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2005 DIGILAW 35 (HP)

ANIL GOPAL v. STATE OF H. P.

2005-03-04

K.C.SOOD, LOKESHWAR SINGH PANTA

body2005
JUDGMENT Lokeshwar Singh Panta, J. - Appellant-Anil Gopal (hereinafter referred to as the accused) has challenged the judgment and order dated 26.5.2001 passed by learned Additional Sessions Judge-II, Kangra at Dharamshala in Sessions Trial No. 17/2001 convicting him under Section 302 of the Indian Penal Code for the murder of his wife Smt. Kirna Devi on 1.4.2000 at about 11.30 p.m. and sentencing him to imprisonment for life. 2. The facts of the case in so far as they are relevant for the disposal of this appeal may be succinctly stated: 3. According to the prosecution, the accused was married to deceased Smt. Kirna Devi in May, 1997. In March, 1999, a male child was born to them. The accused was working in private job in Bangalore which he left in November, 1999 and returned to his village Tikru, Tehsil Jaising Pur, District Kangra. Thereafter the accused was unemployed. On 29.3.2000 Mohan Lai (PW-2) and Guler Chand (PW-4) both uncles of the deceased had gone to her matrimonial home to celebrate the first birth day of her son. PW-2 is a retired Subedar Major of the Army whereas PW-4 was serving in the Army at the relevant time and was on leave during those days. The case of the prosecution was that on 1.4.2000 in the night at about 11.30. PW-4 went to the house of PW-2 and told him that he (PW-4) had received a telephonic message from the house of the accused that as Smt. Krishna Devi was ill, her relatives should immediately reach his house. On receiving the message, PWs 2, 4 their cousin, Kehar Singh and Smt. Sheela Devi (PW-8) mother of the deceased rushed to the house of the accused. On reaching there, they found some ladies and gents present. The dead body of Smt. Kirna Devi was lying on the floor of the room of the house of the accused and her mouth and eyes were oiled with Ghee. On inquiry being made by them from the persons who were present at the scene 6f the occurrence, they were told that Smt. Kirna Devi had died due to heart failure. The accused also told them that the cause of the death of the deceased was heart failure. PWs. On inquiry being made by them from the persons who were present at the scene 6f the occurrence, they were told that Smt. Kirna Devi had died due to heart failure. The accused also told them that the cause of the death of the deceased was heart failure. PWs. 2, 4 and 8 relying upon the version of the accused and other persons about the cause of death of the deceased, went back to their village. On return, they discussed the matter with other members of the family as they had found that when on 29.3.2000 PWs. 2 and 4 had gone to the house of the accused to celebrate the birth day of his son, the deceased was found hail and hearty. They suspected some foul play in the death of the deceased and decided to make report to the Police. PW-2 informed the police official of Police Station, Lambagaon the morning of 2.4.2000 at about 8 a.m. from the house of one Kanchan about unnatural death of the deceased. PWs. 2, 4 and 8 along with some more persons of their village again had gone to the house of the accused. On inspection of the dead body of the deceased, PW-2 noticed ligature marks on her throat. He telephonically informed PW3 Rashila Ram, President of the Gram Panchayat of the accused about the death of the deceased and requested the latter to reach at the house of the accused. PW-2 again inquired from the accused about the real cause of death of the deceased, who told him that during the intervening night of the occurrence, some quarrel took place between hirh and his wife, he caught her from throat and strangulated her. Further case of the prosecution was that Varinder Singh (PW-10) Asstt. Sub Inspector reached at the place of the occurrence, inspected the dead body of the deceased and took photographs (Exts. PW-2 to PW-8). He examined Daya Ram (PW-7) uncle of the accused who at that time was present at the house of the accused. PW-10 prepared inquest report (Ext. PW-1/B) and recorded the statement (Ext. PW-2/A) of PW-2 under Section 154 Cr.P.C. which was sent to the Police Station for registration of the case. The Investigating Officer prepared site plan (Ext. PW-10/A) and recorded the statements of the witnesses on the spot. Head Constable Surjeet Singh (PW-9) recorded F.I.R. (Ext. PW-10 prepared inquest report (Ext. PW-1/B) and recorded the statement (Ext. PW-2/A) of PW-2 under Section 154 Cr.P.C. which was sent to the Police Station for registration of the case. The Investigating Officer prepared site