IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 508/2003 Judgment reserved on 12.8.2009 Date of decision: 25 . 8. 2009 Tara Chand …..Appellant Versus State of H.P. ……Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . yes For the Appellant: Mr. N.K. Tomar, Advocate. For the respondent : Mr. Rajesh Mandhotra Dy. Advocate General, for the respondent. Surinder Singh, J. The appellant and his co-accused Dharam Pal were tried for the offences punishable under Section 302, 404, 420, 467, 468, 471 read with Section 34 of the Indian Penal Code, for committing the murder of Shri Amar Chand and also for cheating the officials of the U.C.O. Bank Rajgarh by dishonestly inducing them to deliver Rs. 5000/- from the saving account of the deceased by forging his signatures at the 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - instance of appellant by the above named co- accused. After a full-dress trial, Dharam Pal aforesaid was acquitted of all the charges framed against him for want of evidence and the appellant was also acquitted of all other offences except 302 of the Indian Penal Code, as such, he was convicted and sentenced for the aforesaid offence to undergo imprisonment for life and to pay a fine of Rs. 5000/- with a default clause. The appellant challenged his conviction and sentence for the aforesaid offence in this appeal, on law and facts. The factual matrix giving rise to the present appeal can be stated thus. Shri Amar Singh (hereinafter referred to as ‘the deceased’) was aged about 75 years. He had a landed property including an orchard at Ratauli in village Pabiana in sub-Division Rajgarh, District Sirmaur. In order to look after his property, he was living alone in a single storied house consisting of a room and a kitchen, whereas his wife was residing at Shimla with the family of his son PW-1 Dr. N.K. Verma, who was posted as Senior Medical Officer (S.M.O.) at Rampur-Bushehar. - 3 - On 23rd July, 2002, at about 6.30 p.m. Amar Chand was found murdered in his kitchen at Ratauli. On the same day in the evening, PW-2 Naresh Chauhan, Pradhan of Gram Panchayat Ser-Jagas informed the police telephonically about the murder. The police visited the spot. The son of the deceased (PW-1) was also contacted telephonically. By the time, the relatives of the deceased could reach, it became dark. During the intervening night of 23rd /24th July, 2002, said Shri N.K. Verma (PW-1) along with his brother-in-law PW-3 Bal Krishan, visited village Ratauli at the residence of the deceased. It was guarded by the police and the local persons. They found Amar Chand lying dead in his kitchen with a severe head injury. In the morning, photographs were taken and inquest report Ext. PW-1/A was prepared by the police in the presence of Dr. N.K. Verma and Naresh Chauhan, Pradhan. Lower part of the artificial denture of the deceased was lying on the spot and upper part was found in the mouth of the deceased. The dead-body was sent for autopsy to Civil Hospital Rajgarh. The report of post-mortem is Ext. PW-11/B. - 4 - On the examination of the dead-body, the doctor noticed the following injuries:- (i) Lacerated wound 1.5 cm x 0.4 cm over the upper end of right pinna with irregular margins and oozing of blood. (ii) Lacerated wound 2 cm x 1 cm x 0.1 cm with irregular margins over the base of right pinna on back side just opposite to external auditory meatus on right side with loosely clotted blood was present around. (iii) Lacerated wound with irregular margins on the right of occipital bone 2 cm x 1 cm x 0.5 cm Margins was not swollen. Wound was present 4 cm on the back of external auditory meatus. There was another injury two inches above the injury just mentioned lacerated 0.2 cm x 1 cm x 0.3 cm with irregular margins. No external injury on the scalp and face was present. Hair over the scalp white in colour was interspersed with black hair. On dissecting the scalp almost whole of the right and left side was found contused with multiple haemotoma underneath mainly over the regions of the depressed fractures. The doctor on further exploring - 5 - the above injury detected the fractures of left side occipital bone and right side temporal bone etc. as mentioned in P.M.R. It caused the instantaneous death and the time which elapsed between the death and post-mortem was within 36 hours. In the opinion of the doctor, deceased had died as a result of head injury, including a brain injury leading to shock asphyxia and cardio respiratory failure. The statement Ext. PW-1/B of Sh. N.K. Verma, was jotted down under Section 154 of the Code of Criminal procedure by the police, on the basis of which FIR Ext. PW- 14/B was recorded under Section 302 of the Indian Penal Code. On 27.3.2002, PW-1 Dr. N.K. Verma made a search of the house of his father to find out the cheque-book etc. He found the pass-book of his deceased father missing. After the post-mortem, he visited U.C.O. Bank, Rajgarh where his father was operating a savings bank account, to inform the bank officials that his father had expired on 23.7.2002. He was told by the Bank officials that a sum of Rs. 5000/- was withdrawn from the saving bank account of - 6 - his father