IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.343 of 1995. Date of decision: 9.3.2010 State of H.P ..Appellant Versus Promila Devi. ..Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice Sanjay Karol, J. Whether approved for reporting ? Yes For the appellant: Shri Vivek Singh Thakur, Additional Advocate General. For the respondent: Mr.Naresh Thakur, Advocate for the respondent. _____________________________________________________ Deepak Gupta, J, (Oral). This appeal by the State is directed against the judgment dated 11.11.1994 passed by the learned Additional Sessions Judge, Kullu in Sessions Trial No.2 of 1994 whereby he acquitted the accused of having committed an offence punishable under Section 302 read with Section 201 of the Indian Penal Code. 2 Briefly stated the facts of the case are that the accused Promila Devi was married to the deceased Baldev Singh. They used to reside in village Cheling, Tehsil Udaipur, District Lahaul-Spiti. Out of this wedlock, three children were born. PW/1, Som Dev, brother of the deceased resided in a house adjoining the house of the accused lodged a complaint with PW/12 Mohan Lal on 24th October, 1991 that his brother Baldev Singh was missing for the last 4-5 days. He also informed the police that the accused was a woman of easy virtue and she had been quarrelling with her husband. He alleged that once the accused was caught red handed in a compromising position with a ‘Gorkha’ by the deceased and their relations were further strained. He further suspected that the accused may have killed her husband. PW/12 Mohan Lal recorded the statement of PW/1 under Section 154, Cr.P.C Ext.PA and sent it to the Police Station, Keylong through constable Prabhu Ram where the formal FIR Ext.PL was registered by ASI Bir Singh, PW/9. 3 PW/12 Mohan Lal then proceeded to the house of the accused alongwith the complainant. The accused was arrested. She allegedly made a disclosure statement (Ext.PD) under Section 27 of the Indian Evidence Act in the presence of Tulsi Ram, PW/2 and Balbir Singh, PW/11 to the effect that she had killed her husband with stones and had buried his dead body in a field. She also stated that she could get the dead body and the stones recovered. She thumb marked this statement which was also signed by the witnesses. Thereafter, the accused allegedly led the police party to a field close to her house where she pointed out the place where she had buried the dead body of her husband. The spot was dug out with the help of local villagers and the dead body of Baldev Singh was found buried underneath stones and potatoes wrapped in a gunny bag Ext.P9 which was sealed. The dead body was recovered and taken into possession vide memo Ext.PF. The accused also produced two stones Ext.P/10 and P/11 vide memo Ext.PG. The stones were also sealed. The investigating officer prepared the site plan of the fields 4 (Ext.PW12/A) and the site plan of the house and cow-shed of the accused Ext.PW12/B. The inquest report Ext.PB was prepared. Photographs of the dead body on the spot were taken through photographer PW/6, Gian Chand. After completing the investigation and making recovery of certain other items such as clothes which the accused was reportedly wearing at the time of the occurrence, the dead body was sent to the District Hospital, Keylong for the post-mortem which was conducted by Dr.Mohan Lal, PW/7. The doctor found five injuries on the body of the deceased. After completing the investigation and recording the statements of the witnesses, a challan was filed in the Court and the accused was summoned. Since the case was triable by the Court of Sessions, the same was committed to the Sessions Court. The accused was charged for the offence detailed here-in-above. She pleaded not guilty and claimed trial. After trial, the accused has been acquitted. Hence the present appeal. This is a case of circumstantial evidence and there is no eye witness to the murder. It is a well settled law that in the case of circumstantial evidence, the 5 circumstances should be linked together in such a fashion that the only irresistible conclusion which can be drawn is the guilt of the accused. The hypothesis of guilt should be conclusive, consistent and should exclude any chance of any other person having committed the offence. In case there is any chance of the accused being innocent, the Court has to decide the matter in favour of the accused. The first circumstance relied upon by the prosecution is the disclosure statement made under Section 27 of the Indian Evidence Act. Section 27 reads as follows:- “27. How much of information received from accused may be proved--. Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, are related distinctly to the fact thereby discovered, may be proved.” 