plan (Ext. PW-10/A) and recorded the statements of the witnesses on the spot. Head Constable Surjeet Singh (PW-9) recorded F.I.R. (Ext. PW-9/B) in the Police Station on the basis of Ext. PW-2/A. A team of the doctors, namely, Dr. Veena Sharma (PW-1) and Dr. S. Goja conducted the post mortem on the body of Smt. Kirna Devi in Sub Divisional Hospital, Palampur. On external appearance of the dead body of the deceased, the doctors found her lower lip swollen and congested and tongue was slightly protruded out. A linear abrasion mark measuring 10 cm approximately was present over anterior side of the neck of the deceased extending from right angle of mandible passing obliquely slightly downwards to the left side of the neck. Dark brownish parchment type grooved underlying contusion was also present over sub cutenous tissue. Thyroids cartilage was found broken on right side. 4. In medico legal report (Ext. PW-1/A) doctors have opined that the death of the deceased was due to asphyxia most likely because of antemortem trangulation. However, final opinion was reserved to be expressed after receipt of the report of the Chemical Examiner. PW-10 received the report of the Chemical Examiner (Ext. PW-1/D) which revealed that aluminum phosphate poison was found in the viscera of the deceased. PW-10 submitted an application (Ext. PW-10/C) to the Dr. S. Goja on 3.6.2000 to give the final opinion whether thyroid cartilage of the deceased could be broken by pulling Mangalsutra which was found around the neck of the deceased. Dr. S. Goja again opined in report (Ext. PW-10/C) that thyroid Catilage could be broken by pulling of Mangalsutra. Dr. Veena Sharma and Dr. S. Goja in their final opinion (Ext. PW-1/E) opined that the cause of death of the deceased was strangulation and poison. 5. On completion of the investigation, PW-10 submitted the case file to Station House Officer Pritam Singh for preparation of the challan. PW-10 laid the charge before the Court. The accused denied the charge. There upon, the prosecution examined ten witnesses in support of its case. The accused in his statement recorded under Section 313 Cr. 5. On completion of the investigation, PW-10 submitted the case file to Station House Officer Pritam Singh for preparation of the challan. PW-10 laid the charge before the Court. The accused denied the charge. There upon, the prosecution examined ten witnesses in support of its case. The accused in his statement recorded under Section 313 Cr. P.C. pleaded that he has been falsely implicated in the case as the material witnesses are relatives of the deceased. Further the accused pleaded alibi. He led no evidence in defence. 6. There is no eye-witness to support the case of the prosecution which rests purely on circumstantial evidence. The learned trial Court found the following circumstances which according to it conclusively proved the case of the prosecution: (1) the accused gave false statement to PWs. 2, 4, 7 and 8 that the deceased died of heat attack whereas she was strangulated by the accused; (2) the accused made extra-judicial confession to PWs, 2, 4, 5 > t and 8 that during the intervening night of the occurrence, he had quarreled with his wife and in that process he strangulated her; (3) the accused was last seen in the company of the deceased in their room by his sister Shushma Thakur (PVV-5) and uncle Daya Ram (PW-7) on the day of the occurrence; (4) the accused gave false explanation that the deceased committed suicide as she used to remain depressed because her male child was having a small hole in his heart and; (5) that the accused raised false plea of alibi. 7. On the basis of the material on record, the learned trial Court accepted the version of the prosecution witnesses as a correct reflection of what had happened and placing reliance on their evidence directed conviction and sentence as aforesaid. Hence this appeal. 8. In support of the appeal, learned Counsel for the accused submitted that the learned • trial Court has fallen into grave error by placing reliance on the evidence of the prosecution witnesses. The evidence on record does not establish that the death of the deceased was homicidal; the medical evidence was not clear about the cause of the death of the deceased. He next contended that extra-judicial confession allegedly made by the accused to PW-2 was an improvement in his deposition as he has not made such statement in (Ext. PW-2/A) (again Ext. He next contended that extra-judicial confession allegedly made by the accused to PW-2 was an improvement in his deposition as he has not made such statement in (Ext. PW-2/A) (again Ext. PW-9/C) recorded under Section ,154 Cr. P.C. therefore, no reliance could be placed on such extra-judicial confession. He next contended that the prosecution has failed to complete the link of the circumstantial evidence to hold the accused guilty of the offence and his conviction on such evidence cannot be sustained. 