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2005 DIGILAW 172 (HP)

JAI SINGH v. STATE OF H. P.

2005-05-30

LOKESHWAR SINGH PANTA, SURJIT SINGH

body2005
JUDGMENT Surjit Singh, J.—The present appeal (from jail), has been filed against the judgment dated 30.12.2002 of learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, whereby the appellant had been convicted of the offences under Section 302 and 201 of the Indian Penal Code and sentenced as follows: (a) Simple imprisonment for life and fine of Rs. 20,000/- and in default of payment of fine simple imprisonment for a further period of one year, in respect of an offence under Section 302 of the Indian Penal Code; and (b) Simple imprisonment for three years and fine of Rs. 5,000/- and in default of payment of fine simple imprisonment for a further period of six month, in respect of offence under Section 201 of the Indian Penal Code. 2. Case of the prosecution, which has led to the conviction and the punishment of the appellant may be summed up thus. Appellant used to live in the Doghari of one Satya Devi in village Sudharang in Kinnaur District alongwith his wife Reema (deceased) and his minor son named Suraj, aged about 8/9 years (also deceased). It appears that the appellant used to suspect the fidelity of his wife. On 8.10.2001, around 6.30 in the morning, he went to the house of Satya Devi PW2 ( in whose Doghari he used to live in village Sudharang), at Kalpa, which is at a distance of 2 Kilometer from Sudharang and demanded some money from her. He told her that he had taken liquor and his wife and son had run away in the night. Satya Devi gave Rs. 100/- to the appellant and at the same time, she made a telephonic call to her nephew Raj Kumar (PW-1) who lived in village Sudharang, and asked him to find out where the wife and the son of the appellant had gone. Said Raj Kumar, on getting the aforesaid call, went to the Doghari where the appellant, his wife and son used to live and spotted stains of blood on the wooden floor. That made him apprehensive about the safety of the wife and the son of the appellant. He searched for them around the Doghari and saw their dead-bodies in a cave like hollow portion among the boulders at a distance of about 50 meters from the Doghari. That made him apprehensive about the safety of the wife and the son of the appellant. He searched for them around the Doghari and saw their dead-bodies in a cave like hollow portion among the boulders at a distance of about 50 meters from the Doghari. Raj Kumar then went to one Bhagwan Pal, who probably lived nearby, and told him about his having spotted the dead-bodies. Bhagwan Pal, in turn, made a telephonic call to the Police Station, Rekong Peo, at 8.10 a.m. On getting the telephonic information, ASI Pritam Singh (PW-8) of Police Station, Rekong Peo, went to the spot, where he recorded the statement of Raj Kumar (PW-1), under Section 154 of the Code of Criminal Procedure( Ext. PW1/A) and sent the same to the Police Station, for the formal registration of the case. Thereafter, he got the dead-bodies photographed and then managed to get the same retrieved from the aforesaid cave. Again some snaps of the dead-bodies were taken. The said Assistant Sub Inspector then conducted the inquest proceedings and sent the dead-bodies to the District Hospital at Kalpa, for post-mortem examination. Dr. Anand (PW-5) and one more Doctor conducted the autopsy of both the dead-bodies. Following injuries were noticed on the dead-bodies of the lady:— 1. A lacerated wound of 10 cm. x 4 cm. x bone depth over left parieto occipital region with fracture of underlying bones. 2. A lacerated wound of 5 cm. x 3 cm. x bone deep over left side of frontal region with fracture of underlying bone. 3. A lacerated wound of 4 cm. x 3 cm. x bone deep over right side of frontal region. 4. A lacerated wound of 6 cm. x 4 cm. x bone deep over the right side of parietal region with fracture of underlying bone. On opening the skull, following injuries were noticed:— 1. Fracture left parieto occipital bone with laceration of underlying dura and arachnoid membrane and haemotoma of 4 x 3 x 2 cm.size lying underneath. 2. Fracture of left side of frontal bone. 3. Fracture right side of parietal bone with laceration of underlying dura. 3. It was opined that the head injury was the cause of death and the death had taken place instantaneously with the infliction of the head injury. The probable time gap between the death and the post-mortem was opined to be within 24 hours. 3. Fracture right side of parietal bone with laceration of underlying dura. 3. It was opined that the head injury was the cause of death and the death had taken place instantaneously with the infliction of the head injury. The probable time gap between the death and the post-mortem was opined to be within 24 hours. On the dead-body of the male child, following injuries were noticed:— 1. Depressed fracture of frontal bone on left side with lacerated wound of 4 cm. x 3 cm. x bone deep Abrasion of 3 cm. x 2 cm. over the abdomen on left hypochondrium by blunt weapon. 2. Lacerated would of 2 cm. x 2 cm. x 2 cm. over left leg anteriorly with dried blood clots. 