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Himachal Pradesh High Court · body

2001 DIGILAW 228 (HP)

BIR BAHADUR v. STATE OF H. P.

2001-09-07

M.R.VERMA, R.L.KHURANA

body2001
JUDGMENT M.R. Verma, J: - The accused/appellants (hereafter referred to as the accused persons) have been convicted by the learned Sessions Judge, . Shimla for the commission of offences punishable under Sections 302,392 read ] with Section 34 of the Indian Penal Code and each one of them has been sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 1,000/- and in default of payment of fine to undergo rigorous imprisonment for a further period of two years under Sections 302/34 of the Indian Penal Code and to undergo rigorous imprisonment for seven years and to pay fine of Rs.500/- and in default of payment of fine to undergo further rigorous imprisonment for a period of one year under Sections 392/34 of the Indian Penal Code. 2. Being aggrieved, the accused persons have preferred the present jail appeal and Mr. Sanjeev Kuthiala was appointed as legal aid counsel for them on their request. 3. The case against the accused persons, in brief is as follows. .Lobi Devi (since deceased) was a resident of village khalwa in Tehsil Kotkhai. She had two sons, namely, Krishan Lal and Prem Chand (PW-1). Since the children of Krishan Lal and PW-1 are respectively studying in Chandigarh and Shimla, therefore, their wives were living along with their respective children. Said Krishan Lal and PW-1 also used to visit their families at Chandigarh and Shimla. Ratni Devi, sister of father of PW-1 and Krishan Lal, also used to reside in their house in village Khalwa. Said Ratni Devi at the material time was aged about 100 years and was hard of hearing and could not see and thus used to remain confined to bed. Krishan Lal and PW-1 had employed three Gorkhas, namely, Bir Bahadur (other than the accused) (PW-3), Jit Bahadur and Prem Bahadur who used to work for them on their land and in their orchard as and when their services were required and were paid for the work done by them on daily wage basis. They used to reside in a Dhara in the orchard at a distance of about 200 meters from the house of PW-1 and Krishan Lal. Thus, the aforesaid Gorkhas were not their permanent employees. They had, however, employed accused Bir Bahadur as a domestic help and he used to reside in a room in the ground floor of their house. They used to reside in a Dhara in the orchard at a distance of about 200 meters from the house of PW-1 and Krishan Lal. Thus, the aforesaid Gorkhas were not their permanent employees. They had, however, employed accused Bir Bahadur as a domestic help and he used to reside in a room in the ground floor of their house. Initially he was employed in October 1998. In December 1998 he went to Nepal and returned in February 1999 and restarted rendering domestic help to Krishan Lal and PW-1. When Bir Bahadur returned from Nepal in February 1999, he brought accused Nar Bahadur with him from Nepal. Nar Bahadur used to work as laborer for other villagers and occasionally for Krishan Lal and PW-1 also. He used to take his meals with Bir Bahadur (PW-3), Jit Bahadur and Prem Bahadur but in the night he used to sleep with accused Bir Bahadur in the house of Krishan Lal and PW-1. On 27.4.1999 PW-1 came to Shimla to stay with his wife and children for a few days. On 3.5.1999 Krishan Lal also left for Chandigarh. Thus, Lobi Devi and Ratni Devi remained in the village. In the evening they were joined by another woman also named Lobi Devi (since deceased). She was daughter of a brother of the father of PW-1 and Krishan Lal. Thus, on the night intervening 3rd/4th of May, 1999 the said three ladies were in the house. Accused Bir Bahadur was also there on account of his being a domestic servant and accused Nar Bahadur also was there to spend the night as usual. On the morning of 4.5.1999 Bir Bahadur (PW- 3) went to the house of Krishan Lal and PW-1 to bring buttermilk and shouted "Mata Ji Mata Ji" as he used to address Lobi Devi mother of Krishan Lal and PW-1 but there was no response. He went to the tap installed in the court-yard of the house where he washed his face, hands and feet and then went to the room in the ground floor where the two accused used to sleep. However, the accused were not found present there. Thereafter PW-3 wet to the upper floor of the house and again shouted "Mata Ji Mata Ji". However, the accused were not found present there. Thereafter PW-3 wet to the upper floor of the house and again shouted "Mata Ji Mata Ji". When there was still no response he went inside the Verandah of the house and pushed the door of the kitchen room and through the opening, he saw a foot of Lobi Devi mother of Krishan Lal and PW-1. He thought that she might be sick, therefore, he went to the house of Sudhir Kumar (PW-2) a cousin of Krishan Lal and PW-1 and informed him of what he had seen. PW-2 then accompanied PW-3 to the house of Krishan Lal and PW-1 and both of them went inside the house and found the dead bodies of Lobi Devi, the mother, and Lobi Devi a cousin of Krishan Lal and PW-1. The necks of the dead bodies were found tied with pieces of cloth, i.e. Dupattas, Chunis, girdles and headgear. PW-2 then called Kanwar Singh (PW-4) brother of Lobi Devi, the cousin of Krishan Lal and PW-1. PW-4 telephonically called the police to the spot. PW-1 was also telephonically informed of the occurrence and he rushed to his village after telephonically informing his brother Krishan Lal at Chandigarh. On receipt of telephonic call from PW-4, ASI Sharif Mohmmad (PW-12) along with some other police officials proceeded to the spot. When he reached on the spot, statement of PW-2 under Section 154 of the Code of Criminal Procedure Ext. PE was recorded on the basis whereof formal Fir Ext. PJ was recorded at Police Station Kotkhai under Section 302 read with Section 34 of the Indian Penal Code. The inquest reports Ext .PB, Ext. PB/1, Ext. PH and Ext.PH/1 were prepared and the post mortem examination of the dead bodies was got conducted by calling Dr. Raj Kamal Chauhan (PW-9) to the spot. The post mortem reports prepared and issued by PW-9 are Ext. PM and Ext. PN. As per the opinion given by him, the cause of death in both the cases was strangulation. In the meanwhile PW-1 and Krishan Lal also reached the village. On checking they found that a number of golden and silver ornaments besides a gold coin and some silver coins and some other valuable items and currency notes were missing from one of the almirahs kept in a room of their house the lock whereof was found broken. In the meanwhile PW-1 and Krishan Lal also reached the village. On checking they found that a number of golden and silver ornaments besides a gold coin and some silver coins and some other valuable items and currency notes were missing from one of the almirahs kept in a room of their house the lock whereof was found broken. The locks of a jfew other rooms were also found broken. The details of the property found missing were given by PW-1 and Krishan Lal to the police who were present on the spot in connection with the investigation of the case. Since the accused persons were found missing, therefore, five search parties, each consisting of police officials and local persons in a position to identify the accused, were sent out in search of the accused persons in different directions. One of such party, headed by ASI Balwant Singh (PW- i 1) and of which PW-3 was a member, was sent in the direction of Tiuni where they rached at about 10.00 a.m. on 5.5.1999 and started looking out for the accused at the bus stand and in the bazar. At about 5.00 p.m. a bus which came from Rohru side reached Tiuni and PW-3 spotted the accused persons alighting from that bus and accordingly informed PW-11. After alighting from the bus the accused persons proceeded towards Haridwar bound bus which was parked nearby. They were, however, over-powered and apprehend by the police officials before they could board the bus. The accused persons were found in possession of one cloth bag each. They were taken to a nearby hotel where the bags they were carrying, were searched in the presence of PW-3 and one Pvakesh sharrna. The bag which accused Bir Bahadur was carrying contained Chak, neckless with locket, Mangalsutra, three rings, a pair of ear-rings, a pair of ear tops, golden coin, three pairs of silver Kangans a pair of anklets, a broken brace-let (Kada) and a shawl. These ornaments were taken in possession by the police vide memo. Ext. PF. From the bag which accused Nar Bahadur was carrying, a camera, currency notes worth Rs.4Q4/-20 silver coins of Rs. 1 each and a shawl and a Sweater were recovered which were taken in possession vide recovery memo. Ext. PG. These ornaments were taken in possession by the police vide memo. Ext. PF. From the bag which accused Nar Bahadur was carrying, a camera, currency notes worth Rs.4Q4/-20 silver coins of Rs. 1 each and a shawl and a Sweater were recovered which were taken in possession vide recovery memo. Ext. PG. A test