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2012 DIGILAW 233 (HP)

State Of Himachal Pradesh v. Santi Devi

2012-04-30

DEEPAK GUPTA, V.K.AHUJA

body2012
JUDGMENT : Deepak Gupta, J. This appeal by the State is directed against the judgment dated 9.6.2005 delivered by the learned Presiding Officer, Fast Track Court, Mandi, whereby he acquitted the accused of having committed offences punishable under Sections 302 and 201 of the Indian Penal Code. Briefly stated the prosecution story is that accused Santi Devi was having an affair with Gauri Dutt (deceased). On 1st February, 2001 Gauri Dutt went to the house of the accused at village Sakrod at about 7.45 pm. PW-3 Dile Ram and his wife PW-4 Kanhi Devi, who are neighbours residing at a distance of about 30-35 feet, heard the cries of some man from the house of Santi Devi at night. In the morning on 2nd February, 2001, the dead body of Gauri Dutt was seen lying in his fields by PW-3 Dile Ram. The dead body had injuries on the head and face. Thereafter PW-3 Dile Ram informed PW-2 Mangat Ram as well as PW-1 Purshotam, father of the deceased. PW-2 Mangat Ram gave telephonic information to the police, which was recorded in the daily diary report Ext. PW-10/A. PW-14 Dharam Chand, SHO, Police Station Gohar alongwith H.C. Dilu Ram and two Constables went to the spot and the statement Ext. PW-1/A of PW-1 was recorded u/s 154 Cr.P.C. On the basis of this statement, FIR Ext. PW-10/ B was registered at Police Station, Gohar. Further investigation was carried out and the photographs of the dead body were taken. Blood stained soil, stone and leaves were taken into possession from the spot, where the dead body was found and seized vide memos Ext. PW-2/A and Ext PW-2/B. The blood lying at the spot near the dead body was also taken into possession in a plastic Jar vide memo Ext. PW-14/C and spot map Ext. PW-14/D was prepared by the Investigating Officer. 2. The body of the deceased Gauri Dutt was sent for conducting the postmortem examination. PW-7 Dr. Jiwa Nand Chauhan carried out the postmortem examination and issued postmortem report Ext. PW-7/A and according to him the deceased died due to combined effect of head injury and multiple injuries on the other parts of the body. 2. The body of the deceased Gauri Dutt was sent for conducting the postmortem examination. PW-7 Dr. Jiwa Nand Chauhan carried out the postmortem examination and issued postmortem report Ext. PW-7/A and according to him the deceased died due to combined effect of head injury and multiple injuries on the other parts of the body. It is the further case of the prosecution that on 3rd February, 2001, the Investigating Officer found blood lying at a distance of every 10 feet on the path leading from the place where the body of Gauri Dutt was found to the house of the accused and fresh spot map Ext. PW-14/E was prepared in this behalf. The accused was arrested on 4th February, 2001 and thereafter on 6th February, 2001 she allegedly made a disclosure statement Ext PW-6/A and pursuance to this disclosure statement got recovered the 'Chimta' Ext. P-1, which is alleged to be the weapon of offence. The recovery was made in the presence of PW-8 and PW-13. Next day the accused allegedly identified the place of recovery of the dead body etc. She also made a disclosure statement with regard to clothes i.e. Salwar Ext. P-3 and Shirt Ext. P-2, which she was allegedly wearing at the time of murder. These were taken into possession vide seizure Memo Ext. PW-8/A. The prosecution case is that at the instance of the accused her shoes were seized vide memo Ext. PW-8/B alongwith rope Ext. P-5 which was seized vide Memo Ext. PW-8/C. The prosecution case is that the accused was wearing these clothes and shoes at the time when she murdered the deceased. Further the case of the prosecution is that rope Ext. P-5 was used to tie the deceased and drag his body to the fields of Dile Ram. During the course of investigation, the police also allegedly recovered a wooden plank Ext. P-7 containing stains of blood which was recovered from the cowshed of the accused. The chappal of the deceased Ext. P-8 was allegedly recovered from the bushes as a result of search and this chappal was identified to be that of the deceased by PW-1 vide memo Ext. PW-8/G. The statements of the witnesses were recorded and after completing the investigation, the accused was charged with having committed the offences aforesaid. His case was of denial simplicitor. The learned trial Court acquitted the accused. PW-8/G. The statements of the witnesses were recorded and after completing the investigation, the accused was charged with having committed the offences aforesaid. His case was of denial simplicitor. The learned trial Court acquitted the accused. Hence this appeal by the State. 3. It is not disputed that the deceased was murdered. The medical evidence of PW-7 Dr. Jiwa Nand Chauhan is very clear that the deceased died due to ante mortem injuries which he suffered. The only question is - who killed the deceased? Nobody has seen the offence being committed and therefore, the entire case of the prosecution is based on circumstantial evidence. 