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2016 DIGILAW 1845 (HP)

State of Himachal Pradesh v. Rayia Urav @ Ajay

2016-09-01

DHARAM CHAND CHAUDHARY, VIVEK SINGH THAKUR

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JUDGMENT : Dharam Chand Chaudhary, J. The State of Himachal Pradesh is in appeal before this Court. The complaint is that learned Additional Sessions Judge, Fast Track Court, Kullu vide judgment dated 28.06.2012 passed in Session Trial No. 37 of 2011 has acquitted the respondent (hereinafter referred to as the ‘accused’) of the charge under Section 302 and 201 of the Indian Penal Code in utter disregard to the cogent and reliable evidence produced by the prosecution to bring guilt home to the accused. The impugned judgment has thus been sought to be quashed and set aside and the accused convicted of the charge framed against him. 2. The prosecution case, as disclosed from the record in a nut-shell is that Vineet Kumar is owner of the house situate at village Tegubehar under the jurisdiction of Police Station, Bhunter, District Kullu. The accused had taken second floor of the said house on rent from PW-1 and started living there with his family. On 16.06.2011, another tenant Sheela Devi informed the complainant that number of houseflies are seen in the room rented out to the accused and room is also emitting foul smell. On this information, PW-1 who is residing in his house situated nearby came to the room which was rented out to the accused. He found the room bolted from outside and lock hanging on the bolt. He called Karam Chand (PW-2), Pradhan of local Gram Panchayat to the spot. When they opened the door, noticed clothes and beddings scattered on the floor. When they removed the clothes and beddings, they found a dead body lying on the floor beneath a mattress. PW-1 identified the dead body to be that of the wife of accused. On the same day, PW-1 informed the police of Police Station, Bhunter. His statement under Section 154 of the Code of Criminal Procedure was recorded by PW-7 Sub Inspector Narian Singh. On the basis thereof, FIR Ext. PW-1/A was registered in police station. After registration of the case, PW-1 rushed to the spot along with other police staff in official vehicle. PW-7 also opened the room taken on rent by the accused in presence of PW-2 Karam Chand, Pradhan of Gram Panchayat. The room was emitting foul smell. PW-7 photographed the dead body vide photographs Ext. P-1 to Ext. P-13 with official camera. After registration of the case, PW-1 rushed to the spot along with other police staff in official vehicle. PW-7 also opened the room taken on rent by the accused in presence of PW-2 Karam Chand, Pradhan of Gram Panchayat. The room was emitting foul smell. PW-7 photographed the dead body vide photographs Ext. P-1 to Ext. P-13 with official camera. He inspected the dead body and noticed that muggates were found on the head and whole dead body. There was mark of deep injuries on the head and right arm of deceased. The dead body was identified by the complainant and the Pradhan to be that of Anita Devi, the wife of accused. PW-7 has prepared the inquest report Ext. PW-7/A. He has also prepared the spot map Ext. PW-7/B on 16.06.2011 itself. He moved application Ext.PW-3/B for getting the post-mortem of the dead body conducted. The dead body was sent to the hospital under the supervision of Lady Constable Chandra Devi and Constable Sandeep Kumar for postmortem. The post-mortem was conducted by PW-3 Dr. Rajesh Thakur on 17.06.2011. He issued the post-mortem report Ext. PW-3/A. In his opinion, the cause of death was head injury and probable period of death and postmortem was more than five days. In his opinion, the injury found on the skull of the deceased could have been caused with a ‘Darat’. 3. On 17.06.2011, accused came to Tegubehar. One of the companions informed the Pradhan that accused has come back to Tegubehar. The Pradhan (PW-2), in turn has informed the police that accused had come back along with his son to Tegubehar. The accused was taken to Police Station by PW-7 and he was interrogated. While in custody, accused allegedly made a disclosure statement that after committing the murder of his wife, he had thrown the weapon of offence in river ‘Beas’. The accused was arrested vide memo Ext. PW-7/A. The accused was taken to dead house in the hospital in the presence of PW-1, PW-2 and Chhering Dorje, Up-Pradhan of the Gram Panchayat. He had identified the dead-body to be that of his wife Anita Devi in the presence of doctor. He made another disclosure statement Ext. The accused was arrested vide memo Ext. PW-7/A. The accused was taken to dead house in the hospital in the presence of PW-1, PW-2 and Chhering Dorje, Up-Pradhan of the Gram Panchayat. He had identified the dead-body to be that of his wife Anita Devi in the presence of doctor. He made another disclosure statement Ext. PW-1/B while in police custody in the presence of Cheering Dorje before the I.O. PW-7 that he had hidden the blood stained shirt, which he was wearing at the time of commission of offence and that it is only he, who alone can get the same recovered. The shirt Ext. P-2 was allegedly got recovered at the instance of accused and the same was taken into possession vide memo Ext. PW-1/C. The same was sealed in a parcel and taken into possession and sample seal Ext. PW-7/E was prepared separately. The spot map Ext. PW7/D of the place of recovery was also prepared. 