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2013 DIGILAW 292 (HP)

STATE OF H. P. v. SARWAN SINGH

2013-04-09

DHARAM CHAND CHAUDHARY, SURINDER SINGH

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JUDGMENT SURINDER SINGH, J. - 1. THE acquittal of the respondent, hereinafter referred to as the accused, for offence of murder punishable under Section 302 of the Indian Penal Code has been challenged in this appeal by the State. 2. IT is contended by the learned Additional Advocate General duly assisted by learned Deputy Advocate General and learned Assistant Advocate General that the learned trial court did not appreciate the evidence in this case in the right perspective, which caused prejudice to the State. They also referred to the circumstances attendant upon the accused and argued that if these circumstances are properly appreciated; there are grounds for converting the acquittal into conviction. Contra, Shri Deepak Kaushal, learned counsel appearing for the respondent supported the impugned judgment of acquittal. 3. WE have given our thoughtful consideration to the rival contentions of the parties and carefully reappraised the evidence on record. 4. PRECISELY, the case of the prosecution is that Smt. Gian Kaur (deceased) had two sons including the accused and one daughter. One of the sons, the daughter and her husband had died, as such the share of the deceased persons had gone to the deceased mother. Whereas the accused had already sold his entire share and shifted to village Hapuripur Tohana, in Tehsil Paonta Sahib, nearer to the place of his in-laws, where he allegedly purchased some property and resided there with his family. Just ten years ago from her murder, Smt. Gian Kaur had asked the accused to return to his village along with his family as she was alone, thus on her persuasion, he came along with his family and settled down with his mother in Village Taruwala. The deceased mother was managing separate kitchen and had given the landed property to the accused for cultivation on contract. She had also executed a Will in favour of her grandsons i.e. offspring of the accused, but it is alleged that the accused was not pulling well with her as such she later on i.e. 21st March, 2000 revoked the Will. Even Pradhan PW-1 Surjit Singh knew this fact. She insisted upon the accused to leave her house and vacate the land. But the accused was no longer interested to do so as such it created bad-blood between the mother and the accused son. 5. Even Pradhan PW-1 Surjit Singh knew this fact. She insisted upon the accused to leave her house and vacate the land. But the accused was no longer interested to do so as such it created bad-blood between the mother and the accused son. 5. ON 1.4.2006, PW-1 Surjit Singh, while on his way to Paonta Sahib, at about 1.30 p.m. came across the accused, who at that time alleged to have disclosed that he has killed his mother Gian Kaur. The said witness did not take it seriously and told him to report the matter to the police. 6. AS per the case of the prosecution, the accused reached Police Station around 2.45 p.m. and informed about the above fact to Police, which was jotted down in daily diary Ex.PW-21/A. Thereafter, the police reached the spot along with the accused and noticed that the dead body of Smt. Gian Kaur, was lying in the kitchen. Thereafter, the police recorded the statement of PW-1 Surjit Singh under Section 154 Cr.P.C. They also prepared the site plan Ex.PW-22/C of the place of occurrence. After filling up the inquest papers, the dead body was sent for autopsy. On the same day, the postmortem was conducted, at the request of Police, by PW-16 Dr. K.L. Bhagat and he noticed the following injuries on her person:- i) Bruises were present around the neck in front portion. Ecchymossis was present on the skin over the lyranx area. ii) Though there was no ligature mark, on dissection of the neck sub cutaneous tissue of the neck was shown extravasation of the blood and fracture of laryngeal cartilage occurred with fracture of the hyoid bone on the left side (left horn of the hyoid bone) iii) Fracture of the laryngeal cartilage, trachea was found lacerated. In the opinion of the doctor, Smt. Gian Kaur, deceased has died due to asphyxia (due to throttling causing the fracture of laryngeal cartilage with fracture of the hyoid bone with laceration to the trachea, which led to asphyxia and cardio pulmonary arrest). 7. THE viscera was taken and sent for chemical examination. The postmortem report Ex.PW-16/A handed over to the Police. As per the report of the Forensic Science Laboratory Ex.PW-22/E, no poison was detected in the viscera, thus the final opinion regarding death remains the same. 8. AFTER completing investigation, the challan was presented in the court for trial. 7. THE viscera was taken and sent for chemical examination. The postmortem report Ex.PW-16/A handed over to the Police. As per the report of the Forensic Science Laboratory Ex.PW-22/E, no poison was detected in the viscera, thus the final opinion regarding death remains the same. 8. AFTER completing investigation, the challan was presented in the court for trial. The accused was accordingly charge-sheeted under Section 302 Indian Penal Code to which he pleaded not guilty and claimed trial. To prove its case, prosecution examined its witnesses and accused was also examined under Section 313 of the Code of Criminal Procedure. He denied the circumstances, which were found attendant upon him and maintained innocence. When called upon to enter into his defence, the accused examined DW-1 Ramesh. He stated that the deceased was having cordial relations with the accused though maintaining separate kitchen. DW-2 is Dhanwant Singh. According to him, on the day of alleged incident, the deceased was present in the marriage of his relative at Village Puruwala, at a distance of 7 kilometers from his house. The learned trial court, at the end of the trial, disbelieved the prosecution evidence and acquitted the accused as the circumstances put forth were not enough to prove the charge against the accused. 