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2013 DIGILAW 706 (HP)

Ganga Devi v. State of Himachal Pradesh

2013-07-31

DHARAM CHAND CHAUDHARY, SURINDER SINGH

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JUDGMENT Surinder Singh, Judge. The appellant has laid challenge to her conviction and sentence passed by the learned trial Court in Sessions trial No. 53 of 2008 for the offence punishable under Section 302 Indian Penal Code. 2. Precisely, case of the prosecution has been that on 17.8.2008 at about 8.30 am Shama Devi met police party headed by PW20 ASI Madan Lal and got recorded her statement Ext. PW9/A that on the previous day, she had visited her parental place to tie rakhi to her brother PW2 Karam Chand. On 17.8.2008 at about 8.30 a.m., Karam Chand had left for his work whereas her mother Beasa Devi went towards the side of Chandesh for cutting grass. Around 11 a.m.; the complainant after freeing herself from ablatitious of her two children and herself, tried to find out Beasa Devi, who by then should have returned. While passing through the fields at Gaharu, she saw her dead body in paddy fields of her uncle Laturia Ram and noticed bleeding injuries on her head, nose and ear. On the way she had come across the appellant hereinafter referred to as ‘‘the accused” running uphill and was out of breath, but she did not exchange any conversation with her because of previous dispute which had caused bitter and inimical relations. She suspected hand of the accused in committing the crime. Her statement culminated into FIR Ext. PY. 3. Police swung into motion, visited the spot, prepared the inquest papers Ext. PW20/C and the dead body was sent for autopsy. 4. During investigation, police recovered a pair of plastic shoes Ext. P3, duppatta Ext. P4, broken necklace Ext. P11, one ear ring Ext. P13 of accused Ganga Devi and three stones having blood stains. Police investigation concluded the involvement of the accused as well as her husband Laturia Ram and Saraswti Devi. Accordingly challan against them was presented for the offence punishable under Section 302 read with Section 34 Indian Penal Code. 5. Accused persons as well as co-accused were accordingly chargesheeted for the offences aforesaid, to which they pleaded not guilty and claimed trial. 6. To prove its case, prosecution examined its witnesses. Accused persons were also examined under Section 313 of the code of Criminal Procedure. They denied their involvement in the alleged crime. 7. 5. Accused persons as well as co-accused were accordingly chargesheeted for the offences aforesaid, to which they pleaded not guilty and claimed trial. 6. To prove its case, prosecution examined its witnesses. Accused persons were also examined under Section 313 of the code of Criminal Procedure. They denied their involvement in the alleged crime. 7. At the end of the trial, Laturia Ram and Sarawati Devi co-accused were acquitted whereas accused/appellant was convicted and sentenced under Section 302 Indian Penal Code for causing murder of Beasa Devi on the basis of circumstantial evidence. The circumstances to which the prosecution evidence put forth are:- (i) Inimical relations between accused and the deceased; (ii) Accused Ganga Devi who was seen running towards home immediately afterthe occurrence from nearby fields established that she was present at the place of occurrence; (iii) One ear ring of accused Ganga Devi was recovered from the place of occurrence; (iv) Ear ring was identified by her before the Naib Tehsildar; (v) Accused Ganga Devi was absconding from the place after the alleged incident. 8. The above circumstances in the opinion of the learned trial Court stood proved. 9. Shri Vinay Thakur, learned counsel for the accused forcefully argued that the learned trial Judge had gone wrong in convicting the accused as the evidence of the prosecution is discrepant, partisan and totally insufficient to prove the case against her. It is also argued that enmity inter se the parties though stands proved but it is a double edged weapon which could equally be a motive to falsely implicate the accused. It is also argued that there was no immediate occasion to take any revenge to kill the deceased. Further that the recovery of the ear ring is farce. The identification by the accused is wrong, even the evidence to that effect is contradictory.The manner in which identification was got conducted is unheard of. It is also revealed that a normal man will gasp for breath when he/she is climbing uphill sharp. She was found going to village from nearby the place of occurrence, is not unnatural. No weapon of offence was recovered on the spot or on the information given by the accused. The learned trial court did not properly sift the evidence on record which caused miscarriage of justice to the accused. 10. She was found going to village from nearby the place of occurrence, is not unnatural. No weapon of offence was recovered on the spot or on the information given by the accused. The learned trial court did not properly sift the evidence on record which caused miscarriage of justice to the accused. 10. On the other hand, Shri D.C. Pathik, learned Additional Advocate General supported the impugned judgment of conviction and sentence. According to him, the circumstances put forth were duly proved which were of conclusive nature and tendency. 11. We have given ourthoughtful consideration to the rival contention of the parties and have carefully and meticulously examined the evidence on record. 12. Admittedly, there is no direct evidence in the instant case. It is seemly to state that the whole case of prosecution rests on the circumstantial evidence. The learned trial Court has referred to the above circumstances. It is well settled that when a case totally hinges on the circumstantial e vidence, the Court has to see that the circumstances which lead towards the guilt of the accused have been fully established and they must lead to only and the only conclusion that the accused is guilty of the offence and rule out the probabilities which are likely to allow the presumption of innocence of the accused. 