4. On 17.06.2011, the case property was deposited by PW-7 with PW-6 Moherer Head Constable, Police Station, Bhunter vide entries Ext. PW-6/A in the malkhana register. On 21.06.2011, LHC Jinesh Kumar (PW-5) had deposited one vial containing blood sample of deceased Anita and one envelop sealed with seal CH addressed to RFSL, Gutkar, one parcel sealed with seal CH allegedly containing the clothes of deceased with MHC (PW6). PW-6 has entered the case property in the malkhana register, the extract whereof is Ext. PW-6/B. On 22.06.2011, the case property was sent by PW-6 through LHC Jinesh Kumar (PW-5) vide RC No. 117/11 to RFSL, however, the same was not received because sample of seal used by the doctor was not sent therewith, hence retuned to PW-5. PW-5 came to RH, Kullu and handed over the case property to the doctor PW-3. PW-3 has drawn the sample of seal he used and the same was handed over to PW-5. PW-5 had again deposited the case property in the malkhana as per entries Ext. PW- 6/C. PW-6 has again handed over the case property to LC Lata Devi(PW-4) vide RC Ext. PW-6/D and docket Ext. PW-6/E. She was directed to deposit the same in the laboratory at Gutkar. PW-4 has deposited the case property in the laboratory and handed over the receipt to PW-6 on her return to the police station. PW- 6/C. PW-6 has again handed over the case property to LC Lata Devi(PW-4) vide RC Ext. PW-6/D and docket Ext. PW-6/E. She was directed to deposit the same in the laboratory at Gutkar. PW-4 has deposited the case property in the laboratory and handed over the receipt to PW-6 on her return to the police station. The dead body was handed over to Municipal Committee for cremation vide receipt Ext. PW-7/F. The minor son of the accused was handed over to Kullu-Manali Charitable Trust as per receipt Ext. PW-7/G. The statements of witnesses were recorded as per their version. The report of chemical examiner Ext. P-X was received. As per the same, human blood of group ‘B’ was found in the blood sample of deceased and the shirt of the accused. It is thereafter challan was prepared by PW-7 and presented in the Court. 5. Learned trial Judge on being satisfied that a case for the commission of offence under Sections 302 and 201 of the Indian Penal Code is prima-facie made out against the accused framed charge against him accordingly. The accused, however, not pleaded guilty to the charge. The prosecution has, therefore, examined seven witnesses in all in order to sustain the charge against the accused. The complainant is PW-1 Vineet Kumar, whereas, Karam Chand is the Pradhan of Gram Panchayat, Tegubehar. As a matter of fact, they both are the star prosecution witnesses. The remaining prosecution witnesses are doctor Rajesh Thakur (PW-3), who had conducted the autopsy on the dead body of the deceased. The remaining witnesses are police officials i.e. Lady Constable Lata Devi (PW-4), LHC Jinesh Kumar (PW-5), HC Tara Chand (PW-6) and SI Narian Singh, (PW-7), the SHO of Police Station, who has conducted the investigation of this case. The accused was also examined under Section 313 of the Code of Criminal Procedure, however, opted for not leading any defence evidence. 6. Learned trial Judge on appreciation of the evidence available on record and hearing learned Public Prosecutor as well as learned defence counsel has arrived at a conclusion that the prosecution has failed to bring guilt home to the accused with the help of cogent and reliable evidence. He has, therefore, been acquitted of the charge framed against him. 7. 6. Learned trial Judge on appreciation of the evidence available on record and hearing learned Public Prosecutor as well as learned defence counsel has arrived at a conclusion that the prosecution has failed to bring guilt home to the accused with the help of cogent and reliable evidence. He has, therefore, been acquitted of the charge framed against him. 7. The legality and validity of the impugned judgment has been questioned on the grounds inter-alia that the evidence available on record has been appreciated in a slip shod and perfunctory manner. The reasoning given by learned trial Judge while acquitting the accused is manifestly unsustainable as there was no occasion to the trial Court to have discarded the cogent and reliable evidence produced by the prosecution on all material aspects of its case. The testimony of the prosecution witnesses is stated to be discarded for untenable reasons, particularly when there was no enmity of the prosecution witnesses with the accused. It has further been pointed that deceased Anita Devi was the wife of the accused. She was found dead in the house of the accused who was absconding after the occurrence leads to the only conclusion that it is he who has murdered her. No explanation is forth-coming as to why the accused has absconded and as being her husband he resided lastly with her, therefore, there is strong circumstance to connect him with the commission of the offence. The recovery of the blood stained shirt of the accused at his instance and the blood of the same group as that of deceased available thereon during the scientific investigation conducted in the matter is also stated to be erroneously ignored by learned trial Court. It has, therefore, been claimed that learned trial Judge has based the impugned judgment on conjecture, surmises and hypothesis. The same has, therefore, been sought to be quashed and set aside and the accused convicted. 