on the same day, i.e., 23.7.2002, when he was found murdered. He informed the police about this fact. During the investigation, police got a clue that Tara Chand was engaged by the deceased to do his labour work in the orchard. On 23.7.2002 he picked-up a quarrel over the payment of his wages and hit him with a blunt weapon which caused his death. Further that the accused decamped with the pass-book of the deceased and met Dharam Pal co-accused at bus stand Rajgarh, who forged the signatures of the deceased on the withdrawal slip and withdrew Rs. 5000/- from his bank account. Thereafter appellant purchased C.D player and a cassette for Rs.3500/- from PW-9 Raj Kumar. On 27th July, 2002, Police took into possession the card bearing signatures of the deceased, the withdrawal form, against which Rs. 5000/- were withdrawn along with photocopy of the bank account vide memo Ext. PW-3/A from the bank Manager. The appellant was arrested on 2nd August, 2002. During the interrogation, he made disclosure statement under Section 27 of the Indian Evidence Act that after - 7 - withdrawal of the money from the Bank, he tore off the pass-book and threw it in the ‘ghasni’ and also that he had kept the ‘danda’ of pinewood, i.e., the weapon of offence in the corner of the kitchen of the deceased. Pursuant to this statement ‘danda’ Ext. P-7 was recovered. The ‘danda’ and human hair stuck to it were sent for the forensic examination as per report ‘danda’ contained traces of blood and hair found there upon was of human origin. Thereafter the appellant led the police to a ‘ghasni’ near Pabiana village and got recovered the torn pieces of the pass-book of the deceased from the grassy land. Police had taken the photographs and prepared the site plan of the place of recoveries. The signatures and writing of the appellant and his co-accused were obtained and sent for comparison of the government examiner of the question document. The Hand- writing Expert did not find it possible to express any definite opinion on the basis of material sent to him. The blood stained apparels of the deceased were also sent for the forensic - 8 - examination, which contained the human blood of “A” group, as per report Ext. PW-15/D. On 6th August, 2002, the appellant had also produced his pant Ext. P-33 and C.D. Player along with the cassette to the police which were taken into possession vide memo Ext. PW-8/A. His pant was also sent for forensic examination, it also contained the traces of the blood, as per the report Ext. PW-15/E. After completing the investigation, challan was presented in the court for the trial of the appellant and co-accused Dharampal. The appellant was convicted and sentenced, as aforesaid, whereas Dharampal co-accused was acquitted. We have heard the learned counsel for the parties and have carefully re- appraised the evidence on record. It is admittedly a case of ‘homicidal death’. There is no direct evidence of murder. This case totally hinges upon the circumstantial evidence. The strongest circumstance upon which the learned trial court heavily relied upon, is the recoveries effected by the appellant pursuant to his disclosure statement - 9 - recorded under Section 27 of the Evidence Act which connects him for causing the death of Late sh. Amar chand. In: Arun Bhagta @ Thulu v. State of West Bengal AIR 2009 SC 1228], the apex Court observed that for a crime to be proved, it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by the direct ocular evidence by examining before the court those persons who had seen its commission. But the offence can be proved by circumstantial evidence also. It also observed that the principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans i.e. the evidentiary facts and if taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. The apex court constantly laid down that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. - 10 - It is also well established that circumstances from which an inference as to the guilt of the accused is drawn, have to be proved beyond a reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from the circumstances. Further, where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring offences home beyond any reasonable of doubt. Please see also: Sharad Birdi Chand Sarda vs. State of Maharashtra AIR 1984 SC 1622], Applying the aforesaid principle of law in the case in hand, we proceed to reconsider the whole issue and reappraise the evidence to come to a rightful conclusion whether the findings arrived at by the learned trial court are against the weight of evidence on record or in other words perverse. As already stated above the strongest circumstance against the appellant is the recovery of danda Ext. P-7 which was broken at one end and human hair were found stuck to it and also the torn pieces of - 11 - pass-book Ext. P-8 from the ‘ghasni’ near Pabiana, made pursuant to the disclosure statement by the appellant. Section 27 is in the nature of an exception to the preceding Sections, particularly Sections 25 and 26 of the Indian Evidence Act. Section 27 of the Indian Evidence Act reads as under:- “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, as