together do not lead to the sole hypothesis of the guilt of the accused and we do not find that the chain is so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused.

'4 !

3'2

1& &

& :%

% 7

-F %# <=<< %

1& ! 7* '%

&7 ;

' & & ! 6% &

& ! -F

% 7

# % '/ % &

% = % !

# &

&%!

$%!&

'( ')(**((+ # ,%!

% 1

& :%

! & !

& *( !

1 1

2 1 00

'& '& ( %7

; 7 !

9 > ; # 9 >