HIGH COURT OF JAMMU AND KASHMIR AT JAMMU Cr. Appeal no. 26/2008 Cr. Appeal no. 02/2009 with Confirmation Ref. no.10/2008 Date of Decision: 02.04.2009 Simbo Devi vs. State of J&K Phambi Ram & Ors. vs. State of J&K CORAM: HON’BLE MR. JUSTICE NIRMAL SINGH, JUDGE. HON’BLE MR. JUSTICE J. P. SINGH, JUDGE. Appearing counsel: For Appellant(s) : Mr. Anil Khajuria, Advocate. For Respondent(s) : Mr. S.C.Gupta, AAG. i) Whether approved for reporting in Press/Journal/Media : Yes/No ii) Whether to be reported in Digest/Journal : Yes/No ________________________________________________________ J.P.Singh, J : Accused of subjecting Poli Devi to cruelty, committing her murder, and causing disappearance of the evidence, so as to screen them of the offence committed, Five persons namely Phambi Ram, the father-in-law, Krishni Devi, the mother-in-law, Amita Devi, the sister-in-law, Simbo Devi, wife of Phambi Ram’s brother and Parkash Chand, the brother-in-law of Poli Devi, were sent for trial before learned Sessions Judge, Udhampur, pursuant to the committal of Final Police Report filed by Police Station, Ramnagar under Section 173 of the Code of Criminal Procedure, by the Judicial Magistrate, Ist Class, Ramnagar. After holding the trial and acquitting the fifth accused Parkash Chand, the brother-in-law of the deceased, learned 2 Sessions Judge, found the rest four, herein appellants, Guilty. Accordingly convicting them under Sections 302/201/34 RPC vide his judgment of September 12, 2008, Learned Sessions Judge has sentenced them to Imprisonment for Life and a fine of Rs.10,000/- under Section 302 RPC, and Imprisonment for two years and a fine of Rs.5000/- under Section 201 RPC and in default of fine to one year and six months Imprisonment vide Order dated September 16, 2008. No case was, however, proved against them for infraction of Section 498-A RPC. Seeking setting aside of their conviction and sentence, the appellants have appealed to us for their acquittal. Learned Sessions Judge too has made Reference for Confirmation of appellants’ sentence. Appellants’ appeal nos. 26/2008 & 02/2009 and Confirmation Reference no. 10/2008 have arisen in the backdrop of the following:- FACTS:- Poli Devi, was married to Hans Raj, about three years before her death, in Village “Parey” of Tehsil Ramnagar in District Udhampur of the State of Jammu and Kashmir. Phambi Ram and Krishni Devi,appellants are her parents- in-law whereas Amita Devi appellant is her sister-in-law. Simbo Devi appellant is Phambi Ram-appellant’s brother’s wife. According to the prosecution story, Poli Devi’s dead body was found floating in a rivulet “Parey” on October 31, 2006. 3 Pursuant to the information received in this behalf, Police Station Ramnagar retrieved the dead body and seized a pink coloured Woolen Pullover and footwear (Plastic Chappals), found on a Stone 140/150’ towards the north of the rivulet. Proceedings initiated under Section 174 of the Code of Criminal Procedure by the Police culminated in the registration of FIR No. 88/06 under Sections 302/498-A RPC in Police Station Ramnagar. The prosecution story, as unfolded in the Report under Section 173 of the Code of Criminal Procedure, indicates that disturbed over Poli Devi’s illicit relationship with appellant Simbo Devi’s son Suraj Parkash, the appellants were not happy and had been thus maltreating her. Her husband Hans Raj was not at home and she was sleeping with her Cousin Shivali Devi, aged 7 years, in her room on October 29, 2006, when, on not finding her in the room, Shivali Devi started crying, which invited appellant Simbo Devi’s attention who came to her room, and on being told by Shivali Devi that Poli Devi was not in the room, went to her son Suraj Parkash’s room and found Poli Devi sleeping there. Raising noise she started accusing Poli Devi of having spoiled her son’s life. With the motive of saving the prestige of the family, the appellants are stated to have beat Poli Devi with a stick and a small wooden log called ‘Damni’ in local Dialect, used for washing clothes, with intention to cause her death and thereafter kept her dead body in a Container, meant for storing food grains, which was later thrown in the rivulet to 4 cause disappearance of the evidence of the offence committed by them, in connivance with Parkash Chand. Denying the charge framed against them by the learned Sessions Judge, Udhampur under Sections 302, 498- A and 201 read with Section 34 of the Ranbir Penal Code, the appellants claimed to be tried. Prosecution produced twenty eight out of thirty one listed witnesses to prove its case which was based on Direct and Indirect Circumstantial Evidence. The resume of statements of the witnesses examined by the prosecution during the trial of the case has been given by the learned Sessions Judge in his judgment of September 12, 2008. APPELLANTS’ SUBMISSIONS:- Appearing for the appellants and projecting appellants’ innocence, learned Amicus Curiae, Mr. Anil Khajuria submitted that there being no evidence on records to prove that the appellants had been last seen with the deceased, their conviction for her murder was unsustainable. Learned counsel submitted that reliance placed by the trial Court on the statements of PW-19 Shivali Devi and PW-20 Shano Devi, to justify appellants’ conviction was unwarranted, in that, rather than supporting the prosecution, these witnesses had projected a case which supports appellants’ innocence. According to the learned counsel, the trial Court had committed error in holding the appellants guilty in the absence of any evidence in support of the prosecution case and merely because they had failed to substantiate their 5 defence raised during arguments that the deceased had committed suicide, which course, according to the learned counsel, was impermissible, in that, failure of an accused to prove its defence cannot be taken as proof of the prosecution case when the prosecution had failed to prove it by its own evidence. STATE COUNSEL’S SUBMISSIONS:- Learned State Counsel urged that in finding out the truth, the trial Court was right in raising the presumption flowing from the failure of the appellants to prove their defence, and in view of the evidence produced by the prosecution, the conviction and sentence of the appellants was justified. We have considered the submissions advanced at the Bar, perused the evidence on records and the judgment delivered by the learned Sessions Judge, Udhampur. DISCUSSION:- Prosecution had relied upon PW-1 Vijay Kumar to prove that appellants had been found by the witness to have beaten the deceased at quarter to four on October 29, 2006 in their house. This witness, however, did not support the prosecution case denying whatever had been attributed to him in his statement recorded by the Police under Section 161 of the Code of Criminal Procedure. Finding that PW-1 had not supported the prosecution and there was no other eye witness to the occurence, the trial Court found the appellants guilty of committing murder of Poli Devi, relying on the statements of PWs-19 & 20 6 besides the statements which the appellants had made under Section 342 of the Code of Criminal Procedure. Prosecution story has been found by the Learned Sessions Judge to have been supported and corroborated by the Medical evidence as also from the recovery of the weapons of offence at the instance of the appellants Phambi Ram and Simbo Devi. The circumstantial evidence which has been relied upon by the prosecution to prove its case comprises of the Disclosure statements made by appellants Phambi Ram and Simbo Devi, pursuant whereto the police had recovered and seized a stick 2’-10” in length and a 2’ long wooden log called “Damni”, vide seizure memos EXPW-RD and EXPW-RD-1 respectively, the Post-mortem Report EXPW-RG, indicating an antemortem bruise and swelling around right eye of the deceased which was found protruding, besides the testimony of PW-19 Shivali, PW-20 Shano Devi and PW-14 Jodu. In addition to these witnesses, the prosecution had relied upon the statements of PW-8 Ram Dei, the grandmother of the deceased, PW-2 Chuni Lal, the father of the deceased, PW-9 Dev Raj, the uncle of the deceased, PW-17 Kunj Lal, the grandfather of the deceased, PW-15 Lakshmi Devi, the real sister of the deceased, PW-18 Surjo Devi and PWs-27 & 29, Dr. Rajesh Gupta and Dr. Ajay Gupta, who had conducted the autopsy of Poli Devi, deceased. Besides these witnesses, the prosecution had produced other informal witnesses who had conducted the investigation and prepared the Disclosure statements and Seizure memo etc. 7 The prosecution had produced two star witnesses PW- 19 Shivali Devi & PW-20 Shano Devi to prove that Poli Devi deceased had been last seen with the appellants before her death. Perusal of the statements of these two witnesses do not, however, indicate any such thing on the basis whereof it may be said that the deceased had been last seen with the appellants before her death, in that, PW-19 Shivali Devi, the cousin of the deceased is categoric in saying that on coming out of the room, which had been locked from outside by appellant Krishni Devi and from inside by the deceased, the deceased had left the appellants’ house and had not thereafter come back which had led all to go in for her search. PW-20 Shano Devi, who was declared hostile had stated that Poli Devi was having good relations with the appellants and appellant-Krishni Devi had closed the door of her room with a view to keep her there till her parents would come but on Poli Devi’s insistence, the door was opened and she came out in the verandah and was saying that she had to go out for defecation. She had, however, no knowledge as to whether