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Himachal Pradesh High Court · body

2003 DIGILAW 241 (HP)

Khimi Ram v. State Of Himachal Pradesh

2003-08-19

ARUN KUMAR GOEL, M.R.VERMA

body2003
JUDGMENT : M.R. Verma, J. – 1. This appeal has been preferred by the appellant/accused (hereinafter referred to as 'the accused') against the judgment dated 14.9.2001 passed by the learned Sessions Judge, Kullu whereby the accused has been convicted under Section 302 Indian Penal Code and has been sentenced to life imprisonment and fine of Rs. 5000/- and in default of payment of fine suffer imprisonment for three months. 2. Case of the prosecution against the accused in brief is that Leela Devi daughter of Manjogi (PW-12) was married to the accused about four years before her death on 17.8.2000. After 3/4 months of the marriage their relations became strained and the accused started quarrelling with her and also beating her after consuming liquor. Qua such ill-treatment of the deceased, PW-12 filed a complaint with the concerned Panchayat. on 18.8.2000 one Mohar Singh requested Om Chand (PW-1) to inform PW-12 about the death of Leela Devi. PW-1 accordingly sent to telephonic message to Gurdiyal (PW-4) a neighbor of PW-12 who conveyed the message to him. In turn PW-12 telephonically informed his brother Ain Dass (PW-8), Who was working at Kullu to report the occurring of death of deceased to the police. Accordingly, PW-8 reported the death of the deceased at Police Station, Kullu vide Rapt Roznamcha Wxt. PW-15/D. Pursuant to the information, so recorded, S.H.O. Roshan Lal (PW-15) accompanied by Ain Dass and few other police officials went to the place of occurred in village Bharain. PW-12 also reached there. The dead body of the deceased was lying in her matrimonial house and was covered with a Pattu (local blanket). The dead body was examined and a Dupatta was found wrapped round her neck through it had not knot and some swelling on the right side of the neck and check of the deceased was noticed. The accused informed that Leela Devi died due to hanging from plum tree near their house. He pointed out the branch of plum tree from which, according to him, the deceased had hanged herself. This branch was found 7'-2 " high from the ground. Chhachi i.e. small wild mushroom growth was found on the said branch of the plum tree. The accused informed that Leela Devi died due to hanging from plum tree near their house. He pointed out the branch of plum tree from which, according to him, the deceased had hanged herself. This branch was found 7'-2 " high from the ground. Chhachi i.e. small wild mushroom growth was found on the said branch of the plum tree. However, it was noticed that Chhachi growth on the said branch was not displaced/disturbed nor any rubbing mark was found on the branch which ruled out the possibility of the death of the deceased having been caused because of hanging. PW-15 recorded statement Ext.PW12/A of Manjogi under Section 154 Criminal Procedure Code Inquest report Ext.PW-12/A was accordingly prepare by PW-15. On the basis of Ext.PW-12/A F.I.R. Ext.PW-7/A was registered by S.I. Om Chand in Police Station, Kullu Photographs Ext.p-2 to p-8 were taken, negatives whereof are Ext.P-9 to P-15. Dead body of the deceased was sent for post-mortem examination to District Hospital, Kullu. Doctors Baldev (PW-16) and Shamsher Singh conducted the post-mortem examination and preserved the viscera and prepared the post-mortem report Ext.PW-16/A. However, because of inability to give the opinion about the cause of death, the dead body and the post-mortem report were sent for opinion of a Forensic Expert. The dead body and the report were then examined by Dr.Jeevan Nand Chauhan (PW-17) of Zonal Hospital, Mandi, who opined that the deceased, had died due to throttling. During investigation, the police took in possession application Ext.PW-5/B submitted by PW-12 to the Gram Panchayat alongwith the statements of the deceased, PW-12 and the accused recorded by the Panchayat vide Memo Ext.PW-5/A.One Drati (Ext.P-1) with Which Radha Devi (Pw-10) cut the Dupatta, Which was allegedly used for hanging, was also taken in possession vide Memo Wxt. PW-8/A. The Viscera of the deceased preserved at the time of her medical examination was sent for chemical analysis and on chemical analysis poison/alcohol were not detected therein vide report Ext.PW-15/c. 3. On completion of investigation and submission of the charge-sheet by the police, the learned session Judge, Kullu framed a charge against the accused under Section under Section 302 Indian Penal Code to Which the accused pleaded not guilty. To prove the charge against the accused, prosecution examined 17 witnesses. Statement of the accused under Section 313 Criminal Procedure Code was recorded wherein he denied the prosecution case and claimed to be innocent. To prove the charge against the accused, prosecution examined 17 witnesses. Statement of the accused under Section 313 Criminal Procedure Code was recorded wherein he denied the prosecution case and claimed to be innocent. However, he did not lead any defence evidence. 