9. On the other hand, the learned Addl. Advocate General contended that there is no lawful reason to discredit and discard the truthful testimony of the prosecution witnesses who had no enmity with the accused and the oral evidence of PWs. 2, 4, 5, 6, 7 and 8 corroborated by the medical evidence is confidence inspiring and prove the charge against the accused beyond any reasonable doubt. 10. We have given our thoughtful consideration to the respective contentions of the learned Counsel for the parties and have reappraised and reanalyzed the entire evidence on record. We are of the view that the learned trial Court has properly analyzed and appreciated the entire evidence on record holding the accused to be guilty of the charge. / Circumstance No. 1 11. In support of the first circumstance, the prosecution has relied upon the evidence of PW-2. PW-3, PW-4, PW-5, PW-8 and PW-10 the Investigating Officer corroborated by the medical evidence of PW-1. PWs. 2 and 4 stated that on 29.3.2000 they participated in the ceremony of the first birth day of the male child which was celebrated in the home of the accused. On that day they had found the deceased physically hale and hearty and mentally sound. In the opinion of PW-1 Dr. Veena Sharma and Dr. S. Goja, the cause of death of the deceased was due to asphyxia most likely because of antemortem strangulation. The probable time that elapsed between injury and death was not known and between death and postmortem was 24 to 48 hours. Mangalsutra with black beads were found on the neck of the deceased. Lower lip of the deceased was swollen and congested and tongue was slightly protruded out. Doctors noticed linear abrasion mark present over anterior side of the neck of the deceased extending from right angle of mandible passing obliquely slightly downwards to the left side of neck, measuring 10 cm. approximately. Lower lip of the deceased was swollen and congested and tongue was slightly protruded out. Doctors noticed linear abrasion mark present over anterior side of the neck of the deceased extending from right angle of mandible passing obliquely slightly downwards to the left side of neck, measuring 10 cm. approximately. The medical evidence does not prove that the cause of death of the deceased was heart failure. The ocular evidence of PWs. 2 and 3 corroborated by medical evidence proves on record that the deceased died due to strangulation of her throat and not of heart attack as pleaded by the accused. The accused in answer to question No. 1 in his statement recorded under Section 313 Cr. P.C. has admitted that on inquiry being made from him he told to PW-2 that the deceased had died of heart failure. The conduct of the accused would show that he had given false explanation about the cause of death of his wife. This circumstance has been fully proved by the prosecution against the accused. . Circumstance No. 2., 12. PWs. 2, 4 and 8 accepting the version of the accused and villagers who were present near the dead body of the deceased that the deceased died due to heart attack had gone back to their village and discussed the matter with other members of their family. Their family members could not believe the version of the accused that the deceased died because of failure of heart as according to them the deceased was physically hale and hearty and mentally sound. They suspected some foul play and decided to report the matter to the Police. PW-2 on the morning of 2.4.2000 at about 8 a.m. made a telephonic call to the Police, Police Station, Lambagaon about the unnatural death of the deceased. PWs. 2, 4 and 8 along with some other persons of the village again went to the house of the accused after informing the Police to reach at the place of occurrence. PW-2 stated that on visual inspection of the dead body of the deceased, he found ligature marks on her throat. He telephonically called PW-3 Rasila Ram, President of the village of the accused to reach at the house of the accused as his niece Kirna Devi was killed. PW-2 stated that on visual inspection of the dead body of the deceased, he found ligature marks on her throat. He telephonically called PW-3 Rasila Ram, President of the village of the accused to reach at the house of the accused as his niece Kirna Devi was killed. PW-3 stated that on receipt of the telephonic message of PW-2, he immediately reached at village Tikru where