1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 183 of 1994. Date of Decision: 11-4-2008. ____________________________________________________________ State of H.P. ……..Appellant. Versus Nirmala Devi and another. ……..Respondents. Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? .Yes For the appellant : Mr. P.M. Negi, Deputy Advocate General. For respondents : Mr. K.C. Rana, Senior Advocate with Ms. Uma Manta, Advocate. ______________________________________________________________ Surjit Singh, J. (oral) State has appealed against the judgment of Sessions Court whereby respondents Nirmala Devi and Chain Singh, who were charged with and tried for offences under Sections 302 and 301, I.P.C., stand acquitted. The case of the prosecution, as per evidence led by it during the course of the trial is like this. Deceased Geeta Devi, aged about fifty years, was married to Chattar Singh. She could not bear any child. Her husband Chattar Singh went in for a second marriage. He married respondent Nirmala Devi. The couple had four children. Nirmala Devi and her husband used to reside at Ludhiana where Chattar Singh was employed. After marrying Nirmala Devi, Chattar Singh deserted Geeta Devi. She was left in the village. Initially she was allowed to cultivate his land, by her husband Chattar Singh, but, after some time, the land was given for cultivation to some other person. Geeta Devi, left with no means of sustaining herself, Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 started doing odd jobs at the places of other persons. After some time, she filed a petition under Section 125 of the Code of Criminal Procedure in the Court of Judicial Magistrate Ist Class against Chattar Singh. The Magistrate awarded monthly maintenance allowance at the rate of rupees 150/-. Chattar Singh who was present before the Magistrate on 1-10-1991, paid a sum of rupees 500/- as part of arrears of maintenance. He did not have the money to pay the remaining amount of arrears, which it appears was rupees 4300/-. He took time for paying the same. The matter was fixed for 4-10- 1991, on which date Chattar Singh and deceased Geeta Devi appeared before the Magistrate. Chattar Singh paid rupees 4300/- to Geeta Devi who then went to the village of her husband, where she lived in one room, provided to her by her husband. The other portion of the house of which that room formed a part, remained with her husband Chattar Singh where respondent Nirmala Devi used to reside during her visits to the village. She used to visit the village for a month every year. Deceased Geeta Devi was seen in the village last on 4-10-1991 by Sandhya Devi (PW6). Thereafter she was not seen by any body. A few days before that she had visited her sister’s son-in-law Karnail Singh (PW2) in a different village. She returned from said Karnail Singh’s place telling him that, she would be back within a week to assist him in thrashing maize crop. When she did not return to Karnail Singh’s place, as promised, the latter started searching for her. He went to her house but found her room locked. He informed Behari Lal (PW3), Pradhan of the Panchayat who asked him to lodge report with the Police and also to search for her. Matter was reported to the Police on 17- 10-1991 by Karnail Singh. As per that report, copy Exhibit-PB, the deceased had been missing since 5-10-1991. On 21-10-1991, Assistant Sub Inspector Shakti Chand (PW16) went to the village of the deceased in connection with routine patrolling. At 10.00. a.m, Karnail Singh made a statement to him, which was recorded 3 under Section 154 of the Code of Criminal Procedure. The record of the said statement is Exhibit-PC. In this statement, Karnail Singh expressed the suspicion that Nirmala Devi being a co-wife of Geeta Devi, was not having good relations with her and that he suspected that she might have killed her. The said statement was sent to the Police Station for formal registration of the case. Thereafter, Nirmala Devi accused was taken into custody. She was interrogated in the presence of Behari Lal (PW3) and one Mohan Singh. She made a disclosure statement that she had dumped the dead- body of Geeta Devi in a pit in the nearby forest with the help of her co- respondent Chain Singh and filled that pit with earth and stones. She then led the police party to the pit and got recovered the dead-body in the presence of Attar Singh (PW5) and two more persons named Surinder Kumar and Maghar Singh. Inquest was conducted. Dead body was sent to the Hospital for post-mortem examination. Dr. Anil Kumar (PW1) conducted the post-mortem examination on 22-10-1991. He noticed fracture of right temporal bone on the dead-body and gave the opinion that the cause of death was a head injury. He could not express any opinion about the time lag between the injury and the death. However, he gave definite opinion that the death had taken place between three to five days of the conduct of the post-mortem examination and even reiterated this opinion when approached by the Investigating Officer again to know whether his earlier opinion given in the post-mortem was correct. Prosecution tried to prove that there was a strong motive for the killing of the deceased by respondent Nirmala Devi her co-wife. Evidence was also led to prove that the dead body was recovered at the instance of the respondent. By proof of these two circumstances, the prosecution sought the conviction of the respondent Nirmala Devi. We have gone through the record and heard the learned Deputy Advocate General as also the counsel representing the respondents. 