relates distinctly to the fact thereby discovered, may be proved.” [Emphasis ours] After having a short and swift glance on the above provision the Supreme Court in Mohmed Inayatullah vs. The State of Maharashtra [AIR 1976 SC 483] reminded the requirements of Section 27, and in para 11 held as under:- “The expression “Provided that” together with the phrase “whether it amounts to a confession or not” shows that the section is in the nature of an exception to the preceding provisions particularly Sections 25 and 26. it is not necessary in this case to consider - 12 - if this section qualifies, to any extent, Sec. 24 also. It will be seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only “so much of the information” as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word “distinctly” means “directly”, indubitably” “strictly”, “unmistakably”. The word has been advisedly used to limit and define the scope of the provable information. The phrase “distinctly” relates “to the fact thereby discovered” (sic) (and?) is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of - 13 - that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered.” Thus, the statement made by the accused while in police custody during investigation is relevant under Section 27 of the Indian Evidence Act only if the following elements are present: a) That any fact is discovered consequent to such statement; b) That this fact was not known to the Investigating Officer prior to the statement having been made and this fact is connected with the crime in question. c) That the person giving such information should be charged of any offence and should be in police custody for the said charge and the discovered/revealed fact is related to such charge. Before proceeding further, precisely it is necessary for us to be clear about the statement, which has been made by the appellant to the police officer. This statement is incorporated in the Panchnama Ext. PW-4/A. Its - 14 - translated version in English reads as under:- “I have kept a pinewood ‘danda’ inside the kitchen of Amar Chand in one corner and have torn the pass- book and thrown the same in a ‘ghasni’ (grassy land) near Pabiana village. I can lead to the place and get it recovered after pointing out the place.” The aforesaid statement was given by the appellant while in custody, to the police in presence of PW-4 Kalyan Singh. Although, he was declared hostile. He was permitted to be cross-examined by the learned Public Prosecutor to test his veracity. He admitted that the appellant disclosed to the police that ‘danda’ of cheel (pine-wood) was kept by him in the kitchen of Amar Chand deceased, which he could point out at the spot and further disclosed that the pass-book was torn by him, which was thrown at Pabiana and could locate the place. In cross-examination, by the accused, he stated that the appellant told also the police that he had killed Amar Chand in his house with cheel (pine-wood) ‘danda’ which was kept in the kitchen. His role ends here. - 15 - Thereafter, the appellant led the police firstly to the residence of the deceased at Ratauli. PW-5 Bhoop Singh ex- Pradhan and Dalip Singh are the witnesses of recoveries. Bhoop Singh testified on oath that the appellant produced ‘danda’ Ext. P7 from the kitchen of the deceased from amongst the woods already lying there. The ‘danda’ was sealed and taken into possession vide memo Ext. PW-5/A. Thereafter, appellant led the police to a ‘ghasni’ near Pabiana, which was located besides a bridle path and got recovered the torn pieces of the pass-book Ext. P8 of saving bank account No. 5607 pertaining to the deceased, which were sealed by PW- 15 S.I. Lachhman Dass, who had recorded the statement of the accused aforesaid and effected the recoveries in the presence of above witnesses. Lachman Singh S.I. aforesaid stated in the cross-examination that the ‘danda’ was lying at the house of the deceased from the date of his death and there were other dandas like Ext.P-7, which is also the case of the prosecution. The accused can be said to have left the danda mixed with other similar type of - 16 - danda which is also a “concealment” with in the meaning of section 27 of the Evidence Act. Ext. P7 aforesaid was found to be blood stained and there were human hair stuck to it. He had a special knowledge of the fact recovered. The plea raised by the learned counsel for the appellant that the danda was planted by the police, its recovery has been shown from an open place accessible to all is worth rejecting in the background of the above facts and it would not vitiate the evidence under Section 27 of the Evidence Act. Similar plea is raised with respect to the recovery of the torn pieces of pass-book which contains the name and account number of the deceased, which is also of no consequence for the reason stated above. Thus we do not find any merit in this contention, hence rejected. It is contended by Sh.Tomar that the danda was already lying in the kitchen and the pieces of pass-book were lying on the Ghasni near Pabina near a bridle-path and it cannot be said that these facts were discovered consequent to the statement made by the