PW-2 met him on the road and told him that the accused had caused the death of his wife by strangulation. PWs. 2, 4 and 5 have stated that on inquiry made by them from the accused about the cause of death of the deceased, the accused made extra-judicial confession to them that on the intervening night of the occurrence, he had a quarrel with his wife and then he strangulated her to death. PW-3 the Pradhan has not supported the prosecution to the extent that the accused made extra-judicial confession before him and he was declared hostile. In cross-examination conducted by learned Public Prosecutor he admitted that he visually inspected the dead body of the deceased at the time of taking of the photographs by PW-10, the Investigating Officer when he noticed linear reddish marks on her throat. He has also admitted that inquest report (Ext. PW-1/B) was prepared by the Investigating Officer in his presence which was signed by him. Further he admitted that the accused had taken out pieces of damaged bangles from the heap of a concrete of his house and handed over them to the Police which was taken into possession. He admitted his signatures, on the recovery memo. The versions of PWs. 2, 4 and 8 that the accused made extra-judicial confession to them finds corroboration from the testimony of independent witness PW-5 Shashi Pal who at the relevant time was a Teacher in Govt. Middle School, Mahilla and living in the neighborhood of the accused. It is the evidence of this witness that he enjoys very good reputation in the area. He went to the house of the accused after hearing the news of death of Smt. Kirna Devi. He visually inspected her dead body and noticed dark brown marks around her throat. Middle School, Mahilla and living in the neighborhood of the accused. It is the evidence of this witness that he enjoys very good reputation in the area. He went to the house of the accused after hearing the news of death of Smt. Kirna Devi. He visually inspected her dead body and noticed dark brown marks around her throat. He stated that on inquiry made by him from the accused who was sitting outside his house, the accused confessed that during the previous night there was some quarrel between him and his wife and he strangulated her to death. Further, he stated that the accused prayed that he should be pardoned. According to this witness, Smt. Hardei mother and Sushma Thakur (PW-5) sister of the accused came to him and fell on his feet saying that the accused should be pardoned. He told them that he-was nobody to pardon the accused but only Almighty God could forgive them. PW-2 and other relatives to the deceased also reached at the place of the occurrence and called local Pradhan. The Local Pradhan reached on the spot of the occurrence and asked the villagers gathered there in a angry tone as to why they could not inform him being so near to the house of the accused about the death of the deceased. The Pradhan had a talk with the accused. This witness further stated that before arrival of the relatives of the deceased and the Police, all preparation for cremation of the dead body of the deceased was made by the accused and other villagers. The witness was cross-examined at length but nothing could be elicited to prove that he is inimical towards the accused and wanted to implicate him in a false case. 13. No doubt, extra judicial confession in the very nature of things is a weak piece of evidence but it is not open to the Court to start with the presumption that extra judicial confession is a weak type of evidence. The reliability of extra judicial confession will depend on the nature of the circumstances under which the confession was made and the credibility of the witness to whom such a confession is made. The reliability of extra judicial confession will depend on the nature of the circumstances under which the confession was made and the credibility of the witness to whom such a confession is made. One of the tests to judge the truthfulness or otherwise of an extra judicial confession is whether the person to whom the confession has been made by the accused, is a person in whom the accused could repose confidence. Despite inherent weakness of extra-judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. That the evidence in the form of extra judicial confession made by the accused to witnesses cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If the Court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone. It is not to the court trying the criminal case to start with a presumption that extra judicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession. An unambiguous extra judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of any falsity. In Baldev Raj v. State of Haryana, AIR 1991 SC 37 : 1991(2) Cur.LJ. (C.C.R.) (S.C.) 92, Piara Singh v. State of Punjab, AIR 1977 S.C. 2274 and Madan Gopal Kakkad v. Naval Dubey, 1992(3) SCC 204, their Lordships held that the extra judicial confession which is not obtained by coercion, promise of favour or false hope and is plenary in character and voluntary in nature can be made the basis for conviction even without corroboration. To the same effect is the judgment in Gura Singh v. State of Rajasthan, 2001(2) Supreme Court Cases 205 and Gopal Chand v. State of H.P., 2004(1) Shim. LC. 58 : 2004(2) Cur.LJ. (HP.) D.B. 280. 