IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 355 of 1996. Judgment Reserved on : 15.3.2010 Date of Decision : June 4, 2010 State of Himachal Pradesh Appellant Versus Baldev Singh Respondent Coram: Hon’ble Mr. Justice Deepak Gupta, Judge Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Vivek Thakur, Additional Advocate General with Mr. R. M. Bisht, Deputy Advocate General for the appellant. For the respondent : Ms. Vidushi Sharma, Advocate, for the respondent. Sanjay Karol, J. In this appeal filed under Section 378 of the Code of Criminal Procedure, the State has assailed the impugned judgment dated 8.8.1995 passed by the learned Sessions Judge, Chamba Division, Chamba, H.P. in Sessions Case No. 27 of 1994 whereby the accused stands convicted of having committed an offence punishable under Whether reports of Local Papers may be allowed to see the judgment? 2 Section 325 of the Indian Penal Code. The accused was under detention for a period of more than one year and four months and he was sentenced to undergo imprisonment already undergone by him. 2. The accused was initially charged for having committed an offence punishable under Section 302 of the Indian Penal Code. The State has filed the present appeal praying that the accused be convicted for having committed the said offence and be punished accordingly. 3. It is the case of the prosecution that Sh. Gunjara (deceased) lived in village Khandwala. He owned and possessed land and jewellery. Smt. Dhani Devi lived with him as his wife. She had a daughter named Smt. Dasu who was married to the accused. The accused alongwith his wife Smt. Dasu and adopted son Budhi Ram, was living with Sh. Gunjara as a ‘Ghar Jamai’. Sh. Porkhi Ram (PW- 4) also lived in the same village and was the immediate neighbour of Sh. Gunjara. Kitchens of the houses of both these persons were separated by a common wall. The deceased had sold part of his land to Sh. Gurdev Singh (PW-1), and also transferred some land in the name of the accused. On 5.4.1994 at about 9.00 – 9.30 a.m., PW-4 and his wife Smt. Dhani Devi were having meals in their kitchen where he heard noises coming from the kitchen of the deceased. He heard the deceased saying that his belongings were being stolen and he suspected none other than the family members. He proclaimed that he would go to the police station and ensure that 3 the said persons be beaten up by the police, to which the accused retorted by saying “TERI AISI KI TAISI. HUM TUMHEN PALNE LAGEN HAIN AUR TUM HAMEIN THANE MAIN KUTWAOGE” (Who cares for you. We are looking after you and you say that you will get us beaten from the police.) Immediately thereafter he heard 2-3 sounds. PW-4 called out to the accused and asked him not to indulge in any “MARPEET” (beatings). Then there was absolute calmness. PW-4 came out of his house to ascertain as to what had transpired. He found all the doors and the windows of the house of the deceased closed. He got frightened and went to inform Sh. Shri Singh, a relative of the deceased about the occurrence. Through a boy he also sent a message to the daughter of the deceased, Smt. Dogri to come and inquire about the welfare of her father. Sh. Shri Singh upon reaching the house of the deceased informed him about the death of Sh. Gunjara. Thereafter at about 6.30 p.m., Sh. Singh and one Sh. Mehar Singh visited the house of PW-1 in village Akoonja to inform him about the death of Sh. Gunjara. He was told that as disclosed by PW-4 the deceased had been killed by the accused. Thereafter all of them went to the house of Sh. Devi Dayal (PW-2) Pradhan, Gram Panchayat, Dand and informed him about the occurrence of the incident. The Pradhan expressed his desire to visit the spot and himself ascertain the facts before the matter was reported to the police. Hence, PW-2 alongwith Sh. Singh, PW-1 and the brothers of Sh. Mehar Singh namely Sh. Bhaktu, Sh. Chatru Ram and Sh. Bhimi Ram went to the house of the deceased where 4 they found the accused and his wife Smt. Dishu sitting in front of the fire. Master Budhia was sleeping nearby and the dead body of the deceased was covered with a woolen ‘chaddar’. They were informed that the deceased had died at about 11.00 a.m. due to pain in the stomach. The explanation being unsatisfactory PW-2 went to the house of PW-4 to verify the version as disclosed by PW- 1. PW-4 narrated the entire incident to him and in turn PW-2 confronted the accused with the same. He also removed the ‘chaddar’ used for covering the dead body and found injury marks on the left side of the forehead of the deceased. Blood was oozing out from the mouth and nostril and a piece of cloth was inserted in the mouth. Confronted with the same the accused confessed that he had hit Sh. Gunjara with a piece of wood which resulted into his death. 