1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 694 of 1996 Decided on August 11, 2010 __________________________________________________________ State of H.P. …Appellant. Versus Hiru. ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr. Anil Jaswal, Deputy Advocate General. For the respondents: Mr. M.S. Thakur, Advocate with Mr. Inderjeet Narwal and Manoj Bagga, Advocates. Justice R.B. Misra,J. (Oral) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of Criminal Procedure in reference to judgment dated 22.4.1996, passed by Learned Sessions Judge, Shimla, H.P., in Sessions Trial No. 41-S/7 of 1995, under Section 302 of the Indian Penal Code, acquitting the alleged accused/respondent. 2. The prosecution case is that accused Hiru has two wives, namely, Smt. Gulabi and Smt. Asha. Both the wives of the accused were relatives. Initially, the accused was married to Smt. Gulabi, however, there was no issue from their wedlock, therefore, at the instance of Smt. Gulabi, the accused married with Smt. Asha, to whom two children were born. On 22.5.1995, at about 2.30 P.M., when accused was with his second wife Smt. 2 Asha in his room, Smt. Gulabi, first wife of the accused, started abusing the accused and Smt. Asha. On hearing abuses, the accused got enraged, however, before he could give beatings to Smt. Gulabi, she bolted the door of the room from outside, in which the accused and his second wife Smt. Asha were sleeping, but accused after breaking the plank of the said door came out and chased Smt. Gulabi with the handle of 'Axe' in his hand and after going some distance caught-hold of Smt. Gulabi and gave her beatings by 'danda' and killed her by throttling, thereafter, the accused went towards the fields, however, on receiving information by Gian Chand (PW.4), the accused brought the dead body of Smt. Gulabi (deceased) to the house and kept it in the Verandah adjoining to the kitchen of his house. On 23.5.1995, Gian Chand (PW.4) lodged a report at Police Station, Theog, regarding the murder of Smt. Gulabi. Accordingly, police came to the spot, took photographs and started investigation. On the disclosure statement of the accused, one 'danda', hidden in the bushes near the place of occurrence, was recovered. The police had also taken into possession the blood stained earth, broken door plank, clothes of the accused and that of the deceased, broken pieces of bangles etc. and sent the same for chemical examination. 3. After investigation, the accused was charged for the offence under Section 302 of the Indian Penal Code and the case was committed for Sessions Trial. In order to prove its case, the prosecution has examined as many as 18 prosecution witnesses. Whereas, the accused through his statement under Section 313 3 of Cr.P.C., has shown his innocence and denied the prosecution case. 4. On behalf of the prosecution, PW.1 Bhagat Ram, PW.2 Smt. Asha, the second wife of the accused, PW.3 Dr. Dalip Singh Tegta, who conducted the postmortem on the body of the deceased, PW.4 Gian Chand, PW.5 Lachhman Singh, Patwar Circle Kelvi, PW.6 Pushp Raj, Surveyor, HP P.W.D., PW.7 Vidya Nand, PW.8 Smt. Nomi Devi, PW.9 Rakesh, PW.10 Jeet Singh, PW.11 Rama Nand, the then, President of Kelvi Panchayat, PW.12 Constable Bhagwan Singh No. 609, Police Station, Theog, PW.13 S.H.O. Mohan Singh, PW.14 MHC Ved Prakash, PW.15 Head Constable Dhan Sukh, PW.16 Birbal Sharma, PW.17 S.I. Dhani Ram, investigating officer and PW.18 ASI Basti Ram, were examined. 5. After the investigation, the following materials were exhibited e.g. Ex. PW.1/A statement of Bhagat Ram, under Section 161 of Cr.P.C., Ex.PW.2/A statement of Asha under section 161 of Cr.P.C., Ex.PA Postmortem report, Ex.PB a report lodged by Gian Chand (PW.4), Ex.PC recovery memo, Ex.PD recovery memo, Ex.PE recovery memo, Ex.PF recovery memo, Ex.PG arrest report, Ex.PH tatima of the spot, Ex.PJ jamabandi Ex.PK site plan, Ex. PL statement of Vidya Nand under Section 161 of Cr.P.C., Ex.PM recovery memo, Ex.PN report (Form No.25-31 (1) (B), Ex. PO death report, Ex. PP, Ex.PQ, Ex.PR, Ex.PS, Ex. PU and Ex. PV photographs, Ex. PT statement of Nomi Devi under Section 161 of Cr.P.C., Ex.PW statement of Rakesh Kumar under Section 161 of Cr.P.C., Ex.PX recovery memo, Ex.PY 4 recovery memo, Ex.Pz disclosure statement of accused Hiru, Ex.PAA spot map, Ex.PBB seal impression 'DR', , Ex.PCC spot map, Ex. PDD FSL Report, Ex.PEE FSL report, Ex.P1 door plank, Ex.P2 Danda, Ex.P3 shirt, Ex.P4 Salwar, Ex.P5 Dathu, Ex.P6, Waist Coat, Ex.P7 shirt, Ex.P8 coat and Ex.P9 Paijama. 