3. Ligature mark well defined, slightly depressed mark at the level of thyroid cartilage, placed transversely, completely encircling the neck, but more prominent over the anterior aspect of neck and knot present over midline anteriorly. Skin under the ligature was bruised and was pale parchment like and there was ecchymosed of subcutaneous tissue under the ligature mark. There was fracture of thyroid cartilage and tracheal rings. The larynx and trachea were congested and contained blood stained frothy mucous. 4. It was opined that the cause of death was asphyxia (due to strangulation of neck by ligature). Probable time lag between the infliction of the injury and the death was opined to be a few minutes and between the death and the post-mortem the time gap was opined to be within 24 hours. 5. On 14.10.2001, the appellant was taken into custody. On 16.10.2001, when still in police custody, the appellant made a disclosure statement that he had hidden the Danda of Rahiyunsh Wood in uncultivated land of Raj Kumar under a Niyoza tree, underneath of stones and only he was in the know of this fact. He also stated that he could get the same recovered. This statement was made by him, in the presence of two witnesses, namely Raj Kumar (PW-1) and Aggar Dass (PW-3). A memo of statement was prepared. Pursuant to the said statement, the appellant is alleged to have got recovered the Danda allegedly used by him to inflict fatal blow on the head of his wife. 6. The police also recovered a knife from the Doghari of the appellant on 8.10.2001, itself. A memo of statement was prepared. Pursuant to the said statement, the appellant is alleged to have got recovered the Danda allegedly used by him to inflict fatal blow on the head of his wife. 6. The police also recovered a knife from the Doghari of the appellant on 8.10.2001, itself. Knife is alleged to have been used by the appellant to cause an injury in the abdomen of his deceased son. The police also noticed blood stains on the wooden floor of the Doghari. Blood stained portions of the wooden planks, of which the floor of the Doghari was made, were chopped off and made up into parcels and the parcels were sealed. Some blood was also spotted in the cave where the dead-bodies were lying. That blood was collected and made up into parcels and those parcels were also sealed. Salwar of the deceased lady was also found lying on the spot. That was also taken into possession and made up into a parcel. That parcel was also sealed. The parcels containing the aforesaid blood stained pieces of wooden planks, separated from the floor of Doghari, the blood stained earth and salwar etc. were sent to the Chemical Examiner, who opined that some of the objects bore stains of human blood of Group-A. Sample blood of the deceased male child of the appellant was also taken from his dead-body and it was also found to be of Group-A. 7. On completion of the investigation, report was filed, under Section 173 of the Code of Criminal Procedure, in the Court of Chief Judicial Magistrate, Kinnaur, who after complying with the requirement of Section 207 of the Code of Criminal Procedure, committed the case to the Court of learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahar. The appellant was charged with the offences, under Sections 302 and 201 of the Indian Penal Code and on his pleading not guilty, he was ordered to be tried. On the conclusion of the trial, he was convicted and sentenced, as aforesaid. 8. Grievance of the appellant is that the evidence adduced by the prosecution does not connect him with the commission of the crime. The appellant filed the appeal from Jail. He prayed that he be given legal-aid counsel as he was not in a position to engage any counsel. 8. Grievance of the appellant is that the evidence adduced by the prosecution does not connect him with the commission of the crime. The appellant filed the appeal from Jail. He prayed that he be given legal-aid counsel as he was not in a position to engage any counsel. Shri Bimal Gupta, Advocate, was appointed as legal-aid counsel, under the provisions of H.P. State Legal Services Authority Regulations, 1996. 9. We have heard the learned counsel for the appellant (Shri Bimal Gupta) and learned Additional Advocate General (Shri Som Dutt Vasudeva) assisted by Shri D.S. Nainta, Deputy Advocate General. 10. The main thrust of the argument of the learned counsel for the appellant is that there is absolutely no evidence connecting the appellant with the crime and that whatever little evidence is there, that is contradictory, discrepant and vague. Learned Additional Advocate General urged that the plea of alibi raised by the appellant in the trial Court having failed, there was no escape from holding him (the appellant) guilty of the offences, he had been charged with. 11. The learned trial court has held that the circumstantial evidence in the present case makes a complete chain, which leads to no hypothesis than the one that the appellant is guilty of offence of murder, punishable under Section 302, Indian Penal Code. The learned trial court has observed that there was a motive for the commission of the crime, inasmuch as the appellant suspected fidelity of his wife. It has also been held that the appellant got recovered the weapons of the offence, i.e. Danda Ex. P 1 and knife Ex. P-3 which were found to bear stains of blood. Further the learned trial court has held that there were stains of blood on the floor of the house of the appellant, for which the appellant has offered no explanation and that the appellant made an extra-judicial confession, which stood proved beyond reasonable doubt. The last link in the chain of circumstantial evidence, according to the learned Sessions Judge is the failure of the plea of alibi taken by the appellant. 