4. Thereafter PW-2 deputed Sh. Bhaktu and Sh. Chatter Singh to guard the spot and alongwith Sh. Singh and PW-1 he proceeded to the Police Station, Kihar to report the matter. On the way they also went to the house of Sh. Singh, Member Panchayat (this Sh. Singh is different from Sh. Singh and Sh. Shri Singh noticed earlier). On the complaint of PW-1, F.I.R. (Ext. PA) No. 33/94, dated 6.4.1994, under Section 302 IPC, was registered with Police Station, Kihar and the police machinery was set into motion. Sh. Kishan Chand, S.H.O. (PW-11) visited the spot and got the place of occurrence of crime photographed. He took into possession the blood stained earth (Ext. P3) from the floor which had been freshly plastered with cow 5 dung. The ‘chaddar’ (Ext. P4) and the blood stained turban (Ext. P5) of the deceased was taken into possession vide memo Ext. PB. The alleged weapon of offence i.e. piece of fire-wood (Ext. P6) was taken into possession vide memo Ext. PF. All this was done on 6.4.1994. The post mortem was conducted through Dr. Nagesh Verma (PW-3) who gave his report (Ext. PG). On further interrogation, on 10.4.1994 accused made his disclosure statement (Ext. PB) on the basis of which a coat (Ext. P2) and a shirt (Ext. P1) found in a torn condition were recovered from the house of the deceased vide memo (Ext. PC) dated 10.4.1994. During the course of investigation Sh. Jagdish Chand, Junior Engineer (PW-5) prepared the spot map (Ext. PH) as per scale. The recovered articles were sent to the Forensic Science Laboratory, Shimla for analysis and reports (Ext. PL and Ext. PM) were obtained by the police. With the completion of the investigation challan was filed in the Court for trial. 5. The accused was charged with having committed the murder of Sh. Gunjara Ram (deceased) to which he did not plead guilty and claimed trial. 6. The prosecution examined eleven witnesses and the statement of the accused under Section 313 Cr.P.C. was also recorded wherein he took the defence that PW-4 was not on speaking terms with him and also inimical towards him. The witnesses wanted to grab the land of the deceased hence he has been falsely implicated. 6 7. The Court below has held the accused guilty of having committed an offence punishable under Section 325 of the Indian Penal Code. The following reasons weighed for convicting the accused. 1. From the testimony of PW-1 and PW-4 it stood proved that a quarrel had taken place between the accused, Smt. Dishu and the deceased. 2. The testimonies of the prosecution witnesses are totally reliable and convincing. The witnesses being disinterested had no bias, prejudice or enmity with the accused and had no reason or motive to falsely implicate him. 3. The accused admitted his guilt before PW-1 and PW-2 when they visited the house of the deceased. The “extra judicial confession” “appears” to be reliable and trustworthy. 4. The deceased was an aged man of 80 – 90 years and the accused and his wife were living with him for over a period of 40 – 45 years. Since the accused had given only one blow with the piece of fuel wood he had no intention to actually kill the accused. The accused had intended to only chasten the accused. He “could have” intended of only causing grievous hurt and thus was guilty of having committed a lesser offence. 8. Only the State has filed the appeal. The question as to whether in the appeal filed by the State, conviction of an accused can be set aside stands settled by this Court in State of Himachal Pradesh versus Sudesh Kumar and others, 2000 (2) Shim. L.C. 379 and the Apex Court in Bijoy Singh and another versus State of Bihar, 7 (2002) 9 SCC 147; Pawan Kumar versus State of Haryana, (2003) 11 SCC 241 and Nitin @ Nitu Ram Parshad Bachicha (Dhobi) versus State of Gujarat, 2009 Cri. L. J. 2330. 