6. The postmortem on the dead body of Smt. Gulabi (deceased) was conducted by PW.3 Dr. Dalip Singh Tegta, who observed the following injuries in the postmortem:- 1. No evidence of poisoning was there . The body was medium built of female adult about 40 years age. She had long hair and was wearing brown jacket and all buttons of the jacket were intact. The shirt was reddish in colour and salwar was checkdar (stripe) and the salwar was torn from multiple area. The salwar was stained with mud. She was having silver coloured ring in left little finger. She was wearing Dathu of printed colour which had printed flower in the centre. She was not having socks and shoes, banian , underwear etc. The face was lightly turned on the left side and was bluish in colour (congested). There was bleeding from the nose i.e. right nostrils, right eye and mouth. 2. Injuries: There was contusion of the size 2cm x 2cm which was vertical in direction of the forehead, just above the right eyebrow. There was no fracture detected on the frontal bone. The second injury was multiple abrasion and contusion almost crescent in shape present in front of neck, bluish in colour. The third injury was teeth on right side of upper jaw which was profusely bleeding from first incised and second molar. The fourth injury was abrasion and contusion crescentry in shape in front of neck and on palpation there was cracking sound. On discretring the larynx , there was fracture of thyroid cartilage. In the centre of the cartilage there was fracture of hyoid bone. It was inward fracture of the one corner of the hyoid bone left side of conrnue of the hyoid bone left side of the larynx and it was congested. There was no ligature mark present. PW.3 has opined that the death was caused due to asphyxia i.e. throttling. PW.3 has also indicated that throttling in 5 this case had been done with both hands thereby pressing the neck i.e. front portion of the neck of the deceased. The contusion on the forehead could have been caused by 'danda' Ex.P2. The injury on the neck i.e. throttling was sufficient to cause death of Gulabi in ordinary course of nature. In cross- examination PW.3 has also indicated that deceased had fallen from a height then she would have sustained fractures, contusions, abrasions etc. However, PW.3 has not mentioned colour of nails in this case. PW.3 in his cross-examination, has further stated that it is correct that there will be change of colour of nails if the death is caused by asphyxia. PW.3 has also stated in cross-examination that there were bleeding from the nostrils, swelling of tongue, bleeding from the ears, congestion of the larynx, congestion of the internal organ such as liver spleen and kidney. PW.3 has further given opinion, if a person pressed the neck of the other person from the front, on the sides of the neck, then it will cause injuries to the larynx and it may also cause injuries to the sides of the neck. As such, PW.3 has mentioned that in the present case there was fracture hyoid bone later cornue which means it was on the front side of the neck. 7. PW.1 Bhagat Ram in support of the prosecution case has stated that when he was returning from market and going to his village, he saw deceased lying on the road and her clothes were stained with earth, and from that place, house of the accused is 25 meters. After going some distance PW.1 met Vidya Nand (PW.7) and Nomi (PW.8) and PW.1 told them that wife of the accused was lying on the road, thereafter, they came to the 6 spot and PW.1 went to his house, however, in the evening he came to know that Gulabi had died. PW.1 in his testimony, in cross-examination, has stated that he had not heard cries of Smt. Gulabi (deceased) and had also not seen the accused running after her and had also not seen that accused was giving beatings to the deceased by 'danda' and has also not seen accused pushing the deceased on the road. 8. PW.2 Smt. Asha, second wife of the accused, in support of the prosecution case, has stated that on 22.5.1995 i.e. on the day of occurrence, she had gone to the house of her parents for one night and she came on the next morning and she was not known as to what happened to Smt. Gulabi and how she died. PW.2 has further stated that nothing was enquired by the police from her regarding the death of the deceased. However, in cross-examination, PW.2 has stated that accused did not quarrel with the deceased and had not given