12. The last link in the chain of circumstantial evidence, according to the learned Sessions Judge is the failure of the plea of alibi taken by the appellant. 12. First we would like to determine, by referring to and appraising the evidence on record, whether the aforesaid circumstances stand established and if so, do they make a complete chain leading to one and the only one inference that it is the appellant who has committed the murders, as held by the trial court. 13. There is no evidence, worth the name, on record from which it may be inferred that the appellant suspected the fidelity of his deceased wife. The learned trial court has referred to the deposition of PW 3 Aggar Dass to jump to the conclusion that there was a motive for the commission of the crime. The witness stated in the examination-in-chief that the appellant used to lock her wife in the Doghari, whenever he went to work for gain. When cross-examined, with respect to this part of his testimony, the witness stated that only once he saw the appellant confining his wife but did not know the exact date, the time, the month and even the year of such confinement. Even if it be assumed that the appellant had once confined his wife in the Doghari, as testified by this witness in the cross-examination, though the testimony is not believable for want of exactitude because the witness does not know the- date, the time, the month or even the year of such confinement, that would not lead to an inference that the appellant suspected the fidelity of his wife. There could have been hundred and thousand reasons for such confinement. May be that the wife of the appellant was sick and unable to get up and bolt the door from inside when the appellant was leaving and so with a view to ensuring the safety of the households articles kept in the Doghari, the door was chained and locked from the outside. Therefore, the motive part of the prosecution story cannot be said to have been proved beyond reasonable doubt. 14. The next proved circumstance, according to the judgment of the learned trial court is the recovery of weapons of offence at the instance of the appellant and the presence of stains of blood on those weapons. Therefore, the motive part of the prosecution story cannot be said to have been proved beyond reasonable doubt. 14. The next proved circumstance, according to the judgment of the learned trial court is the recovery of weapons of offence at the instance of the appellant and the presence of stains of blood on those weapons. It may be stated at the very out-set that after having allegedly informed PW 2 Satya Devi on the morning of 8.10.2001 that her wife and son had run away during previous night, the appellant was not seen in that area. He was called from Karchham on 14.10.2001 and was then taken into custody, per deposition of PW 8 Pritam Singh, ASI. Knife was recovered from the house (Doghari) by the police during the course of the inspection of the house on 8.10.2001, per seizure memo Ex. PW 3/F and the testimony of PW 1 Raj Kumar and PW 3 Aggar Dass. Therefore, the finding of the learned trial court that the recovery was effected at the instance of the appellant is contrary to the evidence on record. This position apart, no injury was caused to any of the two deceased, by means of a sharp edged weapon like knife, per post-mortem reports Ex. PW 5/B pertaining to the dead-body of the wife of the appellant and Ex. PW 5/C pertaining to the dead-body of his son, as also the testimony of the doctor, namely PW 5 Dr. Anand. Under these circumstances, it is not understandable how the learned trial court has held that the knife is a weapon of offence and had been recovered at the instance of the appellant. 15. As regards the recovery of Danda, with which the deceased wife of the appellant was allegedly given a blow on her head which proved fatal, the evidence is self contradictory and hence not believable. PW 1 Raj Kumar and PW 3 Aggar Dass, neither of whom was cross-examined by the prosecution with the leave of the court, testified in not uncertain terms that the Danda was lying in an uncuttivated field of PW 1 Raj Kumar. PW 1 Raj Kumar and PW 3 Aggar Dass, neither of whom was cross-examined by the prosecution with the leave of the court, testified in not uncertain terms that the Danda was lying in an uncuttivated field of PW 1 Raj Kumar. No doubt the two witnesses stated that the appellant made a disclosure statement and then got recovered the Danda from the field, but their testimony regarding recovery of Danda from an open field is contrary to the memo of the alleged statement under Section 27 of the Indian Evidence Act, Ex. PW 1/B, and the seizure memo pertaining to Danda, Ex. PW 1/C, as also the