9. In support of its case the prosecution has examined the following witnesses. (1) Sh. Gurdev Singh (PW-1) complainant who had bought land from the deceased; (2) Sh. Devi Dayal (PW-2) Pradhan, Gram Panchayat Dand; (3) Dr. Nagesh Verma (PW-3) who conducted the autopsy; (4) Sh. Porkhi Ram (PW-4) immediate neighbour of the deceased; (5) Sh. Jagdish Chand (PW-5) the Junior Engineer who prepared the spot map; (6) Constable Lekh Raj (PW- 6) who photographed the spot as also the body of the deceased; (7) HC- Subhash Chand (PW-7) with whom the case property was kept in the police station; (8) HC-Jatinder Kumar (PW-8); (9) HC-Kalyan Singh (PW-9) who carried the dead body for post-mortem; (10) Constable Balbir Singh (PW-10) who took the parcels to the Forensic Science Laboratory, Bharari, Shimla and (11) SI-Kishan Chand (PW- 11) who conducted the investigation of the case. 10. Statements of PW-1, PW-2 and PW-4 alone, being independent/spot witnesses are relevant. Other are the official witnesses. Record further reveals that in all prosecution had intended to examine 23 witnesses and Sh. Singh, Sh. Shri Singh, Smt. Dhani Devi, Sh. Chatru Ram, Sh. Mehar Singh, Sh. Mussadi, Sh. Dhanpat, Sh. Behami, Smt. Dogri, Sh. Bhartu, Sh. Jai Ram were given up by the prosecution. Smt. Dishu Devi (wife of the accused) could not be examined as she died during trial. 8 11. There are certain undisputed facts which have emerged from the record. The deceased was an old man of 80 – 90 years of age. He was possessed with moveable and immoveable properties. The accused alongwith his wife Dassu and adopted son Budhia Ram had been living with him for more than forty years. PW-4, an immediate neighbour was usually not on speaking terms with the accused and the deceased. Sh. Din Mohammad who had a house in the village used to reside there with his two sons. They were neither associated during investigation nor examined during trial. During investigation, PW-11 had recorded the statements of only PW-1 and PW-4. Who recorded the statements, if any, of the other cited witnesses has not been proved on record. 12. From the post mortem report as also the deposition of Dr. Nagesh Verma (PW-3) the deceased died due to head injury (i.e. Ac. Haemotoma with brain contusion) by a blunt weapon. 13. None of the prosecution witnesses have seen the occurrence of the alleged incident. The prosecution case therefore primarily rests on circumstantial evidence. The law of circumstantial evidence is now well settled. 14. According to the prosecution there are three circumstances which conclusively prove the guilt of the accused. (i) PW-4 hearing the altercation which took place between the deceased and the accused at about 9.00 – 9.30 a.m. on 5.4.1994. His further hearing 2 – 3 loud sounds which was a result of the blow given by the accused to the deceased. (ii) Extra judicial confession made by the 9 accused in the presence of PW-1, PW-2 and PW-4 admitting that he had killed the deceased. (iii) The confessional statement of the accused leading to the recovery of the blood stained clothes of the deceased. 15. To deal with each of the circumstances we proceed to examine the testimonies of the prosecution witnesses. 16. PW-4 is the star witness of the prosecution according to whom the relations between the accused and the deceased were cordial except that on some occasions they used to quarrel with each other. On 5.4.1994 at about 9.00 – 9.30 a.m. he and his wife were taking meals in the kitchen of his house when he heard noises coming from the kitchen of the deceased. The accused and the deceased were quarrelling with each other. He heard Gunjara saying that his property was being stolen and he suspected none other than the family members. He proclaimed that he would go to the police station and cause the thief to be beaten up by them. To which the accused retorted by saying “TERI AISI KI TAISI. HUM TUMHEN PALNE LAGEN HAIN AUR TUM HAMEIN THANE MAIN KUTWAOGE” (As translated by the trial Court – Who cares for you. We are looking you after and you say that you would get us beaten from the police). Immediately thereafter he heard 2-3 sounds followed by absolute stillness. PW-4 called out to the accused and asked him not to indulge in any “MARPEET” (beatings). PW-4 then went to the house of the deceased but found all the doors and windows closed. He further states that “I got frightened that I may 10 not be implicated in this occurrence”. Hence he went to Sh. Shri Singh (relative of the deceased) at his ‘gharat’ which was at a distance of one kilometre and narrated the incident to him. He came back alone as the said relative was to come later. He also sent a message to Smt. Dogri, daughter of the deceased through some “herd boy”. In the evening Sh. Shri Singh came to the