beatings to her in her presence. Initially, in cross-examination, PW.2 has denied that after taking meal her husband (accused) had gone for sleeping and after hearing abuses by deceased, accused wanted to teach her a lesson. PW.2 has further stated that the door was closed from outside and after forcibly opening the door, the accused ran after the deceased and PW.2 had also not heard the cries of the deceased that she was being killed. PW.2 however, has stated in cross-examination that when she saw the face of the deceased and there was injury mark on her eyebrow and blood was oozing out of her nostril, however, she did not observe any injury mark on her neck and further stated that 7 clothes of Smt. Gulabi were stained with mud and earth. Her husband (accused) came back to home at about 5-6 P.M. PW.2 has further stated that injuries were caused to Smt. Gulabi on 22.5.1995 itself during the day time at about 2.30 P.M. She has further stated that after meeting her husband at about 5.00 P.M., on 22.5.1995, nobody was there except them. She did not have any talk at that time and PW.2 did not ask her husband as to how Smt. Gulabi had died. Subsequently, a different version was given by PW.2 in her cross-examination stating that her husband had told her that he had killed his wife Smt. Gulabi and that she should not tell to any one and he would keep her properly. She has seen the door plank Ex.P1 and it is of their kitchen. When Smt. Gulabi had made noise outside the kitchen room, her husband had broken the said plank of the door, and thereafter her husband had run after Smt. Gulabi. PW.2 has further stated that she can identify the 'danda 'which her husband had hidden inside his coat when he had gone after Gulabi in order to chase her. At this stage, one parcel containing six seals of seals impression 'DR' and the seals of chemical examiner has been allowed to be opened. She has seen 'danda' Ex.P1 and it is the same 'danda'. PW.2 in cross-examination, has also stated that she is illiterate. She does not know the names of English months and dates. She had gone to the house of her parents on 22.5.1995, at about 10 A.M., in the morning. She came back alone from the house of her parents on 23.5.1995 and had reached her house in the morning at 10 A.M. She also admitted 8 that Smt. Gubali got her married to the accused, accused used to give her and Gulabi clothes and food properly, Smt. Gulabi and Hiru (accused) had good relations with each other. She and Gulabi had also good relations to each other, the door Ex.P1 was already broken, i.e., it was already broken on the date of occurrence. Her husband did not break it, the accused did not drag Smt. Gulabi nor he gave any beatings to her, the 'danda' Ex.P2 does not belong to them, her husband is a agriculturist and they grow cabbage. The land of Mast Ram etc. is adjoining to their land. The aunt of accused is Jharki. Smt. Jharki had executed a gift deed, and her husband had filed a suit for cancellation of the gift deed and on account of the said cancellation suit, Naur etc. was against her husband. 9. PW.4 Gian Chand in support of the prosecution case has stated that on 22.5.1995 her wife woke him up and told that some one had died in the village, then PW.4 went to the house of the accused and saw that his wife Gulabi was lying dead in the Verandah of the house. Smt. Nomi and Vijay Nand were also present there. PW.4 has further stated that he saw the dead body from a distance of 20 feet and did not observe any injuries on her body and thereafter Pradhan was called. Then PW.4 and Pradhan went to the house of the accused. PW.4 has further told the Pradhan that dead body of Smt. Gulabi was lying in the Verandah, thereafter, PW.4 and Shyam Singh were sent by the Pradhan to Theog to inform the police. Accordingly, report was lodged. As per testimony of PW.4, he did not see Asha (PW.2), the second wife, of the accused at his house. 9 10. PW.5 Lachhman Singh, Patwari and PW.6 Pushp Raj, Surveyor are not the material witnesses. 11. PW.7 Vidya Nand has stated that on 22.5.1995, he was informed by Bhagat Ram that one lady was lying on the road. Thereafter, PW.7 and his mother Nomi went to that place and found deceased lying on the road, thereafter, accused was informed, who came to the spot and carried her to his house. However, PW.7 has not seen the accused assaulting the deceased. 