testimony of PW 7 Sita Ram, Sub Inspector to whom the alleged disclosure statement was made. As per memo of the statement allegedly made by the appellant and the testimony of PW 7 Sita Ram, S.I., the appellant stated that he had kept hidden a Danda underneath stones under a Neoga tree in the barren land of Raj Kumar and could get the same recovered. Moreover PW 7 Sita Ram, S.I. says that the appellant had stated that he had kept hidden a Danda in the field of Raj Kumar, but in the memo, of statement Ex. PW 1/B it is recorded that the Danda had been kept hidden underneath stones. In any case the contents of Ex. PW 1/B, the memo regarding alleged disclosure statement of the appellant and the testimony of PW 7 Sita Ram are contradictory to the depositions of PW 1 Raj Kumar and PW 3 Aggar Dass, on which the prosecution very much relies. In view of this contradiction, the prosecution version that the appellant made a disclosure statement, leading to the discovery of Danda cannot be believed. Another reason for disbelieving this story of the prosecution is that the Danda was recovered from a barren piece of land six-seven days after the alleged commission of the crime. That barren land is not very far from the Doghari where the murder had allegedly been committed as also the cave where the dead-bodies had been hidden. The police had been visiting the Doghari, the cave and the surrounding area during this period of six-seven days and it is quite likely that they spotted the Danda during such visits. 16. That barren land is not very far from the Doghari where the murder had allegedly been committed as also the cave where the dead-bodies had been hidden. The police had been visiting the Doghari, the cave and the surrounding area during this period of six-seven days and it is quite likely that they spotted the Danda during such visits. 16. There is absolutely no evidence on record suggesting, even remotely, that the appellant made an extra-judicial confession to anybody No doubt it was alleged in the report, under Section 173 of the Code of Criminal Procedure, that the appellant had made an extra-judicial confession to PW 2 Satya Devi, but the latter, while in the witness box, did not testify this fact, despite having been cross-examined and having been given a specific suggestion in the course of such cross-examination by the learned Public Prosecutor that the appellant made a confession to her that he had murdered his wife and son. 17. Thus the finding by the learned trial court qua this circumstance is also bad, being contrary to the evidence on record. 18. The learned trial court has observed that the chain of circumstances is completed by the failure of the plea of alibi raised by the appellant. The circumstances, other than the failure of plea of alibi do not stand proved, from the evidence on record, as held hereinabove. Therefore, the circumstance becomes meaningless. We are of the considered view that the failure of plea of alibi assumes significance, only when the prosecution succeeds in establishing some circumstances suggesting that the offence, the accused is charged with, appears to be committed by him. And then the circumstance regarding failure of plea of alibi is used as the one lending assurance to the inference that it is the person facing trial, who alone is guilty of the charge. In this case, as already noticed hereinabove, the prosecution has not been able to establish, beyond reasonable doubt, any of the circumstances, which according to it connect the appellant with the crime. Therefore, the alleged failure of plea of alibi is hardly of any consequence. 19. The above stated position apart, this is not a case of failure of plea of alibi, but a case of non-proof of the plea of alibi specifically raised. Therefore, the alleged failure of plea of alibi is hardly of any consequence. 19. The above stated position apart, this is not a case of failure of plea of alibi, but a case of non-proof of the plea of alibi specifically raised. A plea can be said to have failed, when it is disproved, but when it is not proved on account of lack of evidence, it cannot be said that the plea stands disproved or it has failed. In such a situation the plea is said to have remained unproved. 20. Learned Additional Advocate General urged that the crime had been committed in the Doghari of the appellant where he was supposed to be present on the night of the alleged commission of the crime, and, therefore, there can be no escape from the finding that he was with the deceased when their murders took place. The argument has been stated only to be rejected. There is absolutely no evidence on record indicating that the appellant was present in the Doghari on the relevant night. PW 1 Raj Kumar in his cross-examination has very categorically stated that he had not seen the appellant for three-four days, prior to the date of incident. PW 2 Satya Devi says that she had seen the appellant last, three days prior to the occurrence, meaning thereby that even she does not say that the appellant was there in the area on the relevant night. PW 3 Aggar Dass says that he saw the appellant last, about ten-fifteen days prior to the incident. The prosecution did not examine any other witness to get it testified that the appellant was there in the Doghari on the relevant night. PW 1 Raj Kumar and PW 2 Satya Devi have very categorically stated that the appellant used to go to other villages to earn his livelihood. This part of their testimony fits in the plea of the appellant that he was not in the Doghari on the night of commission of the crime as he had gone to another village to work for gain. Under these circumstances, it cannot be said that the appellant was in fact with the deceased at or around the time of the commission of the crime. 