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2013 DIGILAW 592 (HP)

STATE OF HIMACHAL PRADESH v. DAYA RAM

2013-06-24

RAJIV SHARMA, SURINDER SINGH

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JUDGMENT SURINDER SINGH, J. 1. THE respondents were charge-sheeted, tried and acquitted for the offences punishable under Sections 302 and 201 read with Section 34 of the Indian Penal Code for alleged murder of Bhuteshwar (deceased). Their acquittal has been challenged by the State in the present appeal. 2. IN short, the prosecution story can be summed up thus. PW2 Saran had three daughters Whether reporters of the Local papers are allowed to see the judgment? and two sons, namely Puran Chand and deceased Bhuteshwar. About 12 years back, he was married to PW6 Shanta Devi daughter of respondents Daya Ram and Hima Devi and sister of accused Nagnu Ram, hereinafter referred to as "the accused persons". During this wedlock, four daughters were born. It is alleged that there had been intermittent squabbles between Shanta Devi and deceased Bhuteshwar, but the disputes were smothered. However, whenever Shanta Devi visited the parental house, she was being pacified and brought back by the deceased. (ii) About 10 days prior to 'Lohri festival', in the year 2003 Shanta Devi (PW6) left for parental house because of some tiff with her husband. On 11.1.2003, deceased Bhuteshwar is alleged to have gone to take her back, wearing black coloured jacket, blue coloured trouser and sports shoes, but did not return thereafter. On this PW2 his father Saran got perturbed, made inquiries at his own level. Ultimately he went to the house of accused persons and enquired from them about his visits, but they informed that the deceased did not visit their place. Thereafter, he made search in the houses of his relatives in different villages, but it ended in fiasco. Thereafter he lodged a report about his missing, in Police Station, Gohar. (iii) Later, PW2 Saran got suspicious about the conduct of the accused persons and made a written complaint Ext.PB to the police. On 1.3.2003, PW15 Inspector K.D. Sharma reached at Pandoh to enquire into the complaint filed by Saran. (iv) PW15 aforesaid enquired from Hima Devi, thereafter requested S.D.M., Mandi and Dy.S.P. Subhra Tiwari to visit Pandoh. They reached and PW4 Naib Tehsildar S.L. Bansal was also deputed by D.C. Mandi. In their presence on 1.3.2003, accused Hima Devi is alleged to have made a disclosure statement under Section 27 of the Indian Evidence Act Ext.PD and led the police to "Barotu Nalla" and got identified the spot. Foul smell was emanating there. They reached and PW4 Naib Tehsildar S.L. Bansal was also deputed by D.C. Mandi. In their presence on 1.3.2003, accused Hima Devi is alleged to have made a disclosure statement under Section 27 of the Indian Evidence Act Ext.PD and led the police to "Barotu Nalla" and got identified the spot. Foul smell was emanating there. Since it was dark, the police officials were directed to cordon the place. (v) Next morning, i.e. on 2.3.2003 accused Hima Devi had taken them to the same place and she got recovered the dead body kept under the stones in a gunny bag. On checking gunny bag, it contained a human skeleton wearing pants, sweater, shirt, underwear and one shoe of right foot. One rexion purse was found in his pants containing Election Commission identity card of deceased Bhuteshwar, 50 rupees and one photograph of his wife (PW6 Shanta Devi). The skeleton was kept in a wooden box. The clothes and two strings lying near the spot were put into two separate parcels of clothes and sealed with seal impression 'A'. Photographs were taken and inquest papers were filled in. (vi) On 4.3.2003, accused Hima Devi got recovered her shirt Ext.P29 and Salwar Ext.P30, which were taken into possession vide memo Ext.PL. (vii) It is alleged that Daya Ram accused confessed about murdering of Bhuteshwar with axe and made a disclosure statement Ext.PC under Section 27 of the Indian Evidence Act, pursuant to which the Axe Ext.P32 was got recovered, which was sealed and sent for chemical examination. He also got recovered his shirt Ext.P26 and Pants Ext.P27 which were taken into possession vide memo Ext.PK. (viii) It is further alleged that accused Daya Ram took the police party to his house and got recovered Jacket Ext.P2, sports shoe of left foot Ext. P3 and pants which were identified by complainant to be of his son and were taken into possession vide memo Ext.PH. Thereafter, accused Daya Ram got recovered a Danda Ext.P33 from "Barotu Nalla" on which the dead-body was carried. It was taken into possession vide memo Ext.PJ. (ix) PW11 Dr. Jiwa Nand Chauhan, M.D. Forensic Science was informed by the police. The mortal remains/ skeleton were examined by him. He prepared PMR Ext.PO. Thereafter, accused Daya Ram got recovered a Danda Ext.P33 from "Barotu Nalla" on which the dead-body was carried. It was taken into possession vide memo Ext.PJ. (ix) PW11 Dr. Jiwa Nand Chauhan, M.D. Forensic Science was informed by the police. The mortal remains/ skeleton were examined