4. On consideration of the material on record, the learned Sessions Judge convicted and sentenced the accused, as aforesaid, hence, this appeal. 5. We have heard the learned Counsel for the accused and the learned Additional Advocate General for the respondent/State and have also gone through the records. 6. It was contended by the learned Counsel for the accused and that this case is entirely based on circumstantial evidence and such evidence is incapable of connecting that accused with the commission of the offence in view of the fact that there is not even an iota of evidence to prove any motive on the part of the accused to kill his young wife with whom he had entered into love marriage and there is no positive medical evidence or any other evidence to rule out the possibility of the deceased having committed suicide by hanging her from the plum tree.It was further contended that despite Ain Dass having reported the matter to the police, such report was not treated as F.I.R. by the police but instead the Investigating Officer proceeded to the spot, inspected the spot and waited for the arrival of the deceased and only thereafter recorded his statement under Section 154 Criminal Procedure Code and the time gap evidently and sufficient for consultations and deliberations. It was also contended that in fact PW-12 had a grudge against the accused and the deceased because they had married without his consent and in the complaint lodged by him in the Panchayat even the deceased had stated that thereafter she would never visit the house of her father which discloses her attitude of not keeping any relation with PW-12 who had lodged a complaint against her husband. It was, therefore, urged by the learned Counsel for the accused that seizing the opportunity of unfortunate suicide committed by the deceased, PW-12 had attempted to settle scores with the accused by falsely roping him in the commission of offence of murder. Therefore, according to learned Counsel for the accused, the impugned convocation and sentence are liable to be set aside and accused deserves to be acquitted. 7. Therefore, according to learned Counsel for the accused, the impugned convocation and sentence are liable to be set aside and accused deserves to be acquitted. 7. On the other hand, the learned Additional Advocate General while supporting the impugned judgment contended that the charge against the accused is fully proved in view of the material one record and the false explanation given by the accused that the deceased committed suicide by hanging and otherwise maintaining silence as to under what circumstances the deceased who was admittedly living with him died. The learned Additional Sessions Judge has, therefore, urged that the impugned conviction and sentence do not call for any interference. 8. In view of the above contentions raised for the accused, the first and the foremost question, which requires consideration in this appeal, is whether the report lodged by Ain Dass (PW-8) Ext.PW-15/d should have been treated as the F.I.R. 9. The expression 'First Information Report has neither been defined nor referrer to as such in the Criminal Procedure Code (hereinafter referred to as Code'). However, for all intents and purposes the expression 'First Information Report' means the information relating to the commission f a cognizable offence given to a police officer and reduced into writing by him or under his direction under Section 154 of the Code. Thus, it is one of the essential ingredients of the information so given to be treated as First Information Report is that it must disclose commission of a cognizable offence. Thus, a message disclosing commission of a cognizable offence sent by telephone to the police officer and recorded by him in writing will be First Information Report. However, if such a message is cryptic and on the face of it can not be treated as First Information Report within the meaning of Section 154 of the Code. 10. In the case in hand, the information given by PW-8 and recorded in the form of a report in the Daily Dairy (Ext.PW-15/D) is that his niece Leela Devi resident of village Bharain had expired on the preceding night and the circumstances leading to her death may be enquired. Evidently, this report does not contain any allegation which could be treated as commission of a cognizable offence. It is a simple message about the death of the deceased died. Evidently, this report does not contain any allegation which could be treated as commission of a cognizable offence. It is a simple message about the death of the deceased died. It is statement of PW-12 Ext.PW-12/A which discloses that the deceased had been throttled to death by the accused and thus is the information regarding commission of a cognizable offence and has rightly been treated as F.I.R. Therefore, contention to the contrary, as raised for the accused, is not sustainable. 