4 So far as the motive part of the story of the prosecution is concerned, the evidence on record does suggest that there was no love lost between the deceased and the respondent and the latter might have thought of killing her. However, the evidence with respect to other circumstance, i.e, recovery of the dead-body is highly doubtful. The Investigating Officer of the case, namely, PW16 Shakti Chand testified that the respondent was arrested on 21-10-1991 after PW2 Karnail Singh made the statement Exhibit-PC expressing suspicion against respondent Nirmala Devi. The statement purports to have been made by Karnail Singh (PW2) on 21-10- 1991 at 10.00 A.M. The testimony of PW2 Karnail Singh as also PW3 Behari Lal, in whose presence the alleged disclosure statement was made, suggests that the Police reached village Dole accompanied by respondent Nirmala Devi and her husband Chattar Singh at 8.00 or 9.00 in the morning on 21-10-1991 and told the gathering that they had already traced the culprit and respondent Nirmala Devi had confessed her guilt. The testimony of these two witnesses gives a complete lie to the statement of Shakti Chand (PW16) that he arrested respondent Nirmala Devi, after recording statement Exhibit-PC and thereafter, interrogated her and the latter made the disclosure statement leading to the discovery of the dead-body. Photographer Piar Singh (PW8) also stated that he was called to the Police Post at 7.30 a.m. and from there, he was taken in a Police tempo to a place called “thirty-two miles”, where they boarded a Truck and went to village Dole. He stated that when they travelled by the police tempo and the truck, respondent Nirmala Devi and her husband Chattar Singh were also with them. This fact strengthens the view taken by us, based on the testimony of Karnail Singh (PW2) and Behari Lal (PW3) that the story put-forward by A.S.I. Shakti Chand (PW16) that he arrested the respondent in the village after recording the statement Exhibit-PC and thereafter she made the 5 disclosure statement, is incorrect. As a matter of fact, from the testimony of Karnail Singh (PW2) it is made out that the respondent had been in the custody of the Police even on the previous day, i.e, 20-10-1991 when she was brought from Ludhiana in the after-noon at about 3.00 or 4.00 P.M. The witness stated that she was interrogated on 20-10-1991 but she made no disclosure statement. In view of the above stated position, we see no reason to dis-agree with the findings of the trial Court that the evidence regarding recovery of dead-body at the instance of the respondent Nirmala Devi, is highly doubtful. Before parting with the judgment, we would like to make an observation about the view taken by the trial Court that the alleged disclosure statement of Nirmala Devi is otherwise also not relevant or a permissible piece of evidence. The trial Court has observed that the evidence on record suggests that the alleged disclosure statement was made by Nirmala Devi not to the Police but to private persons when she was not in custody and, therefore, it is not covered by the provision of Section 27 of the Indian Evidence Act. The view taken by the learned trial Court betrays total ignorance of the rationale behind the provision of Sections 25 to 27 of the Indian Evidence Act. The aforesaid provisions in the Indian Evidence Act, are based on the premise that the police officials, during the course of investigation, may concoct the evidence regarding confession by the accused. It is for this reason that Sections 25 and 26 of the Indian Evidence Act provide that statement made by a person, accused of an offence, to the Police officer or while in custody of the Police, cannot be proved. Section 27 is an exception to these two provisions. It says that so much of a statement made by a person accused of an offence which leads to the discovery of a fact, can be proved. The Evidence Act no-where provides that if a person accused of an offence makes a confession or a 6 statement leading to the discovery of a fact to a private person, when he is not in the custody of Police, cannot be proved. Such a statement would be relevant piece of evidence as extra-judicial confession and also as evidence of the conduct of the accused or as an admission under the relevant provisions of the Evidence Act. As an upshot of the above discussion, the appeal is dismissed being without merit. (Surjit Singh) Judge. (Surinder Singh) Judge. April 11, 2008. (bm)