by him. He prepared PMR Ext.PO. In the opinion of the doctor, it was not possible to give the exact cause of death, but from the examination, site visits and circumstantial evidence, it appeared that the deceased had died due to head injuries. Probable time that elapsed between injury and death could not be ascertained because of decomposition changes, but however, between death and the postmortem was approximately one month to two months. The injury on the skull was opined to be ante mortem in nature. The skeleton was identified by brother of the deceased, PW3 Puran Chand. (x) On 5.3.2003, accused Nagnu Ram was arrested as his complicity was also found in the alleged crime. The articles sent for forensic science laboratory were examined and the report is Ext.PX. The sweater, gunny bag and shoe of deceased Bhuteshwar contained blood stains. The Salwar of Hima Devi and Jacket were also found blood stained, but could not be grouped. Vide report Ext.PY of forensic examination, the skull on superimposition upon his photograph tallied with the dimension of the deceased. After completing investigation, the challan was presented in the Court for the trial of the accused persons. Finding a prima-facie case against them for the aforesaid offence, they were accordingly charge-sheeted to which they pleaded not guilty and claimed trial. 3. THE prosecution examined its witnesses and the accused persons were also examined under Section 313 of the Code of Criminal Procedure. They denied the circumstances, which were put to them and alleged false implication. When called upon to enter into their defence, no evidence in defence was led. 4. AFTER going through the record and appreciating the rival contentions, the learned trial Court did not find the involvement of the accused persons in the alleged crime, as such they were acquitted by giving them the benefit of doubt, hence the challenge in the present appeal by the State. 4. AFTER going through the record and appreciating the rival contentions, the learned trial Court did not find the involvement of the accused persons in the alleged crime, as such they were acquitted by giving them the benefit of doubt, hence the challenge in the present appeal by the State. Shri D.C. Pathik, learned Additional Advocate General duly assisted by Shri P.M. Negi, learned Deputy Advocate General vehemently argued that the learned trial Court did not appreciate the evidence in proper perspective, but set an unrealistic standard to evaluate the prosecution evidence. The reasoning advanced is manifestly unreasonable and unsustainable. It is also argued that the prosecution has been able to connect the accused persons with the alleged offences, but their version was wrongly brushed- aside. 5. ON the other hand, Shri G.R. Palsra, learned counsel for the accused persons supported the impugned judgment of acquittal having based upon the conclusion derived from the evidence on the record. 6. WE have given our thoughtful consideration to the rival contentions of the parties and have carefully re-appreciated and scanned the evidence closely and cautiously. Of course, there is no direct evidence in the instant case and the case hinges upon the circumstantial evidence. It is well settled that the conclusion of guilt based upon the circumstantial evidence can well be drawn from the proved circumstances on record, so as to link the accused persons with the alleged crime if it is leaving no scope for propounding any other theory than with the hypothesis of the guilt of the accused alone and these circumstances should be of a conclusive nature and tendency so as to exclude every hypothesis, but one proposed to be proved showing that within all human probability the act must have been done by the accused. 7. IT is admitted fact that PW6 Shanta Devi was married to deceased Bhuteshwar and from this wedlock, she has four daughters. She used to leave the house of her husband and reside with her parents on some trivial matter with her husband. About 8-10 days prior to 'Lohri festival', PW6 Shanta Devi is alleged to have gone to the parental house, but in the Court, she stated that she had sought the permission of her husband. She did not support the prosecution case but turned hostile. About 8-10 days prior to 'Lohri festival', PW6 Shanta Devi is alleged to have gone to the parental house, but in the Court, she stated that she had sought the permission of her husband. She did not support the prosecution case but turned hostile. According to her, her husband had come to take her back to his house and he was alive in the month of Magh. She denied any quarrel with her husband and denied having given axe blow by her accused father to the deceased and wrapping his dead body in a gunny bag and throwing it in the "Bagrotu Nalla". She also denied that Jacket Ext.P2, left shoe Ext.P3, Pants Ext.P6, Purse Ext.P10 Shirt Ext.P20, Sweater Ext.P22 and underwear Ext.P23 belong to her husband. She also denied that her husband used to keep her photograph in his purse Ext.P10, but she still had a hope that her husband is alive. 