21. There are several other loopholes and deficiencies in prosecution case. Under these circumstances, it cannot be said that the appellant was in fact with the deceased at or around the time of the commission of the crime. 21. There are several other loopholes and deficiencies in prosecution case. Bhagwan Pal, who made a telephonic call to the police on being informed by PW 1 about the presence of two dead-bodies in the cave, has not been examined and no explanation for withholding him has been put forward. The witness lives in the vicinity of the Doghari where the offence was committed. Police has also not examined Urgian in whose presence the appellant allegedly made disclosure statement leading to the recovery of Danda. The house of this witness is just twenty meters away from the Doghari where the offence is alleged to have been committed. Bhagwan Pal and Urgian, in our view, were the important witnesses, as they being occupants of the houses close to the Doghari, where the crime was allegedly committed, as also cave, where the dead-bodies were lying dumped, were supposed to have heard noise made during the course of quarrel which the appellant allegedly had with his deceased wife immediately before the commission of the crime, as also the cries of the two deceased, which they must have raised when being done to death in a violent manner. Their withholding thus renders the prosecution liable to an adverse inference. 22. PW 2 Satya Devi says that the appellant came to her house around 6.30 in the morning on 8.10.2001. The crime is alleged to have been committed on the night intervening 7.10.2001 and 8.10.2001. PW 2 Satya Devi does not say that the clothes of the appellant bore stains of blood or that he had changed his clothes and appeared to have taken bath. According to the prosecution version, the offence was committed in the Doghari and the dead-bodies were carried to a cave fifty meters away. Now if the appellant had committed the murders and dumped the dead-bodies in the cave, his wearing apparels were supposed to bear stains of blood, especially when it is not the case of the prosecution that the dead-bodies were dragged to the cave, because no dragging marks were spotted, and, therefore, the presumption is that the dead-bodies were carried to the cave by being physically lifted by the killer(s). 23. The conduct of the appellant is also relevant. 23. The conduct of the appellant is also relevant. Normally when Gorkhas from Nepal commit some serious crime particularly in our hilly State which adjoins Uttranchal, beyond which Nepal is situated, they escape to Nepal through mountainous tracks. In the present case, the appellant remained in Kinnaur District even after the commission of the alleged crime. He was present at Karchham to the knowledge of the police. He was called from there on 14.10.2001, per testimony of PW 7 Sita Ram, Sub Inspector. Now if the appellant was actually involved in the commission of the crime, first he would have run away to Nepal, his native country and even if, for any reason, he did not follow the course generally adopted by the Gorkhas from Nepal, he would have run away, at least on 14.10.2001, when the police called him to Reckong Peo Police Station. 24. Another circumstance which negates the involvement of the appellant in the commission of the crime is that both the dead-bodies were found naked in the lower part. Salwar of the deceased lady was found lying in the cave near the dead-body. The dead-body of the male child was also naked below waist. The nakedness of the dead-bodies, below waist, and the presence of the Salwar of the lady in the cave give rise to a very strong suspicion that probably some other person(s), sexually abused both the lady and the child and then murdered them. The appellant could not have done this because normally a man would not commit such a nefarious act against his own wife and in no case against his son. 25. In the light of the above discussion, we do not have any doubt in our mind that the judgment of the learned Sessions Judge convicting and sentencing the appellant for the offence of murder, under Section 302, Indian Penal Code, is unsustainable as the evidence on record does not prove the charge. Consequently the appeal is accepted. The impugned judgment dated 30.12.2002 of learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, is set-aside and the appellant is acquitted. He, being in jail, is ordered to be set at liberty forthwith in case his detention is not required in connection with some other case. 26. We place on record our appreciation to the valuable assistance rendered by Mr. Bimal Gupta, Advocate Amicus Curiae. Appeal allowed.