accused. In our - 17 - considered opinion, the mere presence of the article at the site of the occurrence or at any other place is not sufficient to hold that the fact has not been discovered consequent to the statement. Though an article may be lying, the Investigating Officer may not have any knowledge that such article is connected with the offence. In the present case admittedly there were number of dandas lying in the kitchen. It was not within the knowledge of the Investigating Officer as to whether the weapon used to kill the deceased was one of the dandas lying there. Similarly the Investigating Officer or any other person had no knowledge that the pieces of paper lying on the road were the pieces of a pass-book. However, these facts were within the special knowledge of the accused and it is these facts connecting the articles with the offence which bring the discovery of this fact within the ambit of Section 27 of the Indian Evidence Act. Even on sifting evidence, we find that when the police reached the spot, on getting the information of the murder of - 18 - the deceased, they photographed kitchen where the dead body was lying Exhibit of photographs are P-40 to 43. The danda Ext. P7 is shown lying there in photograph Ext. P43. Some char-wood and another danda were also lying at a distance. At that time neither the police know that it was a weapon of offence nor the offender was known. Subsequently, when the appellant was arrested, the accused-appellant pointed out the same ‘danda’ Ext.P7 shown in photograph Ext. P43 above, the end of which was broken even the doctor Yash Paul PW11 stated that looking at the injury the danda could brake, clearly connects it with the commission of the crime. Further the recovery of torn pieces of pass-book lends strength to the case of prosecution regarding the involvement of the appellant with the crime. He has failed to explain these important circumstances. How and why the appellant had acquired the possession of pass-book and why he tore it off and threw it on the land covered with the grass at a secluded place regarding which only he had the knowledge. Thus in absence - 19 - of any explanation the recoveries connect the appellant with the injury caused to the deceased which led to his death. Further he had also produced his blood stained pant to the police, which contained the human blood as revealed by the forensic report. This evidence is also relevant under Section 8 of the Indian Evidence Act which stands proved beyond a reasonable doubt. Once this conclusion is reached, the fatal injury caused to the deceased becomes attributable to the appellant who was a young man of about 21 years. Now it has to be seen, what offence the appellant has committed whether it is ‘murder’ or ‘culpable homicide’ not amounting to murder? According to the learned Deputy Advocate General, it is a case falling under Section 302 of the Indian Penal Code. But the learned counsel for the appellant submitted that at the worst it is a case falling under Section 304-II of the Indian Penal Code. We have thoroughly considered the above submissions. The death of Amar Chand is proved to be a culpable homicide as - 20 - also stated by PW-11 Dr. Yash Pal Sharma, who conducted the autopsy which went in unchallenged. We have also noticed in photographs Ext. P-33—to P-40 Ext. P-7 danda was found broken from one end wherein the human hair were also found stuck. As already stated supra the doctor opined that the impact of injury on the head could break the danda and this injury was proved to be fatal. In the instant case, there is no evidence that there was a premeditated attack. The dandas like Ext.P7 were already available in the kitchen itself. Further the prosecution has failed to establish any malice attributable to the appellant. The fatal injury is one, that too on the head which must be the result of the impulsive attack by the appellant with a pine-wood ‘danda’ with the intention that it was likely to cause death of the deceased, thus in view of the ratio of the judgment of the supreme Court Siri Kishan and others versus State of Haryana JT 2009 (8) SC 305, it is a case - 21 - falling under Section 304-I of the Indian Penal Code. Accordingly we set aside the conviction and sentence of the appellant for the offence punishable under Section 302 of the Indian Penal Code and convert it while holding him guilty of the offence punishable under Section 304-I of the Indian Penal Code. Thus, the appellant stands convicted for the said offence and is hereby sentenced to undergo the rigorous imprisonment for a period of seven years without disturbing the fine as imposed by the learned trial court, with a default stipulation. The appellant shall be entitled for a set-off as per the provisions of Section 428 of the Code of Criminal Procedure. Ordered accordingly. In the result the appeal is allowed to the aforesaid extent. The learned trial court is hereby directed to issue the amended warrants to - 22 - the jail concerned in tune with the judgment of this court. The matter is accordingly disposed of. Send down the records. (Deepak Gupta), Judge. (Surinder Singh), Judge. August 25,2009. (cm)