11. The next question in this regard, which arises for determination is whether the F.I.R. Ext.PW-7/A based on the statement Ext.PW-12/A of PW-12 is delayed and is the outcome of consultations and deliberations as urged for the accused. As per the contents of Ext.PW-12/A (formal F.I.R. Ext.PW-7/A) PW-12 came to know about the death of the deceased on 18.8.2000. at 5:30 a.m. When he was informed by Gurdial Singh (PW-4) on receipt of telephone message from Om Chand (PW-1). On receipt of this information PW-12 telephonically informed PW-8 at Kullu to report the matter to the police and accordingly PW-8 made report Ext.PW-15/B to the police on 18.8/.2000 at 6:30 a.m. Police thereafter proceeded to the spot to the ascertain the facts leading to the death of the deceased. The statement Ext.PW-12/A was recorded by PW-15 after Pw-12 reached on the spot. It is evident from the statement of PW-15 that after the police party had reached on the spot the preliminary inquiry in the matter was conducted by them and when PW-12 reached on the spot his statement Ext.Pw-12/A was recorded at 3 p.m. Since the initial version about the cause of death of the deceased was suicide by hanging, the police was verifying the facts to arrive at a conclusion whether it was a case of suicidal or homicidal death. Everything was happening in the presence of the accused and the witnesses and there is no suggestion that there were any deliberations or consultations with a view to falsely implicate the accused in the commission of the crime before recording statement of PW-12. When PW-12 reached on the spot, saw the dead body of the deceased and thereafter made the statement regarding murder of his daughter by the accused by throttling. When PW-12 reached on the spot, saw the dead body of the deceased and thereafter made the statement regarding murder of his daughter by the accused by throttling. All the aforesaid factual aspect are duly and fully proved in view of the statements Pw-12, PW-15, PW-4 and PW-12 has specifically started that after he had reached on the spot there was blood in the nostrils and marks on the neck of the deceased as if she was strangulated by pressing her throat and he accordingly informed the police. Thus, he has stated the facts which he had noticed after arrival on the spot and on his statement Ext.PW-12/A F.I.R. Ext.PW-7/A was recorded. Therefore, the contention that the deliberations and concoctions is devoid of any merit and substance. 12. There is no dispute that the deceased died of unnatural death. The dispute, however, is as to whether the death of the deceased was suicidal or homicidal. According to the prosecution, the death of the deceased was homicidal whereas according to the defence, it was suicidal. 13. The Investigating officer (PW-15) has stated that as per the version given by the accused to him at the initial stage and as reflected in the inquest report Ext.PW-2/A was that the deceased hanged herself from a Plum tree. He took the police Plum tree and pointed out the lower branch thereof from which the deceased allegedly hanged herself. Be it started that when the accused started about the cause of death of the deceased and pointed the branch of the tree, as aforesaid, he was not even suspected of the commission of any offence. It was only a stage of verification of facts in the absence of any allegation against the accused. This version has nowhere been disputed in the cross-examination of the material witnesses. From the trends of cross-examination it appears to be the consistent case of the accused that the deceased being fed up with the behaviour of her father (PW-12) committed suicide by hanging herself from the tree. In his statement under Section 313 Criminal Procedure Code, he has, however, denied everything whatever was put to him and has not stated anything about the circumstances leading to the death of the deceased. 14. In his statement under Section 313 Criminal Procedure Code, he has, however, denied everything whatever was put to him and has not stated anything about the circumstances leading to the death of the deceased. 14. The Investigating Officer (PW-15), however, suspected that the deceased was murdered by throttling and proceeded with the investigation accordingly and finally found it to be case of murder having been committed by the accused for which the accused was tried, convicted and sentenced by the trial Court. 15. IN the facts and circumstances of the case, as they emerge from the records, the version that Leela Devi committed suicide by hanging is proved to be concocted and false and on the contrary it is fully and firmly established that the deceased was done to death by throttling. Vide contents of inquest report Ext.PW-2/A, at the time of examination of the dead of the deceased by PW-15 some white froth on the left side of the nose and swelling on the right side of the neck and the cheek of deceased were noticed and the death seemed to be caused by strangulation whereas according to the accused the deceased committed suicide by hanging her with the Dupatta from the branch of the Plum tree. However, no signs of hanging were noticed on the branch and the Dupatta. 