or not the deceased had gone out of the house to defecate because before that she had left the house of the appellants. The categoric statement of PW-Shivali Devi, who has been found by the trial Court to be a competent witness, that the deceased had left the house of the appellants after coming out of the room thus disproves the prosecution story that the deceased was last seen with the appellants before 8 her death. At the time when the deceased had left the appellants’ house none had noticed any injury on her person nor is she stated to have disclosed to anyone about her having received any injury at the hands of the appellants at the time when she was with them. PW-Shano Devi too had not noticed any injury on Poli Devi when after coming out of the room she had indicated her intention to go out of the house for defecation. The injury found on the right eye of the deceased is so prominent that had it been caused during Poli Devi’s stay with the appellants, none would have escaped noticing it. In the absence of any evidence on records that the deceased had come back to the appellants’ house after defecation, the appellants cannot be connected in any manner whatsoever with the injury which was found on the person of the deceased and as a result whereof she had died. In such view of the evidence of these two witnesses on which the prosecution had heavily relied to connect the appellants with the commission of the crime, on the ground that the deceased had been last seen in the company of the appellants, the prosecution cannot be said to have proved that the deceased was last seen in the company of the appellants before her death, in that, the appellants cannot be held responsible for what had happened to the deceased after she had left their house. Recovery of ‘Damni’ and ‘Stick’ at the instance of Phambi Ram and Simbo Devi too would not in any way help the prosecution in establishing its case against the appellants for three reasons; viz, (1) the alleged weapons of 9 offence are not found to be blood stained, (2) the seizure of ‘Damni’ and ‘Stick’ would not, of itself, create any incriminating evidence against the appellants for holding them guilty of using the weapons in causing the injury on the person of Poli Devi, in the absence of any evidence on records indicating them to have caused injuries with ‘Stick’ and ‘Damni’ and (3) the presence of only one injury on the person of the deceased rules out the use of two weapons of offence of different dimensions. There is no acceptable evidence on records for holding that the appellants had any motive to kill the deceased, for the evidence of her near relations including his father, mother, grandfather, grandmother, sister, uncle and brother-in-law is contradictory in terms, in that, some of them have deposed that the appellants wanted to contact second marriage of Poli Devi’s husband because Poli Devi was unable to bear child and her husband would often beat her whereas a few have stated that the appellants had levelled allegations of infidelity against the deceased. Learned Sessions Judge has held the Motive projected by the prosecution against the appellants proved taking support from their statements made under Section 342 of the Code of Criminal Procedure, to the effect that the deceased had gone to the house of Suraj Parkash to sleep with him, as their admission about the infidelity of the deceased. We have scanned the statements of the appellants made under Section 342 of the Code of Criminal Procedure; but are unable to find any admission as such in their statements to the effect that the deceased had gone to Suraj 10 Parkash’s room to sleep with him. All that has been stated in this context by one of the appellants namely Krishni Devi is that when the deceased came out from Suraj Parkash’s room, she had gone out to defecate and did not return thereafter. This statement, by any stretch of reasoning, cannot be termed as appellants’ admission that the deceased had gone to Suraj Parkash’s room to sleep with him. We, therefore, do not find any acceptable evidence on the records to support the trial Court’s finding that the appellants had strong Motive to eliminate the deceased. This finding cannot thus be sustained. After going through the prosecution evidence, We have not been able to find any cogent evidence on records to hold that the appellants were responsible for causing the injury which had led to the death of Poli Devi. We further find that the prosecution has not led any evidence to prove that the appellants had kept Poli Devi’s dead body in the Container meant for storing food grains and thereafter thrown her dead body into Parey Nallah, with a view to cause disappearance of evidence, to screen the offender from punishment because the only witness cited by the prosecution to prove this fact was PW-Jodu who, while making