house of the deceased and while returning informed him that Sh. Gunjara had died. In the night PW-1, PW-2 and one Sh. Singh came to his house. He was woken up by them and confronted as to why an incorrect version about the circumstances leading to the death of the deceased had been given by him, as according to the accused and Smt. Dishu the deceased had died of a stomach ache. At that he asked PW-2 to himself examine the dead body and seek explanation from the accused about the injuries on the body of the deceased. He again narrated the entire incident to them. 17. In our considered view the deposition of this witness does not inspire confidence for the reasons to be discussed hereinafter. There are too many improbabilities and inconsistencies in his statement. His version stands contradicted by other witnesses. 18. He is a T.B. patient and was having fever and body pains on the fateful day. It was also raining heavily. He admits that in the village there is also a house of Sh. Mohammad who has two sons. He chose not to approach them first and inspite of pain and fever walked in heavy rain for over a distance of one kilometre to inform Sh. Shri Singh, the alleged relative of the deceased who has not 11 been examined in the Court. It appears that the relation between him and the deceased were not cordial. Though he denied the suggestion that he was not on speaking terms with the deceased but volunteered to state that sometimes they used to talk and sometimes they were not on speaking terms. He states that Smt. Dishu was not present when the quarrel took place between the accused and the deceased as she might have gone either to the cow-shed or to bring fodder. This witness is obviously telling lies. He had not seen Smt. Dishu going out of the house on that day. This version of his stands contradicted by PW-1 according to whom he had been informed by PW-4 that Smt. Dishu was in fact present in the house at the time when the quarrel took place. 19. Further this witness has made material and significant improvements from his earlier version (Ext. DA) given to the police. He was confronted with the same. He denied having not stated that (i) the height of the wall of the kitchen to be 8-9 feet (ii) deceased had no offspring (iii) the deceased had told the accused that his property was being stolen (iv) the deceased suspected the involvement of the family members in the alleged theft (v) he had informed the police that the sounds heard by him were such as if a person was hit by a piece of wood (vi) he had mentioned to the police that Sh. Singh and PW-1 had also come to his house in the night of the fateful day (vii) PW-2 had threatened him of having given a wrong version leading to the death of the deceased (viii) he 12 had sent a message to Smt. Dogri through herds boy. The improvements are material and significant. 20. This witness admits not to have entered the house of the deceased. He has also not witnessed the incident. He had been informed about the death of the deceased only by Sh. Shri Singh who had visited the spot in the evening. Sh. Shri Singh had only told him that Sh. Gunjara had died and not that the accused had confessed of having killed him. Yet he was aware of the injuries on the body of the deceased. How did he learn about the same? 21. Sh. Jagdish Chand Thakur, Junior Engineer (PW-5) who prepared the site plan Ext. PH as per scale has admitted that only loud and not low voices can be heard from one kitchen to the other. PW-4 has admitted that there was heavy rain and thunderstorm at the time of the occurrence of the incident. Hence the possibility of this witness not hearing the sounds cannot be ruled out. 22. Importantly Smt. Dhani Devi his wife has not been examined by the prosecution. She was the best person to corroborate his version. 23. Further his conduct is extremely unnatural. He learned about the death of Sh. Gunjara from Sh. Shri Singh, yet being an immediate neighbourer he went off to sleep in his house. His apprehension of being falsely implicated in the incident has not been substantiated and explained by him at all. He was the next door neighbour and having learnt about the death of the deceased could have extended basic courtesies to the members of the family of the 13 deceased. PW-2 was the first person who had disclosed him the cause of death of Sh. Gunjara. 