16. At the time of post-mortem of the dead body of the deceased PW-16, one of the doctors, who conducted the post-mortem Ext.PW-16/A,stated in the Court about the condition of the body of the deceased as follows:- "Rigor mortise in lower leg is in disappearing stage. Green bluish patch of 5*3 inch right side of bank and right chest mid axillary line. Post mortem staining is on back more on right side of the bank and right arm and right breast. Right hand is cyanosis. Left hand was pale and both the hands were open (fingers in resting position). Eyes closed, conjective a congested and pupils dialated. Blood present in both the nostrils. Mouth was full of regurgitated undigested food, due to which the tongue was held inside the base of the mouth and was not swollen and was pale in colour. Neck was having brownish coloured brownish of about 3 cm cm in size over front of the neck extending from 0.5 cm from left side of the neck at the level of thyroid cartilage. Neck was having brownish coloured brownish of about 3 cm cm in size over front of the neck extending from 0.5 cm from left side of the neck at the level of thyroid cartilage. One brown coloured bruise over the middle of left clavicle of about 1 cm long. After dissecting both these bruise of the neck there was substaneous congestion. Thyroid and Hyoid cartilages were normal. Small quantity of faecal matter was present evaluated through anus. Greenish coloured patches seen over the both iliac fossa. On dissection of the scalp, skull and vertebrae there was slight congestion of the membranes of the brain and spinal cord. Otherwise both organs were normal. In the thorax upper portion of the chest skin was more congested than lower part and in subcutaneous tissue, in upper part of the chest, there was again wide congestion, lower part of the chest was pale. Pleurae of both lungs was normal, Laryax and trachea cavity was full of regurgitated food. Mucosa was normal. Both the lungs were normal. Pericardium was pale and normal and both chambers of heart were empty and large vessels were also empty. In the abdomen, walls and peritoneum were normal. Mouth, Pharynx and oesophagus was full of reurgitated undigested food. Stomach was containing undigested food mixed with secretations. Mucosa was pale and normal. In small intestine there was minimal secretions present and contained gases. Mucosa was pale and normal. Large intestine contained secretions and was full of gases. Liver, spleen and kidneys were normal. Blader was empty. Organs of generation external and internal both were normal. Muscles bones and joint were normal." 17. PW-16 and Dr. Shamsher Singh, Who Conducted the postmortem, however, could not opine about the cause of death of the deceased and referred he dead body alongwith the post-mortem report for Forensic Expert's opinion. The dead body and post-mortem report were thus taken to Zonal Hospital, Mandi where after examination thereof PW-17 found that injuries mentioned by Kullu doctors in post-mortem report Ext.PW-16/A were correct and formed the provisional opinion that there was possibility by throttling and reserved the final opinion till receipt of the report of the chemical analysis regarding viscera of the deceased. After receipt of the report of the chemical analysis Ext.PW-15/C he gave the final opinion Ext.PW-17/A that the deceased died due to throttling. After receipt of the report of the chemical analysis Ext.PW-15/C he gave the final opinion Ext.PW-17/A that the deceased died due to throttling. This opinion is based on the data collected at the time of the post mortem of the dead body, as already set out hereinabove, which is evidently suggestive of throttling and not of hanging. 18. There are other facts which also lend full corroboration to the opinion Ext.PW-17/A. Bina Devi (PW-9), Radha Devi (PW-10) and Budh Ram (PW-11) though have stated that they saw the dead body of the deceased hanging with a Dupatta from the tree, however, their statement are totally belied by the factual position on the spot which is neither disputed by these witness nor by the accused. PW-15 has stated that while inspecting the branch of the Plum tree from which the deceased was stated that to be hanging it was found that the said branch was at a height of 7 and 2 " from the ground. Chhachi (wild mushroom had grown on the branch. When the branch. When the branch was closely inspected after climbing up it was noticed that the branch did not have any rubbing mark nor chhachis growing on the branch were displaced. Branch was strong enough. It is not in dispute that even with a slight pressure Chhachi will get crushed and displaced. Even PW-10 Radha Devi has admitted that Chhachi generally grows on apple and Plum trees and in the event of touching the branch Chhachi Would fall. She has admitted that she has been Chhachi" on the Plum dry tree". It is not even her case that because of rubbing marks by the dupatta as it would have caused in the event of deceased hanging with dupatta tied to the branch, either Chhachi had been rubbing on the concerned tree branch. In such as situation, it is absolutely unbelievable that the deceased committed suicide by hanging herself with the help of dupatta from the branch of Plum tree or that her dead body was found hanging from the branch of the Plum tree or that her dead body was found hanging from the said tree as it stated by PW-10 and PW-11. 