identification parade of the aforesaid recovered articles was conducted by the Executive Magistrate, Kotkhai after about a month of the recovery. PW-1, Krishan Lal and one goldsmith identified the ornaments and other articles belonging to the two brothers in the course of .the test identification parade. During the course of investigation the photographs Exts. PA/1 to PA/10 were taken on the spot. Blood-stained wood pieces found on the floor near one of the dead bodies were taken in possession vide memo. Ext. P.C. One hammer and broken locks found on the spot were taken in possession vide memo. Ext. PD. On completion of the investigation and on being satisfied of the commission of offences by the accused, the officer-in-charge. Police Station, Kotkhai submitted a charge-sheet against the accused persons who came to be tried by the learned Sessions Judge, Shimla on a charge under Sections 449,302 and 392 read with Seciton 34 of the Indian Penal Code. 4. To prove the charge against the accused the prosecution examined 12 witnesses. Accused were examined under Section 313 of the Code of Criminal Procedure wherein they denied the prosecution case against them and claimed that at the material-time they were not residing in the concerned village. The learned Sessions Judge convicted and sentenced the accused persons as aforesaid. 5. We have heard the learned counsel for the accused persons and the learned Deputy Advocate General for the State and have also gone through the records. 6. It may be pointd that the case of the prosecution against the accused persons is based entirely on cicumstantial evidence and the accused persons have been convicted by the learned Sessions Judge on the basis of the following circumstances: a) The accused used to reside in the house of Lobi Devi as Bir Bahadur was employed as domestic help and Nar Bahadur used to live with him and they were there in the house on the night when the crime was committed; b) The accused dis;-appeared from the house before the daybreak stealthily; c) Ornaments, gold and silver coins, a camera etc. found stolen from the house of deceased Lobi Devi, were recovered from the two accused at the time when they were overpowered and apprehended at Tiuni bus stand; d) The accused have taken a false plea of alibi and this is an additional circumstances pointing to their guilt. 7. Before proceeding to examine the evidenciary value and effect of the aforesaid circumstances, it will be expedient to refer to the law relating to the appreciation of circumstantial evidence. 8. By now, it is well-settled that in a case resting entirely on circumstantial evidence, the circumstances relied by the prosecution must be cogently and firmly established and must be consistent only with the .hypothesis of the guilt of the accused. Further, such circumstances should be of conclusive nature and tendency and must be such as to exclude every hypothesis except the one sought to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and must be such as to show that within all human probabilities the act constituting the offence must have been done by the accused. It has also to be kept in view that suspicion, howsoever strong, cannot take place of proof and if two views are possible on the evidence adduced in the case, the one pointing to the guilt of the accused and another to his innocence, the view favourable to the accused must be taken. This principle has special relevance to the case where the charge against the accused is sought to be proved by circumstantial evidence. In case the Court entertains reasonable doubt about the accused being guilty, the benefit of doubt must be given to him. It may appear from the evidence that the accused "may" be guilty but the prosecution has to travel long distance between showing "may be guilty" and proving "must be guilty" to bring home the charge to the accused because moral conviction and emotional considerations cannot take the place of proof. See: Akhilesh Hajam v. State of Bihar 1995 Supp. (3) SCC 357; Balwinder Singh v. State of Punjab 1995 Supp (4) SCC 259; Suresh Kumar v. State ofH.P. 2000 (2) Shim. L.C. 275; Vyas Dev alias Bittu v. State ofH.P. 1999 (2) S.L.J. 1730; and Rajesh Sharma & Anr. See: Akhilesh Hajam v. State of Bihar 1995 Supp. (3) SCC 357; Balwinder Singh v. State of Punjab 1995 Supp (4) SCC 259; Suresh Kumar v. State ofH.P. 2000 (2) Shim. L.C. 275; Vyas Dev alias Bittu v. State ofH.P. 1999 (2) S.L.J. 1730; and Rajesh Sharma & Anr. v. State of Hi mac ha I Pradesh 2000 Cri. L.J. 1869. 