13. In Hanumant Govind Nargundkar vs. State of M.P. [ AIR 1952 SC 343 ] the apex Court had laid down the principles as under:- “It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” 14.In Sharad Birdhichand Sarda v. State of Maharashtra, [ (1984) 4 SCC 116 ] the five golden principles which have been stated to constitute the panchsheel of the proof of the case based on circumstantial evidence are: (i) the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely ‘may be’ fully established, (ii) the 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, (iii) the circumstances should be of a conclusive nature and tendency, (iv) they should exclude every possible hypothesis except the one to be proved, and (v) there must be a chain of evidence so 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. 15.In C. Chenga Reddy and others v. State of A.P., [JT 1996 (6) SC397] it has been held that in a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. 16.The aforesaid principles have been consistently reiterated till date also by the apex Court and also in the recent judgment in Rumi Bora Dutta vs. State of Assam JT 2013 (9) SC 296. 17.Keeping in view the aforesaid settled principles, each of the circumstances referred to above needs reappraisal. 16.The aforesaid principles have been consistently reiterated till date also by the apex Court and also in the recent judgment in Rumi Bora Dutta vs. State of Assam JT 2013 (9) SC 296. 17.Keeping in view the aforesaid settled principles, each of the circumstances referred to above needs reappraisal. CIRCUMSTANCE NO.-I. 18.PW2 Karam Chand is the son of Beasa Devi deceased who had been living with his mother. Admittedly on 16.8.2008 complainant Shama Devi had visited his house on the occasion of Rakhi. Next morning he had left for his work leaving behind her mother Beasa Devi along with his two children. Later on he got a telephonic message about the death of his mother, reached home and informed the police. He further stated that his uncle Khyali Ram and Laturia Ram got property of his grand father entered in their name. His father Mohan Lal and Taya did not get any property because of some alleged fraud played by Laturia Ram and Khyali Ram. His father was allotted 5 bighas Nautor and accused persons had been raising dispute over that and used to cut grass from the said land which was adjacent to the land of Laturia Ram. Every year they used to raise the dispute. Accordingly he and deceased mother had filed proceedings before the SDM and also reported the matter to the police. He placed on record the applications Ext. PW2/C to Ext.PW2/F which were taken into possession by the police during investigation of this case. In cross- examination, he also alleged that he was married in the year 1995 and his wife was living in her parental home because of the conduct of accused Ganga Devi as she allegedly did not allow her to settle with him. He denied in cross-examination that since they were having inimical relations with the accused and had suspected that the accused has killed his mother. PW13 Gian Chand also substantiated this fact that parties used to quarrel on the trivial matters pertaining to the land and had other family disputes, as such their relations were strained. There is no further cross examination qua the previous complaints, as stated by PW2 aforesaid. Even in her statement, complainant also alleged that their relations with the accused were not cordial. Thus, it stands proved that accused and the complainants were not pulling up well and had inimical relations between them. There is no further cross examination qua the previous complaints, as stated by PW2 aforesaid. Even in her statement, complainant also alleged that their relations with the accused were not cordial. Thus, it stands proved that accused and the complainants were not pulling up well and had inimical relations between them. There were various complaints like Ext. PW1 7/C under Sections 107 and 150 of the Code of Criminal Procedure against both the parties and also cross cases in terms of FIR Nos. 99/97, 77/81 and 78/8 1 Ext. PW1 7/D, to Ext. PW1 7/F proved by PW1 7 H.C. Prakaram Singh which fact went un-rebutted. Therefore, the inimical relations between the accused and deceased stands established, hence proved. CIRCUMSTANCE NO.II. 19.PW9 Shama Devi had made statement Ext. PW9/A under Section 154 of the Code of Criminal Procedure at 3 p.m. on 17.8.2008 to ASI Madan Lal wherein she had made reference that she came across the accused while searching for her mother running uphill, out of breath which raised suspicion. In the opinion of the learned trial Court, this circumstance was significant as on or about the time when Beasa Devi was found murdered in the paddy field of husband of the accused. It was not a field but a grassy land where she had gone to cut the grass, in that event, how she could have reached the paddy field of the accused where she was found dead, it remained unexplained. The learned trial Court also observed that as per site plan Ext. PW20/G, grass was cut from grassy land and there was no indication that deceased had cut the grass in the field of the accused. On reappraisal we do not find anything on record to conclude as to what was the immediate cause to take revenge by accused to commit murder of Beasa Devi. This circumstance even if taken as proved, has no positive importance and cannot also be called a towering circumstance against the accused. However, it has not come in the evidence that accused had tried to escape on having noticed by the complainant or that her accomplices, i.e., Laturia and Sarswati were also seen running from the spot and what was the distance of the bridal path from where she