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2013 DIGILAW 384 (HP)

STATE OF HIMACHAL PRADESH v. PAPPU KUMAR

2013-05-06

SURINDER SINGH, V.K.SHARMA

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JUDGMENT SURINDER SINGH, J. - 1. THE respondent, hereinafter to be referred as 'the accused', was charge-sheeted, tried and acquitted for the offences punishable under Sections 302 and 201 of the Indian Penal Code, by the learned trial Court, for allegedly causing the murder of Shri Hans Raj. 2. HEARD and gone through the record. The accused is the step-brother of deceased Hans Raj, whereas PW6 Mulkh Raj and the deceased are the real brothers. The mother of the deceased had given Whether reporters of the Local papers are allowed to see the judgment? Yes. whole land to the accused and he was residing with his step-mother Ishari Devi. The accused had started to construct a new house over the joint land. He had laid the plinth of his house, which was objected to by the deceased and Mulkh Raj aforesaid. As such, the matter was reported to police to stop the work till the land is partitioned amongst all the three brothers. 3. IT is alleged that the accused had threatened PW6 Mulkh Raj as well as his deceased brother with dire consequences. On 6.11.2003 when they had gone to sleep during the night, the accused was guarding the construction work by putting a tent nearby. 4. ON next morning, i.e., 7.11.2003 PW4 Parveen Kumar telephonically informed the police that Hans Raj was lying dead in the water-channel (Kulh). This information was taken down by PW17 ASI Tarsem Lal in daily-diary Ext.PW11/A and proceeded to the spot where he met with PW5 Mast Ram, Up-Pradhan, who gave his statement under Section 154 of the Code of Criminal Procedure to the effect that he was informed by PW6 Mulkh Raj, the brother of the deceased, in the morning at about 7.30 a.m. that the dead body of his brother found in the canal having bleeding injuries. Thereafter he enquired from Pinki Devi, his wife (PW2), who had told him that when her husband had left for defecation, thereafter she heard some commotion from the side of the fields, but she did not come out. In his statement to the police he did not suspect anyone. Thereafter the police prepared the inquest papers and also the site plan of the place where the dead body was found and sent the dead-body for autopsy. Pw2 Dr. In his statement to the police he did not suspect anyone. Thereafter the police prepared the inquest papers and also the site plan of the place where the dead body was found and sent the dead-body for autopsy. Pw2 Dr. D.P. Swami had conducted the postmortem on the same day at 11.00 a.m. He noticed the following injuries on the dead body: (i) Four bruises (pressure marks) on the left side of neck each 7" long and slightly extending to right side, breadth about ¼" reddish. (ii) Incised wounds number two already existing injuries No.1 and 2 (bruises) each 2" x ¼" spindle in shape, reddish in the middle of each bruises i.e. sharp margins. (iii) Incised lacerated wound on the left side of lower part of cheek, oblique, spindle shaped relatively sharp margin. (iv) Grazed abrasion No.2 on left upper arm each at mid and upper auger, aspect of arm each 3"x ¼" reddish. (v) Grazed abrasion on the left side of shoulder blade region 1"x1" reddish. (vi) Scratch abrasion on left side upper arm, mid portion 2 1/2" long reddish. The gap between each of the injury on neck was approximately 1", which were transversally placed on the front of neck. Semi-digested food was found in the abdomen. In the opinion of the doctor, the time lapsed between the injuries and death was 1 to 8 minutes and between death and postmortem was 12 to 24 hours and the person was opined to have died of pressure injuries or strangulation of neck leading to asphyxia and shock. There was no postmortem injury and the deceased had died within half an hour of the food taken. Further doctor had seen no evidence of pathology or drowning. The postmortem report is Ext.Pw2/C and the sharp injuries are alleged to have been caused with "Drat" Ext.P.1. 5. ON 8.11.2003 police arrested the accused and got him medically examined. His Medico Legal Certificate is Ext.PW1/B. On 8.11.2003 he gave the disclosure statement in the presence of PW5 Mast Ram and Chanchala Devi (not examined), pursuant to which "Drat" Ext.P.1 and his clothes were taken into possession from the Tent lying under his bed and also 'Danda'. 6. THE accused is also stated to have pointed out the place of occurrence. 6. THE accused is also stated to have pointed out the place of occurrence. The police had also taken PW8 Kashmir Singh Rana, Technician, working in Red Cross Society, Dharamshala to the spot and lifted the blood lying on the leaves of bamboo and green-grass for grouping. He issued his report Ext.PW8/A. The blood group was O+. The photographs of the spot were also taken. The clothes of the accused were taken into possession and sent for forensic examination alongwith leaves of bamboo and "Drat". Though it contained human blood, but was insufficient for its grouping. 