14. As noticed earlier, PWs. To the same effect is the judgment in Gura Singh v. State of Rajasthan, 2001(2) Supreme Court Cases 205 and Gopal Chand v. State of H.P., 2004(1) Shim. LC. 58 : 2004(2) Cur.LJ. (HP.) D.B. 280. 14. As noticed earlier, PWs. 2, 4 and 8 are all relatives of the accused and PW-5 is the respectable, person of the area in whom, under the circumstances, the accused would have confided hoping for help, protection and being safeguarded. The confession had been made by him voluntarily and is not alleged to have been procured under any undue influence, coercion or pressure. Though the accused and his mother and sister expected a favour from PW-5, yet he has not promised to favour him in case he made a truthful statement regarding the occurrence. In the face of the positive, reliable and trustworthy evidence of PWs. 2, 4, 5 and 8 that the accused strangulated had confessed that he had strangulated his wife resulting her death, the contention of the learned Counsel for the accused that no reliance could be placed on the version of these witnesses to prove that the accused had made extra judicial confession to them does not find merit. This circumstance thus stands fully established by the prosecution. Circumstance Nos. 3 and 5 15. Both these circumstances are interlinked and dealt with together. The defence of the accused in his statement under Section 313 Cr. P.C. is that on the day of occurrence he had gone out of his house for making arrangement of money for. the treatment of his child who was not keeping good health as there was small hole in his heart and when he came back to his house he found his wife dead. The onus to prove the exception of plea of alibi rests upon the accused. It is the categorical statement of PW-6 sister of the accused that the old ancestral house of their family was divided between her father and his two brothers. Her father Tarlok Singh has constructed new R.C.C. house but in one portion of the old house, the accused, along with his wife and male child were living separately whereas she along with her father, mother and Bhabi, namely, Nelam are residing in the new constructed house. Her second brother is living with his family members in separate house. Her father Tarlok Singh has constructed new R.C.C. house but in one portion of the old house, the accused, along with his wife and male child were living separately whereas she along with her father, mother and Bhabi, namely, Nelam are residing in the new constructed house. Her second brother is living with his family members in separate house. Her real uncle PW-7 Daya Ram and Smt. Sheela Devi wife of her third uncle were residing in a portion of the house just next to the residential house of the accused. She stated that on 1.4.2000 (the day of occurrence) at about 10:30 p.m. after taking the meals, she went to her bed room as she was preparing for her M.A. examination when she heard some noise from the house of the accused. She along with her mother immediately went to the house of the accused and on reaching there they found Smt. Kirna Devi dead and the accused was present there in the room. Her uncle PW-7 and Tai (uncles wife) Sheela Devi too reached there. She picked up the male child of the deceased from the room and returned to her room. It is the evidence of PW-7 uncle of the accused that on 1.4.2000 after watching serial Hanuman he had gone to bed. On hearing the noise from the room of the accused, he went there and found the accused holding his wife to his chest and crying. His brothers wife Sheela Devi was already present there whereas Smt. Hardei Devi and PW-5 Shushma Thakur also came there. He found Smt. Kirna Devi dead. He placed the dead body .on the floor of the room. On inquiry being made, the accused told him that his wife had died of heart attack. This witness is a retired Head Constable of Police. The evidence of both these witnesses conclusively established that the accused was present in the room of his house in