8. WHEREAS PW2 Saran stated that the deceased Bhuteshwar went missing from his house and the mortal remains which is alleged to have recovered were of Bhuteshwar his son, but in his cross-examination admitted that the accused persons had cordial relations with them and they were in visiting terms in the house of each other. Further according to him, when Bhuteshwar went missing, accused Daya Ram also accompanied him in searching him. It is pertinent to note that Exts.P1 to P4 viz. Parcel, Jacket, sports shoe of left foot and tuft of hair alleged to have been got recovered by accused Daya Ram, were stated to have been shown to him by the police in the Police Station and they told that these were recovered by them from accused Daya Ram and at that time none else except him and the police were present. This shatters the whole prosecution story qua these articles having been recovered at the instance of accused Daya Ram. This shatters the whole prosecution story qua these articles having been recovered at the instance of accused Daya Ram. Whereas, PW3 Puran Chand the son of PW2 Saran stated that Shanta Devi had gone to her parental house prior to 'Lohri festival' on account of some tiff with her husband and on 11.1.2003, his brother while leaving the house was wearing black jacket, sweater, shirt and sports shoes and further stated that accused Hima Devi while in custody of police made a disclosure statement in his presence and PW5 Pune Ram with respect to concealment of the dead-body of Bhuteshwar in "Bagrotu Nalla" by the accused persons, which was recovered from the said place alongwith danda as aforesaid. PW3 also stated that the Jacket of the deceased was also found on the spot, which was taken into possession vide memo Ext.PE, whereas it is alleged to have been produced by accused Daya Ram. In his cross- examination, he admitted that he could not identify the dead-body of his brother from the mortal remains which was recovered from the spot. He also stated that the accused persons and his deceased brother were having good terms with each other, more particularly, this witness stated in cross- examination that at the time of making the alleged disclosure statement by Hima Devi, Todar Ram Pradhan was also present and the police party was leading to the place from where the alleged recovery of skeleton was made. Even he could not identify whether the skeleton so recovered was of a human being. Further PW5 Pune Ram and PW2 Saran were also the witnesses to the disclosure statement made by accused Daya Ram with respect to the axe vide Ext.PC, pursuant to which, he is alleged to have recovered axe from underneath the Cot and it was taken into possession by the police. Thereafter, according to PW5 Pune Ram accused Daya Ram and Hima Devi led them to a field, from where one Jacket and Shoe of left foot were recovered and taken into possession vide memo Ext.PH and then took them to "Nalla" from where Danda was recovered and taken into possession vide memo Ext.PJ, besides handing over their own wearing apparels to the police. In cross-examination, he stated that when accused Daya Ram and Hima Devi went inside the room, others were outside near the door and all articles were lying in the room in the open. All other recoveries alleged to have been made except axe is not pursuant to disclosure statement. 9. FURTHER, PW12 ASI Paras Ram also stated that on the recovery of skeleton, it was not possible to identify the dead-body. 10. THE disclosure statement of Hima Devi is dated 1.3.2003. FIR Ext.PW13/A was registered on 1.3.2003 at 6 p.m. The distance of Police Station is 17 K.M. The complaint of PW2 Saran is dated 25.2.2003. Before registration of the case, PW15 Inspector K.D. Sharma reached the spot and started enquiry and interrogation of accused Hima Devi. He did not state as who was present at that time. But then requested the SDM Mandi and Dy.S.P. Subhra Tiwari and others to visit the spot and alleged to have got recorded the statement Ext.PD of accused Hima Devi under Section 27 of the Indian Evidence Act. At that time, Hima Devi was neither accused of any offence nor under the custody of the police, which is sine-quo- non for attracting the provisions of Section aforesaid, lest it is inadmissible in evidence. Nothing has been brought in the statement of PW15 Inspector K.D. Sharma as to when accused Hima Devi was arrested. But however, PW4 Shiv Lal Bansal sated that accused Hima Devi was being interrogated in the Police Post Pandoh and at that time, Todar Ram Pradhan and PW5 Pune Ram both were present, but said Pune Ram has not been cited as a witness in Ext.PD. In cross-examination, he stated that he did not know whether the accused were involved in the instant case and he also admitted that the police was leading to the spot from where the alleged recovery of skeleton was made. 11. EVEN another marginal witness PW3 Puran Chand did not say whether accused Hima Devi was an accused of an offence or under the surveillance of the police when she is alleged to have made the aforesaid statement. He also did not say anything about the presence of Todar Ram and Shiv Lal Bansal when accused Hima Devi is alleged to have made a disclosure statement, but he did name Pune Ram, who was not cited as a witness in the said statement. He also did not say anything about the presence of Todar Ram and Shiv Lal Bansal when accused Hima Devi is alleged to have made a disclosure statement, but he did name Pune Ram, who was not cited as a witness in the said statement. Therefore, in these circumstances, the alleged disclosure statement and the recovery pursuant to it is absolutely doubtful. 