7. DURING the investigation, the statements of other witnesses were also recorded and after completing the investigation, challan was presented in the Court for the trial of the accused. He was accordingly charge-sheeted for the offences aforesaid to which he pleaded not guilty and claimed trial. 8. TO prove its case, the prosecution examined its witnesses. The accused was also examined under Section 313 of the Code of Criminal Procedure. He denied the circumstances which were found attendant upon him and alleged false implication in the case. When called upon to enter upon his defence, he did not lead any evidence in defence. There is no eye witness and the whole case hinges upon the circumstantial evidence and particularly the recoveries and alleged extra-judicial confession made by the accused to PW5 Mast Ram. The trial Court did not believe the prosecution evidence, as such acquitted the accused by giving the benefit of doubt. 9. ON re-appreciation and reconsideration of the matter, we do not find any fault in the impugned judgment of acquittal. The circumstances which stand proved against the accused are that the whole of the agricultural land which was owned by the family had been put into possession of the accused by his mother without providing any share to others. There was also a dispute with respect to laying of plinth over the joint land without getting the partition regarding which, the deceased as well as his brother PW6 Mulkh Raj had laid a protest and reported the matter to police. The suspicion laid on the accused, as during day time he is alleged to have administered threats to Mulkh Raj and the deceased on the basis of which the accused was arrested by the police and the alleged recoveries are stated to have been affected. 10. The suspicion laid on the accused, as during day time he is alleged to have administered threats to Mulkh Raj and the deceased on the basis of which the accused was arrested by the police and the alleged recoveries are stated to have been affected. 10. NOW, the question is whether the above evidence is enough to link the accused with the offence? The answer is in "no". It is a well established principle of law that whatever strong suspicion may be, it cannot take the place of proof. The prosecution has to stand on its own legs and lead evidence worth inspiring confidence to link the accused with the crime. 11. THE whole case hinges upon the circumstantial evidence, as noted above and it is also a fact that it was a homicide death. 12. IN fact, the prosecution witnesses have themselves made the prosecution story doubtful firstly, when the deceased did not turn-up and PW3 Pinki Devi, his wife, is stated to have heard some commotion emanating from the fields she did not raise any hue and cry nor informed her brother-in-law PW6 Mulkh Raj till she was asked next morning about the whereabouts of her husband. Secondly, PW6 Mulkh Raj stated that on 6.11.2003 he was sleeping in his house and next morning Parveen Kumar (PW4) came to his house and enquired from the wife of the deceased about his whereabouts. He also informed that the dead body of the deceased was lying in the water-channel. He alongwith his sister-in- law Pinki Devi visited the spot and found that the deceased was lying dead and informed Pradhan Pushpa Devi (not examined). Surprisingly, when PW7 Renu Kumar had already noticed the dead-body during the night he did not inform anyone. When examined in the Court, he stated that he alongwith his uncle Ravi Dutt had been irrigating the fields in the evening of 6.11.2003. They worked there till 7.00 p.m. Thereafter they took the meals in their house and after taking some rest both of them proceeded to their fields and they found that the flow of the water was chocked and the water was overflowing from the diversion cut. When he dipped his hands in the 'Kulh' to take out the mud for making diversion proper, the hand of the deceased came in contact. When he dipped his hands in the 'Kulh' to take out the mud for making diversion proper, the hand of the deceased came in contact. Thereafter both of them took out the dead- body from the water and identified the deceased with the help of torch to which they were having, thereafter they informed Pradhan Pushpa Devi. Admittedly, he did not inform the police till morning but when the police reached the village he was also interrogated alongwith his uncle Ravi Dutt. Even he did not disclose this fact to the wife of the deceased as well as his brother Mulkh Raj as how they had found the dead body. The police kept both of them under interrogation for couple of days. The statement of PW7 Renu Kumar was not recorded till 7.11.2003, as stated by him in cross-examination. Admittedly, even on 7.11.2003 he also did not disclose this fact to the police, but according to him, his statement was recorded after five days of the said incident disclosing the above facts. Further, the accused was taken for interrogation on 7.11.2003 and arrested on 8.11.2003. He is stated to have made an extra judicial confession to PW5 Mast Ram disclosing how he killed the deceased and could recover the "Drat" used for the commission of crime, but Ext.PW5/A in his earlier statement there is no reference about it and the disclosure statement Ext.PW5/B recorded under Section 27 of the Indian Evidence Act is in the form of confession, which cannot be used as a confession. 