9. Keeping in view the above settled position in law, we now proceed to consider and examine the aforesaid circumstantial evidence in the case. 10. Circumstance No. 1 It was contended by the learned counsel for the accused that this circumstance is not proved for want of cogent and reliable evidence and could not be taken into account to convict the accused persons. 11. PW-I is one of the two brothers who had employed accused Bir Bahadur as their domestic servant. He has specifically stated that accused Bir Bahadur, being their domestic servant, used to reside in the ground floor of their house. He has further testified that accused Nar Bahadur used to take his meals with PW-3 and his companion Gorkhas residing in the Dera in the orchard, but used to sleep with accused Bir Bahadur in the room provided to accused Bir Bahadur. He has denied the suggestion that after going to Nepal in the month of December 1998 accused Nar Bahadur did not return to the village. On the contrary he has stated that accused Nar Bahadur returned to the village in February 1999 and was re-employed as domestic servant and when he returned from Nepal, he had brought accused Nar Bahadur with him. The statement of PW-1 is fully corroborated by PW-2, PW-3 and PW-5. PW-2, who has identified the accused persons as the two Gorkhas residing in the room of the house of PW-1 and Krishan Lal, has further stated that these two Gorkhas were absent when he visited the place of occurrence. This statement has not been disputed by way of cross-examination. PW-3, who himself is a Gorkha, has stated that accused Nar Bahadur used to take his meals in the Dera and used to sleep with accused Bir Bahadur in the house of Krishan lal. This statement has not been disputed by way of cross-examination. PW-3, who himself is a Gorkha, has stated that accused Nar Bahadur used to take his meals in the Dera and used to sleep with accused Bir Bahadur in the house of Krishan lal. He has specifically stated that on 20th day of Baisakh 1999 after the days work was over, he along with Jit Bahadur and Prem Bahadur left for the Dera and accused Nar Bahadur went to the house where accused Bir Bahadur used to live and did not come to take his meals to the Dera. He has further stated that Nar Bahadur some- times used to take meals with Bir Bahadur. He has denied the suggestion that the accused persons never worked for Krishan Lal nor resided in his house. Puran Chand (PW-5) has stated that on 3.5.1999 he had seen the deceased and the accused persons at the house of Krishan Lal. He has further stated that accused persons were earlier known to him. He has not also denied the suggestion that both the accused never worked in the concerned area nor did they ever reside in the house of Krishan Lal. These witnesses are not shown to have any motive to falsely implicate the accused persons nor there anything on the record which may render their statements unnatral, suspicious or unreliable. Therefore, in view of the statements of PW-1, PW-2, PW-3 and PW-5, it is proved that the accused persons used to sleep for the night in a room of the house of PW-1 and Krishan lal and on 3.5.1999 the deceased and the accused persons were present in the house. The learned Sessions Judge has, therefore, rightly concluded that this circumstance was proved conclusively. 12. Circumstance No.2 As already held hereinabove, the accused persons were residing in a room of the house of Krishan Lal and they were present there on 3.5.1999. PW-5 hadseen them and the deceased present in the said house at about 7.30 p.m. on 3.5.1999. It is nobodys case that the accused persons left the house after 7.30 p.m. According to PW-2 and PW-3, the accused persons were found abset from the house on the following morning. It is not the case of the accused that on 4.5.1999 they were present in the house. It is nobodys case that the accused persons left the house after 7.30 p.m. According to PW-2 and PW-3, the accused persons were found abset from the house on the following morning. It is not the case of the accused that on 4.5.1999 they were present in the house. Thus, the only conclusion which can be arrived at is that the accused persons disappeared from the house of Krishan Lal before the day break on 4.3.1999. Therefore, the learned Sessions Judge has rightly held this circumstance as proved. 