statement in the Court had categorically denied his having seen the appellants carrying the dead body of the deceased wrapped in a blanket. Learned Sessions Judge, as it so appears from the perusal of his judgment, has used some parts of the appellants’ statements made under Section 342 of the Code of Criminal Procedure to discredit appellants’ counsel’s 11 submission that the deceased had committed suicide, And thereafter drawing inference therefrom, held the prosecution to have proved its case relying on the weakness of the defence. Prosecution has not led any evidence on the basis whereof it may be said that the appellants’ plea in their statements under Section 342 of the Code of Criminal Procedure that they had gone out in search of Poli Devi when she had not come back was incorrect. On the other hand, majority of the prosecution witnesses have admitted the appellants to have gone in search of the deceased. The findings of the trial Court that the appellants had spread rumor about the disappearance of the deceased and their going for her search, too is not supported by any material on the records. The trial Court has fallen in error in misconstruing the provisions of Section 342 of the Code of Criminal Procedure and the use of statement recorded thereunder, in appreciating evidence, in a Criminal trial. Statement made by an accused under Section 342 of the Code of Criminal Procedure is not a substantive piece of evidence and cannot be a substitute for the prosecution evidence, meaning thereby that in the absence of the prosecution evidence to sustain conviction, statement of the accused made under Section 342 of the Code of Criminal Procedure cannot be made use of to justify the conviction. It cannot, however, be lost sight of that the statement of an accused may be used for appreciating evidence led by the prosecution, to accept or reject, it. The statement made by an 12 accused may, in this context, be relied on in whole or in part and while doing so, the inculpatory part of the statement may be made use of only if the exculpatory part is found to be false on the basis of the prosecution evidence. If, however, the prosecution evidence does not inspire confidence to sustain conviction, the inculpatory part of the statement made under Section 342 of the Code of Criminal Procedure cannot be made the sole basis for recording conviction. What has happened in the case, as the whole discussion of the learned Sessions Judge so reveals, is that the learned Sessions Judge has laboured hard to support the prosecution case relying on the failure of the defence plea raised at the time of final hearing of the case that the deceased had committed suicide, and the appellants’ statements under Section 342 of the Code of Criminal Procedure, though, out of context, and by misreading them, when there was no acceptable and sustainable evidence, as We have observed elsewhere in this judgment, proving the appellants to be the author of the injury which had led to the death of Poli Devi deceased or such complete chain of circumstances on the basis whereof it may be said that the appellants’ alone and none else could have been responsible for causing injury, found on the person of the deceased. The course adopted by the learned Sessions Judge is not countenanced by law. Suspicion howsoever strong it may be, cannot be a substitute of legal proof, is a position well settled in law. The evidence led by the prosecution in this case does not even prove any suspicion against the appellants and in such view 13 of the matter, failure of the appellants to justify their submission that the deceased might have committed suicide, would not lead to any inference that they were responsible for the death of the deceased. An accused, who is presumed to be innocent cannot be deprived of the presumption merely because one of the pleas raised by him in his defence was not found tenable. For all what has been said above, We do not find any evidence on records establishing such facts and circumstances, on the basis whereof conclusion may be reached at, beyond any reasonable shadow of doubt, establishing the guilt of the appellants, excluding every hypothesis except that of the appellants’ guilt, because the prosecution has failed to prove the chain of events pointing out irresistibly only to the guilt of the appellants excluding entirely any hypothesis consistent with their innocence. Accordingly, declining Confirmation Reference No. 10/ 2008 and allowing Appeal Nos. 26/2008 & 02/2009, We would acquit the appellants setting aside their conviction and sentence awarded by learned Sessions Judge, Udhampur vide his judgment of September 12, 2008 and Order of September 16, 2008. Acquitting the appellants, We direct their release from custody forthwith. (J. P. Singh) (Nirmal Singh) Judge Judge JAMMU 02.04.2009 Pawan Chopra