was found climbing up, from the place where the dead body was found. However, it has not come in the evidence that accused had tried to escape on having noticed by the complainant or that her accomplices, i.e., Laturia and Sarswati were also seen running from the spot and what was the distance of the bridal path from where she was found climbing up, from the place where the dead body was found. In her supplementary statement to the police, the complainant had tried to exaggerate the incident by implicating other accused persons which is contrary to her initial statement Ext. PW9/A. There can be another hypothesis that on seeing the dead body, accused might have got perplexed and scared and tried to keep away and preserve herself from being wrongly implicated. Thus, this circumstance is not of conclusive nature and tendency and is not consistent with the hypothesis of the guilt of the accused. CIRCUMSTANCES NO. III &IV. 20. According to prosecution case, one of the ear rings Ext. P13 which was recovered from the spot was that of the accused, connecting her with the alleged offence. It is PW20 ASI Madan lal who is alleged to have recovered the aforesaid ear ring from the spot. The identification was got done in the presence of PW14 Devi Chand by ASI Madan lal from accused Ganga Devi. This shows that the police had gone with the presumption that ear ring pertained to accused Ganga Devi without the recovery of another ring from the accused to match it. Further, the Naib Tehsildar before whom this ear ring was got identified, has also not got it mixed with similar type of ear rings. He also stated that he did not mention in his report that Ganga Devi had voluntarily made such statement about the identification without pressure from the police and even no specific identification mark was mentioned by the accused that it was her own ear ring. The suggestion at the tale-end of his cross examination was made to ASI Madan Lal that this ear ring was planted to which he denied. It is pertinent to note that neither site plan of the alleged incident Ext. PW20/A does show the place of recovery of the ear ring nor it finds mention in the inquest papers. There is only the recovery memo Ext. It is pertinent to note that neither site plan of the alleged incident Ext. PW20/A does show the place of recovery of the ear ring nor it finds mention in the inquest papers. There is only the recovery memo Ext. PW2/A which, inter alia, shows the recovery of the silver ear ring from the spot along with other articles in the presence of PW2 Karam Chand, including a necklace. Interestingly, Karam Chand stated that the dead body of his mother was lying in the field of his uncle Laturia Ram and her one shoe, one dupatta three rakhi threads, white necklace, one ear ring were found scattered in the field. In other words, this ear ring which was recovered from the spot was that of his mother. Therefore, in view of the above evidence, these circumstances cannot be said to have been proved. Further, the evidence qua identification of ear ring by the accused is hit by Article 20 (3) of the Constitution of India because at the relevant time accused was in the custody of police. She never requested to identify the ear ring. It was at the behest of ASI Madan Lal, she was produced before the Executive Magistrate. Thus, she was compelled to do volitional Act by compelling her to become a witness against herself. CIRCUMSTANCE NO-V. 21. Though investigating Officer stated that Ganga Devi accused was arrested next day of the alleged occurrence, yet she is stated to have disappeared from the spot, is absolutely wrong and of no consequence as she had been found at her own residence from where she was arrested. Therefore, her abscondance is not proved nor it can be said to be of conclusive nature and tendency. 22. The next circumstance which the learned Additional Advocate General pressed into service is presence of Gumbar grass found on the wearing apparels of the deceased, as shown in the forensic science reports. Since deceased had the fields adjacent to the place where the dead body was found, the Gumbar grass found on wearing apparels in no way connects with the alleged offence because it is real but natural that farmers get such type of wild grass stuck up with their clothes when they cross through grassy lands or the shortcuts. Therefore, this is no circumstance to raise even a doubt that she was present at the place of incident. Therefore, this is no circumstance to raise even a doubt that she was present at the place of incident. 23.On examining the aforesaid circumstance on the touch stone of the above principles laid down by the apex Court, we do not find that circumstances No III, IV and V are fully and conclusively established nor these are consistent only with the hypothesis of guilt of the accused. Further, these circumstances are not of conclusive nature and tendency. The chain of evidence is also not complete so as to leave any reasonable ground for the conclusion, consistent with the innocence of the accused. Further, it does not show that in all human probabilities that murder of Beasa Devi must have been committed by the accused. Though the prosecution was able to prove previous enmity inter se the parties only to raise strong suspicion against the accused that while going uphill she felt breathless but it is equally settled that suspicion howsoever strong cannot take the place of proof. 24.As such, in our considered opinion, the prosecution has failed to prove the case against the accused beyond reasonable doubt. Thus, the appeal filed by the convict is allowed and the judgment of conviction and sentence is set aside. Accordingly, accused is acquitted of the charge by giving her the benefit of doubt. 25. Since the sentence of the accused was suspended vide order dated 7.9.2009, her bail bonds shall stand discharged. 26.The matter stands disposed of. Send down the records.