13. THE confessional statement of the accused against the provision of Section 27 of the Act and without following procedure of recovery is not admissible unless the disclosure statement of the accused is proved and consequential recovery at his instance, is also not an extra-judicial confession. 14. INFORMATION leading to discovery is merely a link in the chain of circumstances. That by itself is not sufficient to secure conviction, where other links are missing and the chain is not complete. Section 27 of the Indian Evidence Act makes admissible so much of the statement of the accused which leads to the discovery of a fact deposed by him and connected with the crime irrespective of the question whether it is confessional or not. Section 27 of the Indian Evidence Act makes admissible so much of the statement of the accused which leads to the discovery of a fact deposed by him and connected with the crime irrespective of the question whether it is confessional or not. The essential ingredient is that the information given by the accused must lead to the discovery of the fact which is direct outcome of such information and secondly, only such portion of information given as distinctly connected with the said discovery is admissible against the accused. Thirdly, the discovery of the fact must relate to the commission of some offence. When these ingredients are proved, the embargo on the statement of the accused before the police while in custody, will not apply. Thus, the prosecution has to lead best evidence to prove that the disclosure statement of the accused led to the recovery of crime article. In the instant case, PW5 Mast Ram stated that on 7.11.2003 at about 7.00 a.m., PW6 Mulkh Raj informed him that his deceased brother was attacked with sharp edged weapon and thrown into 'Kulh'. He did not mention the name of the accused. He visited the spot alongwith some other persons and Pushpa Devi (not examined) Pradhan of Ichhi Panchayat, thereafter he got recorded his statement. During interrogation on 8.11.2003 the accused made disclosure statement Ext.PW5/B about the 'Danda' and "Drat" and got the same recovered. The "Drat" was kept under the quilt on the cot which was lying in the tent and 'Danda' from the fields and also handed over his blood stained clothes. Recovery memo Ext.PW5/C was also prepared. Thereafter they went to the spot of the alleged incident and collected blood stained leaves of bamboo and the same were taken into possession vide memo Ext.PW5/D. Further, he stated that sketch-map of "Drat" was prepared and it was sealed. PW8 Kashmir Singh Rana is also another witness who had signed the said statement. On examining the "Drat" and the blood stained leaves he gave his report Ext.PW8/A on the next day. The blood on the leaves was 'O+', but neither there was blood stained of such group on the 'Danda', clothes of the accused nor it was found on the "Drat". 15. THE recovery memo Ext.PW5/C is of "Drat", which was sealed on the spot after preparing its sketch- map and taken into possession. The blood on the leaves was 'O+', but neither there was blood stained of such group on the 'Danda', clothes of the accused nor it was found on the "Drat". 15. THE recovery memo Ext.PW5/C is of "Drat", which was sealed on the spot after preparing its sketch- map and taken into possession. There is no reference with respect to the finding of blood group by PW8 Kashmir Singh Rana thereon as stated by him. Thereafter the 'Danda' as well as blood stained leaves of bamboo were recovered vide memo Ext.PW5/D and sealed with the same seal as that of "Drat". There is absolutely no reference with respect to taking of blood sample by Kashmir Singh Rana aforesaid from these articles. When once it stands sealed on the spot, the question of its blood grouping subsequently does not arise at all. Further, the blood group of the deceased was not detected on "Drat", therefore, recovery does not connect the accused with the crime. Though other circumstances raise a story of presumption, but legally presumption is hypothetical to link him with the offence charged. As such, the accused was rightly acquitted by the learned trial Court. The appeal sans merit and is accordingly dismissed. 16. THE bail bonds entered upon by the accused during the proceedings of this case shall stand discharged. Send down the records.