8. Learned Additional Advocate General has argued with all vehemence that incriminating circumstances appearing in the prosecution case against the accused lead to the only conclusion that it is he who has murdered his wife, the deceased. It has, therefore, been urged that learned trial Judge has not appreciated the evidence available on record in its right perspective and has erroneously acquitted the accused of the charge. 9. It has, therefore, been urged that learned trial Judge has not appreciated the evidence available on record in its right perspective and has erroneously acquitted the accused of the charge. 9. Learned defence counsel while repelling the arguments addressed on behalf of the appellant-State has urged that what to speak of cogent and reliable evidence, the present is a case of no evidence and as such, the accused according to him, has rightly been acquitted of the charge. Learned defence counsel has pointed out that there is no evidence to show that deceased was the wife of accused. One Suresh resident of Jharkhand was living with the deceased as her husband and this aspect of the matter came to the notice of the police during the course of investigation. However, said Suresh was not interrogated, and to the contrary, the accused has been implicated falsely in this case. 10. As noticed supra, there is no eye-witness of the occurrence and as such, the present case hinges upon the circumstantial evidence. In such like cases, as per the settled proposition of law, the chain of circumstances appearing on record should be complete in all respects so as to lead to the only conclusion that it is accused alone who has committed the offence. The conditions necessary in order to enable the court to record the findings of conviction against an offender on the basis of circumstantial evidence have been detailed in a judgment of this Court in Devinder Singh V. State of H.P. 1990 (1) Shim.L.C. 82 which reads as under:- “1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. 2. 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 guilt. 3. The circumstances should be of a 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 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. 11. 4. They should exclude every possible hypothesis except the one to be proved AND 5. 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. 11. It has also been held by the Hon’ble Apex Court in Akhilesh Halam V. State of Bihar 1995 Suppl.(3) S.C.C. 357 that the prosecution is not only required to prove each and every circumstance as relied upon against the accused, but also that the chain of evidence furnished by those circumstances must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The relevant portion of this judgment is reproduced here-as-under:- “……It may be stated that the standard of proof required to convict a person on circumstantial evidence is now settled by a serious of pronouncements of this Court. According to the standard enunciated by this court the circumstances relied upon by the prosecution in support of the case must not only by fully established but the chain of evidence furnished by those circumstances must be so complete as not to leave any reasonable ground for as conclusion consistent with the innocence of the accused. The circumstances from which the conclusion of the guilt of an accused is to be inferred, should be conclusive nature and consistent only with the hypothesis of the guilt of the accused and the same should not be capable of being explained by any other hypothesis, except the guilt of the accused and when all the circumstances cumulatively taken together lead to the only irresistible conclusion that the accused is the perpetrator of the crime.” 12. The guilt or innocence of the accused has to be determined in the light of the parameters laid down in the case law cited supra as well as the evidence available on record. In the case in hand, the oral as well as documentary evidence speaks about the following circumstances relied upon by the prosecution to establish the guilt of the accused:- (i) Deceased Anita Devi was the wife of accused. One male issue was born to them out of this wedlock and the accused was residing in a room taken on rent from PW-1 Vineet Kumar at Tegubehar. One male issue was born to them out of this wedlock and the accused was residing in a room taken on rent from PW-1 Vineet Kumar at Tegubehar. (ii) The dead body of Anita was found lying in the room when opened by PW-1 accompanied by PW-3, Pradhan of local Gram Panchayat on an information given Sheela Devi, another tenant that foul smell is emitting from the rooms and the houseflies are also flying in large number. (iii) The accused was absconding from the house who was brought by one of his companions to PW-3 Karam Chand, Pradhan of Gram Panchayat and PW-3 handed over the accused to the police. (iv) The disclosure statement made by the accused while in custody that he had thrown the weapon of offence i.e. Darat in river ‘Beas’ (v) The disclosure statement Ext. PW-1/B made by the accused qua he having hided the blood stained shirt worn by him at the time when he killed the deceased and the recovery thereof vide memo Ext. PW-1/C. 13. It is now to be seen in the light of the evidence available on record as to whether chain of circumstances as appearing in the prosecution evidence and pressed in service against the accused is so complete as not to leave any reasonable ground for the conclusion consistent with his innocence and show in all probability that it is the accused alone who has murdered his wife, deceased Anita. 