6 It is alleged that the accused made the statement when she was interrogated by PW/12 Mohan Lal in the presence of PW/2 Tulsi Ram and PW/11 Balbir Singh. In case we go through the statement Ext.PD in detail, it is apparent that one part of the statement wherein the accused states that she had killed her husband with stones is inadmissible in evidence being confessional in nature. The other part of the statement that she can identify the spot where she had buried the body and concealed the stones can be read in evidence. One of the basic principles of Section 27 of the Indian Evidence Act is that the fact which is discovered consequent to the disclosure statement should be a fact which was known only to the accused and to none else before such disclosure or recovery was made. If a fact is already known, that fact cannot be said to be discovered even if disclosed by the accused. Under Section 27 of the Indian Evidence Act if an information given by the accused leads to the discovery of fact which is a direct outcome of such information then only it would be 7 treated as admissible evidence. However, if the fact was already known then the statement is of no value. Reference in this behalf may be made to the judgment of the Apex Court in Jaffar Hussain Dastagir vs. State of Maharashtra, 1969 (2) SCC 872 wherein the Apex Court held as follows:- “That in order that the section may apply the prosecution must establish that the information given by the appellant led to the discovery of some fact deposed to by him. It is evident that the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused. The essential ingredient of the section is that the information given by the accused must lead to the discovery of the fact which is the direct outcome of such information. Secondly, only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused. Thirdly, the discovery of the fact must relate to the commission of some offence. The embargo on statements of the accused before the police will not apply if all the above conditions are fulfilled. If an accused charged with a theft of articles or receiving stolen articles within the meaning of Section 411, IPC states to the police “I will show you the articles at the place where I have kept them” and the articles are actually found there, there can be no doubt that the information given by him led to the discovery of a fact, 8 i.e., keeping of the articles by the accused at the place mentioned. The discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. In principle, there is no difference between the above statement and that made by the appellant in this case which in effect is that “I will show you the person to whom I have given the diamonds exceeding 200 in number”. The only difference between the two statements is that a “named person” is submitted for “the place” where the articles are kept. In neither case are the articles or the diamonds, in fact discovered. There can be no doubt that the portion of the alleged statement of the appellant would be admissible in evidence.” Reference may also be made to the judgment of the Apex Court in Vijender Vs. State of Delhi, 1997 (3) JT 131 wherein the same principle has been reiterated. Applying the aforesaid principles of law to the present case, it is apparent that the so called disclosure statement did not lead to the discovery of any new facts. The complainant Som Dev PW/1 in his statement under Section 154, Cr.PC Ext.PA had clearly stated that he suspected that the accused must have killed his brother and concealed the dead body somewhere. When Som Dev was examined in Court as PW/1, he stated that he 9 had found his brother Baldev Singh, deceased, missing since 19th October, 1991. He also stated that he saw the accused digging up a pit in her field in the morning of October 20, 1991 and this pit was filled up on the next day, i.e., October 21, 1991. To the similar effect is the statement of PW/3 Hira Singh who stated that he saw the accused digging a pit on October 20, 1991. Thus it is clear that both these witnesses had seen the accused digging a pit on October 20, 1991. The complainant clearly suspected that the accused must have killed her husband. This pit was dug in a field and this fact was known to at least two witnesses. Som Dev in his statement under Section 154, Cr.PC stated that he suspected that the accused had concealed the dead body of her husband somewhere. Both these witnesses also stated that in the month of October, normally such pits are not dug. It is, therefore, obvious that the fact of digging up a pit and it being covered was known to the complainant and the witness much prior to the disclosure statement. They must have told the investigating officer about it. When suspicion was there and the accused had already 10 been arrested, it would not take a long time for any investigating officer to add two and two together. It is apparent that this fact was known to the witnesses and the police prior to the disclosure statement. Therefore, such disclosure statement cannot be relied upon. As far as the disclosure of stones Ext.P/10 and P/11 are concerned, the same were recovered from the field where the dead body was recovered. The two witnesses, i.e., PW/2 and PW/11 to the recovery did not support the prosecution version at all. According to PW/2 Tulsi Ram, it was the police who recovered the stones from the pit. PW/11 Balbir does not say that the accused got the stones recovered. Under Section 27 of the Evidence Act, the fact which is discovered must be incriminating against the accused. In the post mortem report Ext.PK and in the statement before the Court, Dr.Mohan Lal stated that he found as many as five injuries on the person of the deceased. He also opined that the death of the