13. Circumstance No.3 According to the prosecution, the accused persons were apprehended by a police search party headed by PW-11 at Tiuni on the evening of 5.5.1999 when the accused persons, after alighting from a bus which came from Rohru side, were proceeding towards a Haridwar bound bus and were identified by PW-3. At that time accused Bir Bahdur was carrying bag Ext. P-3 and accused Nar Bahadur was carrying bag Ext. P-20. On search of bag Ext. P-3 by PW-11 in the presence of PW-3 and one Rakesh Sharma, gold ornaments, i.e. Chak Ext. P-6, Necklace Ext. P-7, Mangalsutra Ext. P-8, three finger rings Exts. P-9 to P-11, a pair of ear tops Ext. P-12, a pair of ear rings Ext.P-13 and a gold coin Ext. P-14 and silver ornaments, i.e. Kangans Exts. P-15, P-16, P-17, P-17/A and P-19 and a pair of anklets (Pajeb) Ext. P-18 wrapped in handkerchief Ext. P-5 were found and recover memo. Ext. PF was prepared. On search of bag Ext. P-20 which accused Nar Bahadur was carrying, a sweater Ext. P-21, shawl Ext. P-22, camera Ext. P-23 and a bundle made of handkerchief Ext. P-24 containing currency notes worth Rs.404/-Ext. P-25 and silver coins Ext. P-25 were recovered and memo. Ext. PG in this regard was prepared. This recovery is fully supported by PW-3 and PW-11 both of whom have categorically stated about these recoveries having been effected from the respective bags carried by the accused persons. 14. Subsequently, test identification parade of the aforesaid ornaments was conducted in the presence of PW-10. However, this test identification parade was not carried out in accordance with the procedure and was conducted without mixing similar articles with the articles to be identified, therefore, it could not be nor has been relied upon by the learned Sessions Judge. 14. Subsequently, test identification parade of the aforesaid ornaments was conducted in the presence of PW-10. However, this test identification parade was not carried out in accordance with the procedure and was conducted without mixing similar articles with the articles to be identified, therefore, it could not be nor has been relied upon by the learned Sessions Judge. However, these ornaments/articles have been identified by PW-1 Prem Chand as belonging to him and his brother Krishan Lal in the Court who has further staled that these were the articles which were found missing from their house immediately after the occurrence. The accused persons have not claimed these ornaments/articles as belonging to them nor there effective cross-examination of the relevant witnesses. It is, thus, established in view of the statements of PW- 1 PW-3 and PW-11 that the aforesaid articles were recovered from the possession of the accused persons. 15. It was contended by the learned counsel for the accused persons that according to the prosecution, the accused were arrested on 5.5.1999 at Tiuni whereas Hitender Singh, MHC (PW-6) has stated that ASI Balwant Singh (PW-11) had brought two accused persons to him on the night of 4.5.1.999 and they were lodged in the police lock up. Thus, according to the learned counsel for the accused persons, if the accused were lodged in the lock up on 4.5.1999, there is no question of any recovery having been effected from them on 5.5.1999. 16. It appears that PW-6 has made the statement in a slip shod manner and without verifying the facts from the records and had given a wrong date of confinement of the accused persons in the police lock up. It is evident from the statement of PW-11 who effected the arrest, and PW-3 that the accused were arrested on 5.5.1999 at Tiuni. Even the accused persons have not denied their arrest at Tiuni on 5.5.1999. Therefore, the statement made by PW-6 that the accused persons had been lodged in the lock up on 4.5.1999 is of no help to them. 17. As per the statement of PW-2 who had come to the place of occurrence in the morning of 4.5.J999 and had noticed the dead bodies lying in the house, he found that all the doors were found opened and house- hold articles were strewned. So is stated by PW-3 and PW-4. 17. As per the statement of PW-2 who had come to the place of occurrence in the morning of 4.5.J999 and had noticed the dead bodies lying in the house, he found that all the doors were found opened and house- hold articles were strewned. So is stated by PW-3 and PW-4. PW-1 who reached on the spot around 12.00 noon on 4.5.1999 has stated that the household articles were lying scattered. Locks of the room were lying broken. The almirah kept in the room was found opened and its key which used to be kept in a wooden rack inside the room to facilitate use thereof by either of the brothers in the absence of other was in the key-hole. On checking after arrival of Krishan lal, the aforesaid