4. The law with regard of circumstantial evidence is very clear. In Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116 , the Supreme Court held as under:- The following conditions must be fulfilled before a case against an accused can be said to be fully established. (1) that circumstances from which the conclusion of guilt is to be drawn should be fully established. (2) that facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) The circumstances should be of conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence to complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 5. In Dhananjay Chatterjee alias Dhana Vs. State of W.B., (1994) 2 SCC 220 their Lordships held as under:- In a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. Those circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not merely indignation of the Court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof. 6. The decision of Sharad Birdhichand Sarda and Dhananjoy Chatterjee cases (supra) were relied upon by their Lordships of the Supreme Court in Subhash Chand Vs. State of Rajasthan, (2002) 1 SCC 702 7. The circumstances relied upon by the prosecution are the following:- 1. That on 1.2.2001 the deceased had gone to the house of the accused and thereafter noise of beating and cries of a man were heard from the house of the accused by PW-3 and PW-4. 2. That the accused while in police custody gave disclosure statement u/s 27 of the Evidence Act and in pursuance of the said disclosure statement she got recovered the weapon of offence i.e. 'Chimta' Ext. P1 and as per medical evidence on record the injuries sustained by the deceased which resulted in his death are possible with 'Chimta' Ext. PI. 3. That the accused during the investigation presented her clothes and shoes which on chemical examination were found to be stained with blood. 4. That the blood stains were also found on the wooden plank which was recovered from the room of the accused. 5. That the accused got recovered 'Chappals' of the deceased during the investigation alongwith rope which was used by the accused in removing the body of the deceased Gauri Dutt from her house. 6. That the blood was found at every 10 feet on the path leading towards the house of the accused Santi Devi during the investigation qua which spot map Ext. PW-14/E was prepared. First circumstance. 8. According to the prosecution the deceased Gauri Dutt had visited the house of the accused on 1st February, 2001 at about 7.45 pm. The only evidence led by the prosecution in this behalf is the statement of the father of the deceased PW-1 Purshotam. PW-14/E was prepared. First circumstance. 8. According to the prosecution the deceased Gauri Dutt had visited the house of the accused on 1st February, 2001 at about 7.45 pm. The only evidence led by the prosecution in this behalf is the statement of the father of the deceased PW-1 Purshotam. However, this witness has clearly admitted that he was not at home on 1st February, 2001. According to him he had gone to village Behali on 1st February, 2001 and returned home the next morning at 8.30 am. When he came back he enquired from his wife as to where his son was and then she informed him that the deceased Gauri Dutt had gone to the house of the accused. Therefore, this witness himself had no personal knowledge about the deceased having gone to the house of the accused. His statement is hear say and based on the information given to him by his wife who has not been examined in Court. It was only the mother of the deceased who could have clearly stated where the deceased had gone. 9. Furthermore from the evidence on record, it is apparent that the house of PW-1 Purshotam at village Kot is at a distance of 1 Km from the house of the accused. Therefore, the possibility of the deceased going somewhere else cannot be ruled out. No person has seen the deceased actually entering into the house of accused and therefore, this circumstance has not been proved. 10. To prove this circumstance the prosecution has relied upon the statements of PW-3 and PW-4 who stated that they heard the cries of a man coming from the house of the accused. Even if these statements are accepted to be true all that can be inferred is that the cries of some male person were heard. It cannot be inferred that these cries were of the deceased and not of any other person. From the evidence of PW-3 Dile Ram, it is also clear that he is a co-sharer in the house, in which the accused is living, and that there is some dispute going on regarding this house. Therefore, his statement cannot be accepted at its face value. Second circumstance 11. By means of this circumstance, the prosecution wants to prove that the weapon of offence was recovered at the instance of the accused. Therefore, his statement cannot be accepted at its face value. Second circumstance 11. By means of this circumstance, the prosecution wants to prove that the weapon of offence was recovered at the instance of the accused. To prove this circumstance first of all the prosecution had to prove that it was this 'Chimta' which alone was the weapon of offence. No doubt, PW-7 Dr. Jiwa Nand Chauhan opined that the injuries on the person of the deceased could have been caused by 'Chimta, but this does not mean that the injuries were caused by this very 'Chimta' and not by any other weapon. Most importantly blood stains were found on the 'Chimta' and blood was recovered from the clothes and near the body of the deceased. The samples were sent to the Forensic Laboratory, which as per its report Ext. PW-14/F has been unable to give the grouping of the blood. This crime was committed in the year 2001 and no effort was made to get the DNA analysis of the samples done. Merely because human blood was found would not be sufficient to link the 'Chimta' with the death of the deceased. 