deceased Baldev Singh occurred due to a head injury leading to intra-cranium haemorrhage and shock which 11 resulted in cardio respiratory arrest and asphyxia. He was shown the stones Ext.P/10 and P/11. He stated that though fracture of ribs could be caused with such stones but the lacerated wounds on the head could not be caused by such stones. His clear-cut opinion is that the lacerated wound on the scalp could only be by a sharp edged weapon. Therefore, the stones Ext.P/10 and P/11 cannot be said to be the only weapons used to cause the death of deceased Baldev Singh. Therefore, this recovery is also of no consequence. Furthermore, on one of the stones, no blood was found. On the other stone, blood was found as per the report of Chemical Examiner, Ext.PM but the Chemical Examiner could not give any opinion whether the blood was human blood or not. The second circumstance relied upon by the prosecution is that the accused was digging a pit in her field in the morning of October 20, 1991 and such pit was filled up on the next day, as stated by PW/1 and PW/3. It is important to note that the accused lives in Lahaul Spiti. PW/3 Hira Singh admitted that potatoes were extracted 12 from the fields in the month of October and that potato seeds were then kept in the pits for the next season. Later on, he however, stated that by October, 20, this work of extraction was already over. Therefore, this circumstance also cannot be used against the accused. The third circumstance relied upon by the prosecution is that the accused was found in a compromising position with a ‘Gorkha’ about one month prior to the death of Baldev Singh. There is no direct evidence with regard to the accused being seen in a compromising position with a Gorkha. No evidence has been led except the hearsay statement of PW/1. In an event, such circumstance may have given a cause to the husband to kill the accused but would not give a cause to the accused to kill her husband. Another circumstance relied upon against the accused is that after killing her husband, she hid her blood stained clothes Ext.P/2 to P/5 in a cowshed. Such clothes admittedly were neither recovered at the instance of the accused nor she made any disclosure statement about them. Interestingly, PW/11 Balbir in cross-examination 13 stated that these clothes were pointed out to the police by the complainant PW/1 Som Dev. How did Som Dev know that these clothes were hidden in the cowshed? It is apparent that Som Dev not only knew the place where the dead body of the deceased Baldev Singh was buried but he also knew where his clothes had been hidden. The Investigating Officer should have interrogated Som Dev to find out as to how he knew all these facts. The fifth circumstance relied upon by the prosecution is that though the deceased was missing from 19th October, 1991, the accused told Som Dev, complainant, on enquiry being made by him, that the deceased had gone to Kullu to bring some provisions. Similar is the version of Amar Lal, PW/4. It is argued that such conduct on behalf of the accused shows that she had something to hide and, therefore, she must have killed her husband. Even if these facts are accepted to be correct then also it can only raise a finger of suspicion but it does not prove that the accused killed her husband. In the area in question, roads are closed due to snow by 14 the end of October or beginning of November and it would not be unreasonable for the wife to think that her husband had gone to get provisions. Another important flow in the prosecution case is that as per the prosecution, the deceased was killed on the night intervening October 18-19, 1991 and thereafter, the accused buried his dead body in a pit in the field during the night intervening October, 20-21, 1991. The accused has three children with her. How she could have kept a dead body of her husband for two days at her home? As per the statement of Dr.Mohan Lal, PW/7 the time between death and post mortem was 1 to 4 days. The post mortem was conducted at noon on 25th October 1991. Therefore, the deceased Baldev Singh had died earliest by the noon of 22nd October, 1991. As such, the prosecution version that the deceased was killed by the accused on the night intervening 18th and 19th October, 1991 is false and cannot be believed. Another important circumstance is that admittedly the houses of PW/1 and a number of other witnesses adjoin the house of the accused and the 15 deceased. The three children of the accused also lived with her. It cannot be believed that she could have murdered her husband and taken his dead body to the field and buried it in a pit without anybody else in the area coming to know about this fact especially in view of the fact that the deceased was an able bodied person of 35 years of age. The possibility of Baldev Singh having been killed by Som Dev or by any other persons cannot be ruled out. None of the children have been examined in this case which also casts a doubt on the prosecution case. In view of the above circumstances, the learned Trial Court was right in holding that the accused was not guilty. We find no merit in the appeal which is accordingly rejected. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge 9th March, 2010 (Sanjay Karol) (m) Judge 16