ornaments were found missing. The recovered ornaments had been identified as the missing ornaments by PW-1. These statements find corroboration from the site plan Ext. PQ, recovery of broken locks Ext. P-28 to P-32 and hammer Ext. P-27 vide memo. Ext. PD and the photographs Exts. PA/1, PA/4, PA/7 and PA/8. The genuineness and correctness of these recoveries and the photographs has not been disputed in the cross-examination of the concerned witnesses. It is thus established beyond any reasonable doubt that the aforesaid ornaments were removed from the house of PW-1 and his brother Krishan Lal by breaking open the locks on the night intervening 3rd/4th of May, 1999 and were recovered from the possession of the accused persons on 5.5.1999. 18. Circumstance No A. The accused persons have set up the plea that at the relevant time they were not present in the concerned village. In view of the findings recorded on circumstances No. (1) and (2) above, their plea has been found false. Though the prosecution cannot take benefit of the weakness of the defence and has to stand on its own legs, yet the false plea taken in defence can be taken into account as an additional circumstance against the accused. 19. It was contended by the learned counsel for the accused that on the relevant night one Ratni Devi was admittedly present in the house but she has not been produced and examined by the prosecution. It was further contended that in view of the adverse inference which can be drawn from non-production of Ratni Devi coupled with the fact that the PWs. It was further contended that in view of the adverse inference which can be drawn from non-production of Ratni Devi coupled with the fact that the PWs. are related and interested witnesses, the conviction of the accused persons on the circumstantial evidence is not sustianable. To substantiate his contention that statements of interested witnesses should not be relied upon to convict the accused in the facts and circumstances of the case, the learned counsel has relied on Satyanarain v. State of Madhya Pradesh, AIR 1972 SC 1309 and Shard Birdhichand Sarda v. State of Maharashtra, AJR 1984 SC 1622. The ratio of the former case is that it is not safe to base conviction of an accused on the evidence of partisan eye witnesses unless their statements are corroborated by other evidence and/or material. The ratio of the latter case is that close relatives of victim have tendency to exaggerate or add facts, therefore, Court must examine their evidence with great care and caution. 20. There is no dispute about the law laid in the above cases. However, the propositions laid therein are of no help to the accused persons in the facts and circumstances of the case in hand. In so far as non- production of Ratni Devi is concerned, no adverse inference against the prosecution can be derived therefrom because there is unrebutted and unchallenged evidence on record that said Ratni Devi is about 100 years of age and cannot walk and hear. -Therefore, her production would not have been of any use and consequence. 21. PW-1, PW-2 and PW-5 are related to the victims. There is nothing unnatural or inconsistent in their statements. More Over, their evidence is corroborated by PW-3 on all material particulars. There is nothing on the record to show that PW-3 has any motive to falsely implicate the accused persons. Thus, there is no reason to disbelieve the reliabel and confidence inspiring statements of these witnesses. The contention of the learned counsel for the accused persons, therefore, cannot be sustained. 22. The aforesaid proved circumstances are of conclusive nature and form a complete chain to prove that the offences for which the accused persons have been charged were committed by them alone and none else. Therefore, the impugned, the impugned convictions and sentences do not call for any interference by us. 23. As a result this appeal is dismissed. 22. The aforesaid proved circumstances are of conclusive nature and form a complete chain to prove that the offences for which the accused persons have been charged were committed by them alone and none else. Therefore, the impugned, the impugned convictions and sentences do not call for any interference by us. 23. As a result this appeal is dismissed. Since the accused persons who are1 in jail undergoing the sentence, were represented by a legal-aid- counsel provided by the Court, therefore, a copy of this judgment be sent to the Superintendent of the concerned jail for information of the accused persons.