19. 19. It is not disputed before us that eight of the deceased was 5 as mentioned in the inquest report Ext.PW-2/A and the post-mortem report Ext.PW-16/B. at the time of inspecting of spot PW-15 appears to have not found any supporting object under the branch. However, PW-10 had stated that when she sow the dead body of the deceased hanging from the tree, the toes of the deceased were touching stone kept of wooden log. This is a Situation in which a person cannot commit suicide by hanging himself or herself. 20. According to the witnesses supporting the theory of suicide the deceased hanged herself with a Dupatta and to remove the body of the deceased from its hanging position said Dupatta was cut by PW-10 with a sickle she had brought from the house of the accused.It is not the case of even these witnesses that knots tying the Dupatta with the branch and around the neck of the deceased were untied by them. Their version si that Dupatta cut into two pieces wrapped around the neck of the deceased was brought alongwith dead body to the house and remained as such around the neck of the deceased. This Dupatta now in two pieces Ext.P-16 and Ext.P-17 had not Knot at all. In this regard, even the accused had not suggested to PW-10 and PW-11 that these two pieces of Dupatta were not of the Dupatta with which the deceased was allegedly hanging or it had the knots. Through such a suggestion has been put to PW-15 even at the time of medical examination of dead body of the deceased these two pieces of Dupatta were taken to the Doctor alongwith the dead body. Thus, the condition of Dupatta, in which it was found, is suggestive of the fact that it was not used for hanging. 21. It was also be pointed out that when dead body of the deceased was noticed inside the house the strings of her Salwaar was found broken. Had the dead body been hanging from the tree as the aforesaid witnesses have tried to show some explanation as to under what circumstances and at what stage the strings of the Salwaar of the deceased were broken in the ordinary course of human conduct it would not have been left as it is but somebody would have tied it up. 22. 22. There are reasons for pw-9 to Pw-11 to support the initial version of the accused that the deceased committed suicide by hanging herself with Dupatta. PW-9 at the relevant time was aged about 13 years and the accused is admittedly her brother-in-law. She has resiled from her initial version as recorded in her statement under Section 161 Criminal Procedure Code Which she did evidently to favour the accused and made a false statement about hanging of the deceased from the tree. PW-10 Radha Devi has admitted that the accused is her nephew. When she turned hostile and was being cross-examined it was suggested to her that she was making a false statement because accused is her nephew. While denying such as suggestion she volunteered that "Leela Devi was also my daughter". It is not in dispute that the deceased Leela Devi was not her daughter. While explaining as to how the deceased was her daughter she has to state that "Nathu Ram is father of Leela Devi deceased but she was from his another wife. Said Nathu Ram is my real brother-in-law and that way Leela Devi was my daughter." This explanation by her is false as the deceased was not daughter of any Nathu Ram allegedly the real brother-in-Law of PW-10 who herself admits that father of Leela Devi is Manjogi. This self stated version of PW-10 is not only false but is indicative of her intention to show that "regarding death of her daughter Leela Devi" she could not make a false statement. The falsity of this is exposed by herself. PW-11 is also a co-villager of the accused and his statement is proved false in view of the circumstances discussed hereinabove. 23. In view of the above discussion, the only and only conclusion which can be arrived at is that the version of the deceased having committed suicide as propounded by the accused and his co-villagers and relations PW-9 to PW-11 is a cooked up version and the deceased died of throttling as is the medical opinion given by PW-17 vide Ext.PW-17/A. 24. The next question which now arises is as to who throttled the deceased to death. There is no dispute that the deceased and the accused were residing together. The next question which now arises is as to who throttled the deceased to death. There is no dispute that the deceased and the accused were residing together. It is not the case of the accused either suggested to the witnesses or stated in his statement under Section 313 Criminal Procedure Code that on the relevant day he was not present in his house. His presence on the spot is admitted even by PW-10. It is further stated by her that the accused used to reside with Leela and a child aged about one and a half years old. On the day of occurrence the child was taken to the hospital by the mother of the accused. It means the on