24. Who is this herd boy, through whom he had sent a message for Smt. Dogri has not been explained by the prosecution. Now if the house of the deceased was closed how could he know that Smt. Dishu was not present in the house at the time of the alleged incident. Importantly Sh. Shri Singh had not told him that he had also disclosed the fact of the death of the deceased to PW-1 and PW-2. 25. Sh. Gurdev Singh (PW-1) is a school teacher and was posted in the Government High School, Kihar, District Chamba. He knew the deceased as he had purchased land from him. He admits that the accused, his wife Smt. Dishu and son Budhia were residing with the deceased. He claims to have good relations with the deceased and “his family”. On 5.4.1994 at about 6.30 p.m. Sh. Shri Singh and Sh. Mehar Singh came to his residence in village Akoonja and informed him about the death of the deceased. They informed that according to PW-4 the accused had killed him. How could PW-4 proclaim so? He had not seen the accused giving a blow to the deceased. He had also not seen the dead body of the deceased. Further according to him, he alongwith Sh. Singh and Sh. Mehar Singh went to the house of PW-2 and narrated the incident to him. PW-2 desired to visit the spot and ascertain the true facts himself before the matter could be reported to the police. Then he, PW-2, Sh. Singh and brothers of Sh. Mehar Singh namely Sh. Bhartu, Sh. Chatru Ram and Sh. Behmi 14 Ram went to the house of the deceased where they saw the accused and his wife Smt. Dishu sitting in front of the ‘Angithi’ (fire place) and Master Budhia sleeping nearby. The body of the deceased was lying in the room which was covered by a ‘chaddar’. The accused informed them that the deceased had died and according to Smt. Dishu the deceased had sudden pain in the stomach at about 9.00 a.m. and died at about 11.00 a.m. He inquired from the accused as to why he was not informed about the illness as he was residing nearby (distance of about 12 to 14 kilometres) and was also “intimate to the family”, to which the accused explained that the deceased had suddenly fallen ill at about 11.00 a.m. and died at about 3.00 p.m. Further the accused denied the version disclosed by PW-4. Then PW-2 went to the house of PW-4 and on return again confronted the accused and reiterated the version as disclosed by PW-4 to him. PW-2 then removed the ‘chaddar’ from the body of the deceased and the marks of injury on the left side of the forehead of the deceased were noticed by everyone present. Blood was oozing out from the mouth and the nostrils of the deceased. At that moment the accused confessed of having killed the deceased. He narrated the entire incident of quarrel which ensued between him and the deceased. Thereafter, PW-2 deputed Sh. Bhaktu and Sh. Chatar Singh to guard the body and he, PW-2, PW-4 and Sh. Singh went to the house of the Member of the Panchayat in village Chakotar whose name is also Sh. Singh. Due to heavy rain they were able to reach the police station 15 only the following morning at about 8.15 a.m. where report Ext. PA was lodged by him. According to him the police party comprising of Dy.S.P. accompanied them back to the spot of crime. He was associated with the investigation on 10.4.1994 when the accused made a disclosure statement (Ext. PB) which he signed as a witness. Based on the same, blood stained shirt of the deceased which had been washed by the accused was recovered from behind the wooden box vide memo Ext. PC and one coat from another room of the house was recovered vide memo Ext. PC. 26. Importantly his statement is conspicuously silent about the investigation which was carried out by the police on the spot between 6.4.1994 and 10.4.1994. He was the complainant with whom the police had come to the spot. Yet he was not associated during the investigation. He claimed to be close to the deceased and his family. Yet in the cross examination he could not state as to whether the deceased and PW-4 were on speaking terms or not or that the accused and the deceased were having cordial relations with each other or not. 27. This witness materially contradicted himself. He denied having been told by Sh. Shri Singh and Sh. Mehar Singh that a quarrel had taken place between the deceased, accused and Smt. Dishu, but when confronted with his earlier statement (Ext. PA) recorded before the police, he admitted that his version mentioning the name of Smt. Dishu was also correct. He further goes on to state that this fact was in fact confirmed by Smt. Dishu at the time he had gone