12. PW.8 Smt. Nomi accompanied by PW.7 Vidya Nand, went to the spot and found deceased lying on the road and then PW.7 Vidya Nand informed the accused, who came to the spot and took away the deceased to his house. PW.8 had only observed the dead body of Gulabi on the road and had not seen the accused chasing the deceased or also not observed accused beating the deceased. In cross-examination PW.8, has stated that house of the accused is about 250 meters from the place where the dead body of Gulabi was lying. PW.8 is related to Smt. Asha, the second wife of the accused, as Smt. Asha is daughter of the real brother of PW.8, however, nothing material could be derived from the testimony of PW.8 except that she has seen the deceased lying on the road in dead condition. 13. PW.9 Rakesh has only stated that he saw the accused carrying his wife to his house on 22.5.1995, however, he has not observed any injuries on the body of the deceased. In cross- examination, PW.9 has denied that the accused has produced 10 'danda' Ex.P2 in his presence to the police, which the accused has taken out from the bushes near the place where dead body of the deceased was lying. 14. PW.10 Jeet Singh has stated that in his presence, on 22.5.1995, accused produced 'danda' to the police, which has taken out from the bushes. PW.10 has also seen Ex. PD. One tooth was also recovered which was lying on the road and the same was taken into possession vide recovery memo Ex. PY. In cross-examination, PW.10 has stated that bushes, from where 'danda' was recovered, were at a distance of 47 cms from the road. 15. PW.11 Rama Nand has stated that on enquiry from the accused, he told that she had fallen from the road down near village Shaul, as a result of which she had died. As per testimony of PW.11, accused has not disclosed that he has killed his wife. 16. PW.12 Constable Bhagwan Singh, PW.14 MHC Ved Prakash and PW.15 Dhan Sukh, in discharge of their official duty have shown their support to the extent they were assigned the role. 17. PW.16 Birbal Sharma has stated that in his presence accused has disclosed to the police that he has hidden 'danda' in the bushes and in that sequence 'danda' was recovered. 18. PW.17 S.I. Dhani Ram, Investigating Officer, has stated that accused made a disclosure statement in presence of Nand Kumar and Birbal that he had hidden a 'danda' in the bushes and on 25.5.1995, at the instance of the accused, 'danda' Ex.P2 was recovered from the bushes in presence of Rakesh 11 Kumar and Jeet Singh. As per testimony of PW.17 there were blood stains and hair on one side of the 'danda'. 19. PW.18 ASI Basti Ram was also associated in the investigation proceedings and has discharged the duty to the extent assigned to him. 20. On analysis of the prosecution witnesses and material on record, we notice that there is no direct evidence available in the present case and no prosecution witness has seen the occurrence. All the prosecution witnesses (except official witnesses and PW.3), have not supported the prosecution case to the extent they were expected to support. PW.2 Smt. Asha has given the contradictory version with uncertainty. Initially she has shown her ignorance about the incident. At some stage she has stated that her husband told her that he had killed his wife Gulabi and she should not tell to any one as she would be kept property. 21. Mr. Anil Jaswal, learned Deputy Advocate General has made the following submissions:- (i) Though the testimony of PW.2 Smt. Asha is not incoherency and despite the fact she declared hostile, however, her testimony to the extent, it supports the prosecution case, could be made reliable and on that basis the support could be taken in favour of the prosecution. (ii) PW.3 has indicated very categorically the cause of death of the deceased by asphyxia i.e. throttling and has also opined that by throttling done with both the hands thereby pressing the neck of the deceased i.e. front portion of the neck of the deceased , is the cause of death of the deceased. (iii) Circumstances reveal that PW.2 Asha had not gone to her parents' house on 22.5.1995, as her testimony reveals that she was present in her own house on 22.5.1995 when deceased had cried and given abuses to the accused and her and accused chased Gulabi (deceased). The medical evidence given by Dr. PW.3 supported by the relevant statement of PW.2, in terms of extra judicial confession of accused, is making the chain in support of the 12 prosecution case. 22. In support of his submissions, Mr. Anil Jaswal, Deputy Advocate General, has referred and relied upon a case law in Gura