14. If coming to the first circumstance pressed in service by the prosecution against the accused, true it is that PW-1, the complainant has told deceased Anita to be the wife of accused in relation in his statement recorded by the police. However, in his cross-examination it is stated by him that he had not checked in the record that accused and deceased were husband and wife in relation. The prosecution has also not made an effort to investigate the case from this point of view that the deceased was legally wedded wife of the accused or not. Had the inquiry been got made in this regard at the native place of the accused or from the local Gram Panchayat or at the place of the deceased, the actual and factual position qua this aspect of the matter would have surfaced on record. Therefore, version of PW-1 in the FIR Ext. Had the inquiry been got made in this regard at the native place of the accused or from the local Gram Panchayat or at the place of the deceased, the actual and factual position qua this aspect of the matter would have surfaced on record. Therefore, version of PW-1 in the FIR Ext. PW-1/A that accused was residing in the room taken on rent from this witness with his wife, the deceased, is not sufficient to discharge the onus qua this aspect of the matter upon the prosecution, that too, when the suggestion put to the I.O PW-7 in his cross-examination that during the investigation it transpired that one Suresh of Jharkhand was residing with the deceased in the capacity of her husband, casts a major dent in the prosecution story. Therefore, it is difficult for us to infer that deceased was legally wedded wife of the accused. 15. If coming to the prosecution story that the deceased had given birth to a son out of her wedlock with the accused, again cogent and reliable evidence is missing for the reason that no evidence qua parentage of the child so born to the accused and deceased has been collected by the investigating agency during the course of investigation. The age of the male child is also doubtful because as per testimony of PW-1, the complainant was 6-7 years old, whereas, as per version of the I.O. PW-7, in his cross-examination, the age of their son was 2½ years at that time. Therefore, it is also difficult to believe that a male child was born to the accused and deceased out of their wedlock. Similarly, besides the statement of PW-1, there is again no evidence cogent and reliable to show that it is the accused who had taken a room on rent from the said witness. PW-2 Karam Chand though is Pradhan of local Gram Panchayat, however, he has also not said that it is the accused who had taken the room on rent from PW-1. As per his version, rather one of the companions of accused had brought the accused to him and told that he is the person who has committed the murder of his wife and that he had now returned. As per his version, rather one of the companions of accused had brought the accused to him and told that he is the person who has committed the murder of his wife and that he had now returned. Therefore, the first circumstance pressed in service by the prosecution against the accused is not at all proved, hence is hardly of any help to the prosecution case. 16. The 2nd circumstance as pressed in service by the prosecution carry substance, because Sheela Devi informed PW-1 about the foul smell emitting from one of the rooms and houseflies in large number are also flying. The said witness has called PW-2, Pradhan of Gram Panchayat to the spot and found dead body of Anita covered under a mattress and clothes scattered on the floor. The dead body was photographed by the police vide photographs Ext. P-1 to Ext. P-13 in the room itself. It is, however, not proved that deceased was none else but the wife of the accused. Therefore, lying her dead body in the room also does not connect the accused with the commission of the offence. 17. The next circumstance pressed in service is abscondance of the accused form the scene of occurrence. Question of abscondance would have arisen had he been lastly seen in the company of the deceased in the rented accommodation. No evidence qua this aspect of the matter is forth-coming. The prosecution has made an effort to make out a case that the accused after the commission of offence had left Tegubehar and went to his native place at Jharkhand with his minor son. Had he been absconded as alleged by the prosecution, there was no question of his coming back to Tegubehar, that too only after 4-5 days. It is not known as to when Anita was murdered in the room. According to the doctor PW-3, probable duration between death and post-mortem was more than 5 days. If it was not 5 days or more than that, it was not expected from