the relevant day only the accused and the deceased were present in their house. It is nobody's case that any third person was in their house at the time when the deceased was throttled to death. In such a situation, it is for the accused to explain as to under what circumstances the homicidal death of deceased occurred. His explanation that the deceased committed suicide by hanging as was initially given by them has been found false and is a circumstance against him. 25. The accused has kept utter silence as to the circumstances which led to the death of his wife. In his statement under Section 313 Criminal Procedure Code he has denied as incorrect even those facts which are admitted by PW-9 to PW-11 who have through and through tried to help him by concealing the truth. He has even denied that the deceased hanged herself from the Plum tree. When he was called upon the explain the incriminating circumstances he simply said that he is innocent. 26. The immunity given to the accused from being prosecuted if he refuses to answer the questions or gives false answers to the question put to him under Section 313 Criminal Procedure Code, by necessary implications gives him a right either not to answer the question or to answer them falsely. However, the answer given by him can be taken into account to examine as to how far he has explained the incriminating evidence against him. However, the answer given by him can be taken into account to examine as to how far he has explained the incriminating evidence against him. In the event of the accused keeping silence even about such facts and circumstances which must be within his knowledge and which he must explain or if he puts up a false defence the Court may draw such inferences as it may think fit to draw keeping in view the facts and circumstances of the case. 27. In the case in hand, in view of the proved circumstances that the deceased died of throttling, that at the relevant time none expect the accused and the deceased was present in their house and the accused has given false information that the deceased hanged herself from the tree, the irresistible conclusion is that it is the accused who caused the death of his wife by throttling her. 28. We are not unmindful of the fact that while holding a person guilty of commission of an offence courts have to be very cautious and the convocation should not be recorded unless the circumstances from which the conclusion is drawn are fully proved, are of conclusive nature and consistent only with the hypothesis of the guilt of the accused and inconsistent with his innocence excluding the possibility of innocence of the accused. In case the aforesaid conditions are satisfied a conviction can be reasonably based on such circumstances. In the case in hand, the above circumstance, namely, the accused initially falsely attributing the death of his wife to her having committed suicide by having and his failure to explain the circumstances under which she died of throttling when she was in the house with him, the irresistible conclusion will be that the wife was done to death by the accused. 29. The Prosecution to prove motive led evidence that the accused used to beat the deceased. It is in statement of Budh Ram (PW-2), Krishna Devi (PW-3), Jogi Ram (PW-5), Ram Singh (PW-6), Aan Dass (PW-8),Manjogi (PW-12) and Guddi Devi (PW-13) that the accused used to beat the deceased under the influence of liquor and once the matter was complained to the Panchayat by PW-12. As per their version the matter was amicably settled. It is in statement of Budh Ram (PW-2), Krishna Devi (PW-3), Jogi Ram (PW-5), Ram Singh (PW-6), Aan Dass (PW-8),Manjogi (PW-12) and Guddi Devi (PW-13) that the accused used to beat the deceased under the influence of liquor and once the matter was complained to the Panchayat by PW-12. As per their version the matter was amicably settled. However, the correctness of the allegations in the complaint that the accused used to beat the deceased is belied by the statement Ext.PW-5/c of Leela Devi herself wherein she had stated before the Pancahayat that the accused had not quarreled with her and henceforth she would not go to the house of her father. There is nothing on the record to hold that this way not voluntary statement made by the deceased. Therefore, the alleged motive for the accused to cause death of the deceased is not established beyond reasonable doubts. In so far as the motive is concerned, it may have some importance in the cases of circumstances evidence. However, want to proof of motive always is not the deciding factor as it can be a result of momentary impulse which is incapable of being proved by direct evidence. However, in view of the above of the accused to explain the circumstance under which the deceased was throttled by herself, are sufficient to hold the accused guilty of the commission of murder of his wife Leela Devi and he has rightly been convicted and sentenced by the learned trial judge. 30. In view of the above discussion, we do not find any merit and substance in the present appeal which is accordingly dismissed.