9. AFTER having gone through the evidence on record, we find that the prosecution has relied upon the two following circumstances:- i) Extra judicial confession made to PW-1, Surjit Singh; and ii) plea of guilt of accused recorded in daily diary Ex.PW-22/A. 10. ADMITTEDLY, the instant case hinges upon the circumstantial evidence and there is no eye witness to the incident. As a matter of fact, the circumstances put forth should be of a conclusive nature and tendency, before the court can put any reliance thereon. In so far as the first circumstance is concerned, for that the prosecution relies upon the statement of PW-1 Surjit Singh, who on his way to Paonta Sahib came across the accused just 50 meters short of the police station and told him that he had killed his mother, to which he did not take it serious, but he stated to have told him to report the matter to the Police. Later on, when the police reached village Taruwala, he followed them and saw Smt. Gian Kaur was lying dead in her kitchen. Later on, when the police reached village Taruwala, he followed them and saw Smt. Gian Kaur was lying dead in her kitchen. This circumstance was put to the accused in his statement under Section 313 Cr.P.C., to which he denied. 11. THE above statement of PW Surjit Singh does stand to scrutiny, pertinently, when the police had reached the spot, and made the statement Ex.PW-1/A before the Police under Section 154 of the Code of Criminal Procedure, wherein he did not make any mention of the extra judicial confession alleged to have been made as aforesaid, by the accused. Rather he stated therein that he came to know about the murder of the deceased at about 3.00 p.m. He was confronted with the said statement in his cross-examination, but he could not give any plausible explanation for this omission. In the absence of this, the alleged extra judicial confession looses its importance. 12. THE second circumstance is of admitting the guilt by the accused before the police, regarding which a mention has been made in daily diary Ex.PW-21/A on 1.4.2006, at 2.45 P.M., which is sought to be proved from PW-21, HHC Balbir Singh and PW-23, MC Amar Singh. Though, he denied that this evidence was falsely created against the accused, but pertinently stated that he along with the police party had reached the spot around 3.00 p.m., whereas PW-1 Surjit Singh, in his cross- examination stated that Police had reached Taruwala i.e. the place of incident at 2.00 p.m. and he had seen the Police coming to the house of the deceased in jeep from Patwarkhana and he followed them. Whereas PW-2 Gurmit Singh stated that after attending the marriage at Puruwala, he returned to his village and came to know at about 1.30 p.m. about the alleged incident, thereafter he went to the house of Gian Kaur and found that her dead body was lying in the kitchen and police had already reached there and even the accused as well as PW-1 Surjit Singh both were also present there. On this score, the witness has not been re- examined by the prosecution to dislodge the version that the police was not on the spot at 1.30 p.m. Therefore, in view of the above discussed evidence, even the entry in the daily diary Ex.PW-21/A becomes doubtful and the confession is also otherwise inadmissible in evidence. On this score, the witness has not been re- examined by the prosecution to dislodge the version that the police was not on the spot at 1.30 p.m. Therefore, in view of the above discussed evidence, even the entry in the daily diary Ex.PW-21/A becomes doubtful and the confession is also otherwise inadmissible in evidence. Though, it can only be used as conduct evidence, but it appears to us that this entry is not genuine and has been created with a view to lend strength to the prosecution case. The learned Additional Advocate General submitted that the motive in this case is clear to commit the crime. In our opinion, a motiveless crime is also a crime, but prosecution is obliged to prove the case against the accused beyond reasonable doubt, to which it failed. 13. THEREFORE, for the above stated reasons and in view of the judgments passed by the apex court in Sharad Birdhichand Sarda versus State of Maharashtra, (1984) 4 SCC 116 , State of Uttar Pradesh versus Satish, (2005) 3 SCC 114 and Babu versus State of Kerala, (2010) 9 SCC 189 , the prosecution evidence is not of a conclusive nature and tendency, on which we can put our reliance to convert the acquittal into conviction. Thus, in our considered opinion, the prosecution has failed to prove its case beyond reasonable doubt and we find no fault in the impugned judgment passed by the learned trial court. The appeal filed by the State is accordingly dismissed. 14. THE respondent is discharged of his bail bonds entered upon by him at any stage, during the proceedings of this case.