the accused to have come back from his native place, that too, in such a short span of time, had he been absconded after the commission of offence. When there is no evidence that he was lastly seen in the company of deceased, there was no question of his abscondance from the scene of occurrence. When there is no evidence that he was lastly seen in the company of deceased, there was no question of his abscondance from the scene of occurrence. Therefore, this circumstance is also of no help to the prosecution case. 18. The forth circumstance pressed in service is the disclosure statement allegedly made by the accused while in custody that he has thrown darat used for the commission of offence in river ‘Beas’. Such statement has, however, not been taken down in writing. The prosecution has failed to explain as to why statement, if any, made by the accused was not reduced into writing by the I.O. PW-1 remained associated in the investigation of the case. He, however, has not said anywhere that the disclosure qua throwing of darat by the accused in river ‘Beas’ was made by the accused before the police while in custody. A suggestion given to PW-2 that accused told him qua throwing of darat he used in the commission of offence in river ‘Beas’ was not answered by the said witness at the pretext that he did not remember any such disclosure having been made before him by the accused. Therefore, sole testimony of the I.O. PW-7 that the accused disclosed during his interrogation qua he having thrown ‘darat’ in river ‘Beas’ cannot be believed to be true. As a matter of fact, had any such disclosure statement been made by the accused, the same would have reduced into writing in the presence of the witnesses. Therefore, it cannot be said by any stretch of imagination that accused has made disclosure statement qua throwing of darat he used to murder Anita, in river ‘Beas’. 19. The last circumstance is the recovery of blood stained shirt, Ext. P-2. As a matter of fact, it is this piece of evidence, which has been vehemently relied upon by the prosecution against the accused. Be it stated that the statement Ext. PW-1/B was made by the accused in the presence of PW-1 and one Cheering Dorje. Chering Dorje has not been examined, whereas, as per testimony of PW-1 in his examination-in-chief, the disclosure statement Ext. PW-1/B was made by the accused before the police and on the basis thereof, blood stained shirt was recovered from the bushes. However, when cross-examined, he has stated that no disclosure statement was made by the accused before the police in his presence. PW-1/B was made by the accused before the police and on the basis thereof, blood stained shirt was recovered from the bushes. However, when cross-examined, he has stated that no disclosure statement was made by the accused before the police in his presence. Such statement, according to him, was recorded in the police station. He was called to police station and told that accused wanted to effect some recovery. Chering Dorje and Karam Chand were also called there. He admits that many bushes were in existence in and around his house and up to the place from where shirt was recovered. Also that a common path was abutting such bushes from where recovery was made. If PW-2 Karam Chand was also called to the police station to witness the recovery of shirt, it is not understandable as to why any question is put to him by the prosecution in this regard while in the witness box. Interestingly enough, the body of the document Ext. PW- 1/B reveals that the disclosure statement was made by the accused on 16.06.2011. When he as per the prosecution case was arrested on 17.06.2011 how he could have made disclosure statement before the police while in custody on 16.06.2011. The story of making disclosure statement and the recovery of shirt Ext. P-2 vide recovery memo Ext. PW-1/C pursuant to same is, therefore, highly doubtful. True it is that the chemical examiner after conducting the test has found the blood of group ‘B on the shirt. Similar was the blood group of deceased. The possibility of the shirt stained with blood has been fabricated by the police at its own as suggested to the I.O during his cross-examination cannot be ruled-out, particularly when the story qua disclosure statement made by the accused and recovery of the shirt pursuant to such statement is not at all proved from the evidence available on record. Therefore, this circumstance is also not substantiated on record, hence cannot be relied upon to bring guilt home to the accused. 20. Therefore, this circumstance is also not substantiated on record, hence cannot be relied upon to bring guilt home to the accused. 20. The reappraisal of the evidence available on record, therefore, reveal that the present is not a case where it can be said that the chain of circumstances is so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and to show that in all probabilities it is the accused alone who has murdered the deceased. The charge against the accused is, therefore, not at all proved. He has rightly been acquitted by the trial Court. 21. In view of what has been said hereinabove, there is no force in this appeal and the same is accordingly dismissed. Personal bonds furnished by the accused shall stand cancelled and surety bonds discharged.