12. Furthermore, the recovery of 'Chimta' itself is not free from doubt. The said 'Chimta' has been recovered on the basis of the disclosure state-: ment allegedly made by the accused to PW-14, the Investigating Officer in presence of PW-6 Tarapati. As per this disclosure statement the accused is alleged to have stated that the 'Chimta' which she had used to kill Gauri Dutt had been concealed by her in her house and she can get the same recovered. When her statement Ext. PW-6/A is perused it is clear that this statement does not only talk about the 'Chimta' but this was a composite statement in which the accused had made a disclosure statement wherein she had indicated that she can not only get recovered the 'Chimta' but also the clothes which she was wearing at the time of incident and the rope which she had used for dragging the body of the deceased. Neither PW-6 Tarapati nor the Investigating Officer PW-14 Dharam Chand have uttered a single word with regard to the rope and clothes. The statement cannot be read in parts and either the whole statement was correct or the whole has to go. 13. Therefore/ the veracity of the statement itself is in doubt. Neither PW-6 Tarapati nor the Investigating Officer PW-14 Dharam Chand have uttered a single word with regard to the rope and clothes. The statement cannot be read in parts and either the whole statement was correct or the whole has to go. 13. Therefore/ the veracity of the statement itself is in doubt. Assuming for the sake of arguments that the accused had given such disclosure statement the next thing which the prosecution had to prove was that the 'Chimta' was actually recovered at the instance of the accused. The evidence in this behalf is totally missing. The witness examined in this behalf is PW-8 Bhabdev who no doubt states that the accused got the 'Chimta' recovered which had been kept on the wall of her house but PW-13, who is the other witness to the recovery, did not corroborate the statement of PW-8. According to this witness the 'Chimta' Ext. P-1 was recovered from the house of the accused vide memo Ext. PW-8/D and the same was packed in a parcel and sealed with seal impression 'H'. He, however, has not stated that the 'Chimta, was recovered at the instance of the accused. Therefore, the second circumstance has also not been proved. Third circumstance 14. The third circumstance relied upon is the so called recovery of the clothes and shoes. As noted above the disclosure statement was made in presence of PW-6 and PW-14 but these witnesses have not said even a single word about the disclosure statement in respect of the clothes and rope. However, the recovery is stated to have been made in presence of PW-8 and PW-13. PW-13 only states that the clothes i.e. salwar, shirt and rope were taken into possession but he does not state that these were recovered at the instance of the accused. Therefore, this circumstance is also not proved. Fourth circumstance 15. This circumstance is with regard to the recovery of wooden plank from the cowshed of the accused which allegedly contained the blood of the deceased. As already submitted earlier even with regard to this wooden plank, there is no evidence to show that the blood on the said wooden plank was of the deceased. Furthermore, there is great contradiction with regard to recovery of this wooden plank. According to PW-8 and the recovery memo Ext. PW-8/E this wooden plank Ext. P-7 was recovered from the cowshed of the accused. Furthermore, there is great contradiction with regard to recovery of this wooden plank. According to PW-8 and the recovery memo Ext. PW-8/E this wooden plank Ext. P-7 was recovered from the cowshed of the accused. Whereas according to PW-13 this wooden plank was recovered from the first floor of the house of the accused. This clearly shows that this recovery is also a concocted piece of evidence. Fifth circumstance 16. The fifth circumstance is the recovery of chappals of the deceased at the instance of the accused and the rope which she allegedly used to drag the body of the deceased. As far as the recovery of chappals is concerned, the less said the better. The chappals, even according to the prosecution were identified to be belonging to the deceased by the father Shri Purshotam. When Purshotam was examined in Court as PW-1, he did not say a word with regard to Chappals. Therefore, the prosecution has even failed to prove that these chappals belonged to the deceased. With regard to the recovery there is again contradiction between the statements of PW-8 and PW-13. These chappals were allegedly recovered from bushes behind the house of the accused and the same was supposed to have been made on 7th February, 2001. The recovery of these chappals almost six days after the incident from an open place is virtually meaningless and therefore, this circumstance is also not proved. Sixth circumstance 17. Circumstance No. 6, according to the prosecution is the fact that spots of blood were found at every 10 feet on the path leading from the house of the accused till the place where the dead body was found. The only evidence in this behalf is that of the Investigating Officer, who prepared the spot map Ext. PW-14/D showing the various places where the spots of blood were found. It would be pertinent to mention that this very witness had prepared a spot map Ext. PW-14/D on 2nd February, 2001. This was the day when the Investigating Officer had first gone to the site. He prepared a spot map on that very day which is Ext. PW-14/D. In this spot map there is no mention of any spots of blood. PW-14/D on 2nd February, 2001. This was the day when the Investigating Officer had first gone to the site. He prepared a spot map on that very day which is Ext. PW-14/D. In this spot map there is no mention of any spots of blood. When a police official is investigating a murder case and a dead body is found from the fields the least which is expected of him is to see whether there are blood marks leading to any other place. There is no mention to these blood marks on spot map Ext. PW-14/D, which is purported to have been prepared on 3rd February, 2001. There is no explanation as to why these blood marks were not noticed on the previous day. Therefore, this circumstance can also not be relied upon. In view of above discussion, none of the circumstances have been proved by the prosecution. Therefore, we dismiss the appeal and uphold the judgment of acquittal passed by the learned trial Court. Bail bonds discharged.