Singh versus The State of Rajasthan, 2001 (1) Crimes 34 SC, and has submitted that the extra judicial confession of the accused given to PW.2 Asha, as mentioned above, is to be taken as true in support of the prosecution case. 23. Mr. Jaswal has also relied upon the decision of Hon'ble Supreme Court in Rajendra and Another versus State of Uttar Pradesh, (2009) 13 SCC 480, and has submitted that even if PW.2 Asha has been declared hostile, however, her entire testimony may not be rejected and subjected to close scrutiny of portion thereof, as mentioned above, which is consistent with the case of the prosecution, may be accepted. According to Mr. Jaswal, since accused has made an extra judicial confession to PW.2, as such, extra judicial confessional statement of the accused is treated to be reliable to support the prosecution case. Extra-Judicial Confession (S.24 Evidence Act) 24. An extra-judicial made by an accused can be relied upon and conviction on the basis thereof can be recorded by the court only when following conditions are proved:- (i) The witness proving the extra-judicial confession must state in his testimony regarding the exact words used by the accused or in the words as nearly as possible in making the extra-judicial confession to such witness. (ii) Prosecution should prove the motive, occasion or reason for making extra- judicial confession by the accused. (iii) It should be proved as to why the accused reposed his confidence in the witness proving the extra-judicial confession and the connection or relation of the witness with the accused making extra-judicial confession. (iv) In case of non-judicial retracted confession it has to be seriously considered as to why the accused reposed confidence in the witness. 13 (v) The testimony of the witness deposing about confession should be credible. (vi) The circumstances under which the extra-judicial confession was made by the accused. (vii) It must be proved by prosecution that the extra-judicial confession was made voluntarily. See------ 1. State of A.P. vs. Shaik Mazhar, AIR 2001 SC 2427 2. C.K. Reveendran vs. State of Kerala, AIR 2000 SC 369 3. Ram Khilari vs. State of Rajasthan, AIR 1999 SC 1002 4. Tarseem Kumar vs. Delhi Administration, 1994 SCC (Cri) 1735 5. Kishore Chand vs. State of H.P. , AIR 1990 SC 2140 6. Heramba Brahma vs. State of Assam, AIR 1982 SC 1595. 25. The Hon’ble Supreme Court, from time to time, has made the following observations in the cases, as indicated below: (i) In Gubbala Venugopalaswamy & others V. State of A.P (2004) 10 SCC 120, the part of the evidence of hostile witness which is cogent and credible can be relied upon. (Para-9). (ii) In Ramappa Halappa Pujar V. State of Karnataka (2007) 13 SCC 31, when the witness has turned hostile by itself would not negate the prosecution case. (iii) In Jodhraj Singh V. State of Rajasthan (2007) 15 SCC 294, it is trite that only because a witness, for one reason or the other, has to some extent resiled from his earlier statement by itself may not be sufficient to discard the prosecution case in its entirety, therefore, keeping in view the materials available on record, it is permissible for a court of law to rely upon a part of the testimony of witness who has been declared hostile ( Paras 11 to 14 ). (iv) In Ramkrushna V. State of Maharashtra (2007) 13 SCC 525, the Courts are entitled to rely upon a part of the testimony of a witness who has been permitted to be cross examined by the prosecution and there is no error that the part of the testimony of a declared hostile witness cannot be relied upon (Paras 18,19 and 20). (v) In Rajendra V. State of U.P. (2009) 13 SCC 480, the evidence of testimony of hostile witness may not be totally rejected and subject to close scrutiny, a portion thereof which is consistent with the case of prosecution or defence may be accepted ( Paras 24 & 25 ). (vi). In Sucha Singh & anr Vs. State of Punjab (2003) 7 SCC 643, even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove the guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained. The Court has to separate grain from chaff and appraise in each case as to what extent the evidence is acceptable. If suppression cannot be done, the evidence has to be rejected in toto. 14 (vii). In Akhtar V. State of Uttaranchal (2009) 13 SCC 722, the testimony of hostile witness, in the facts and circumstances, can be relied upon to corroborate date, time and place of occurrence. (viii). In Mallappa Siddappa Alakanur V. State