the company in his wife when she was found dead. The defence has not put any suggestion to both these witnesses that he was not present in the house when his wife was found dead by them. Both these witnesses are the close relatives or the accused and there is no plausible reason td disbelieve and discard their truthful version about the presence of the accused in his room on the night of the "occurrence. Both these witnesses are the close relatives or the accused and there is no plausible reason td disbelieve and discard their truthful version about the presence of the accused in his room on the night of the "occurrence. Both these circumstances are conclusively proved by the prosecution by leading cogent, reliable and trust worthy evidence. The contention of the learned Counsel that the prosecution has failed to prove these circumstances against the accused by leading believable evidence cannot be accepted. The accused has failed to discharge the onus placed on him to plead the exception of alibi. Circumstance No. 4 16. The accused pleaded, that his Wife used to remain under depression because of ill-health of her son who has a hole in his heart and due to that reason she committed suicide by taking poison is unsustainable and untenable. As noticed above, the first birth day of the male child was celebrated by the accused and the deceased on 29.3.2000 which was also attended by PWs. 2 and 4. They found the deceased physically fit and mentally sound. It is the evidence of PW-8 mother of the deceased that her husband Prithvi Chand at the relevant time was serving in the Indian Army. She had given a sum of Rs. 5,000/- to the accused and her daughter when the accused came back to his house after leaving the private job at Bangalore, State of Karnataka. Again in January, 2000 she had sent Rs. 2,000/- to the accused. The accused and the deceased both had come to her house on 24.3.2000 when she gave another sum of Rs. 1100/- to them to celebrate the first birth day of their son. Smt. Kirna Devi was pregnant at that time. It is not in dispute that the heart contains a small hole. A suggestion of the defence that the deceased was under constant depression due to the illness of the child, is categorically denied by these witnesses. PW-8 had assured the accused that medical treatment of the child would be done by them. It is the evidence of PW-5 that after the death of the deceased, paternal grand-parents are looking after the child. PW-8 had assured the accused that medical treatment of the child would be done by them. It is the evidence of PW-5 that after the death of the deceased, paternal grand-parents are looking after the child. It has come in the cross-examination of PW-10 the Investigating Officer that during the investigation of the case it came to his notice that the accused had put a tablet of sylphs in a glass of water at 4.30 p.m. and kept the glass by the side of the window of the room of the deceased. The glass was not taken into possession by him as the accused had already learned it. A suggestion to PWs. 2, 4, 8 and 10 by the defence that the deceased committed suicide has been categorically denied by them. The medical evidence as noticed above does not support the defence of the accused that the deceased committed suicide by taking poison. It has come in the evidence of PW-1 Dr. Veena Sharma that symptom of poisoning will cause nausea, giddiness vomiting and unconsciousness. She stated that a person having taken poison and having developed the said symptom will not be in a position to defend himself during his strangulation. Doctor deposed that it was possible that lineal ligature marks noticed on the neck of the deceased was caused by pressing of the Mangalsutra around her neck. The doctor had found a dead fetus in the dead body of the deceased. On scrutiny of the entire evidence of the above said witnesses, the prosecution has proved on record that the deceased had not committed suicide as pleaded by the accused but her throat was strangulated by the accused with the aid of Mangalsura found on her neck. The learned trial Court has analyzed and appreciated the entire evidence on record holding the accused guilty of the offence. We find no infirmity or perversity in the reasoning and finding of the learned trial Court to call for interference in this appeal. This circumstance is proved by the prosecution by leading cogent, reliable and trust worthy evidence. 17. No other point was urged by the learned Counsel for the accused. 18. For the above said reason, we find no merit in this appeal which is accordingly dismissed. The case property shall be dealt with as directed by the trial Court.