12. THE next circumstance is the recovery of left shoe alleged to have been made by accused Daya Ram pursuant to his statement Ext.PC. PW13 SI Mangat Ram is stated to have recorded this statement in the presence of PW5 Pune Ram and PW2 Saran at about 10 p.m. on 2.3.2003. It is in the form of a confessional statement, which is inadmissible in evidence and further one shoe was alleged to have been kept hidden by him outside besides the path to which he could recover. This statement appears to have been only recorded just to link the accused with alleged shoe of the deceased as the recovery of one of the shoes was already effected on the spot before that PW2 Saran stated that the second shoe was found in the field. Therefore, this statement Ext.PC appears to have been prepared to link the accused with this circumstance, whereas PW6 Shanta Devi has denied that the shoe aforesaid belongs to her husband. Further it is not understood when accused Daya Ram was being interrogated on 3.3.2003, then on the same day, he could have also made the statement and effected the recovery of axe, but according to the prosecution story on 4.3.2003, accused Daya Ram got recovered axe Ex.P32 from his residence, regarding which there is no disclosure statement and mere production is of no consequence. Even otherwise, the axe is not linked with the alleged offence, nor itwas found to be blood stained. 13. FURTHER, the alleged incident had taken place 1 1/2 months ago from the date of recovery of the skeleton. According to PW2 Saran, all these articles lying in the room were open which beats human imagination as to why the alleged offensive exhibits were kept in the room for such a long time, which is not plausible. 14. THE alleged blood stains on the wearing apparels of accused Hima Devi are also not linked with the group of the deceased. There is absolutely nothing incriminating against accused Nagnu Ram. 14. THE alleged blood stains on the wearing apparels of accused Hima Devi are also not linked with the group of the deceased. There is absolutely nothing incriminating against accused Nagnu Ram. On scrutiny, we find that all the recoveries aforesaid, are nothing but a farce. The deceased was also not seen in and around the house of the accused persons on 11.1.2003 or immediately thereafter. According to PW10 Rajni to whom the deceased Bhuteshwar met her at 6 p.m. in her shop, he was to go to the house of accused persons after purchasing some Karyana items, but in cross-examination she stated that the bus leaves to the house of the accused persons around 5 p.m. and there is no bus service thereafter and even she did not see boarding him in the bus. The distance between the house of the deceased and accused is only 5 k.m. There is absolutely no evidence on record what mode he adopted to reach the house of his in-laws or that he even visited them. 15. THE relations of the deceased and the accused persons were admittedly cordial. There were small skirmishes only inter-se Shanta Devi and deceased her husband and even such things have been denied by PW6 Shanta Devi. There is also no evidence on record that the deceased had been forcibly taking Shanta Devi to his house on which the respondents were trying to intervene and caused the murder of the deceased. Even earlier also the accused never resisted the deceased when he took his wife with him and these also did not appear any occasion for raising any objection. 16. IT is also not established that the mortal remains were that of Bhuteshwar. Only forensic opinion is there that the skull structure synchronizes with the photograph of the deceased. Even PW11 Dr. Jiwa Nand Chauhan could not give probable time of injury and the death because of decomposition of the recovered articles. Thus, in the totality of aforesaid circumstances, the acquittal of the accused persons cannot be converted into conviction, as these circumstances put-forth are not of conclusive nature and tendency. 17. THEREFORE, we do not find that the findings of acquittal dehors the evidence, accordingly, the appeal is without any merits, hence dismissed. 18. THE respondents are discharged of their bail bonds entered upon by them during the proceedings of the case. 22. Send down the records. 17. THEREFORE, we do not find that the findings of acquittal dehors the evidence, accordingly, the appeal is without any merits, hence dismissed. 18. THE respondents are discharged of their bail bonds entered upon by them during the proceedings of the case. 22. Send down the records. Appeal dismissed.