IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 514 of 2002 Date of Decision 8th September, 2011 ________________________________________________________ State of Himachal Pradesh ….Appellant Versus 1. Shri Hem Singh, son of Shri Sukh Ram, 2. Smt. Santosh Kumari, wife of Hem Singh Residents of Khanyor, Police Station Sundernagar, District Mandi HP ….Respondents. Appeal under Section 378 of the Code of Criminal Procedure. ________________________________________________________ Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 ________________________________________________________ For the Appellant: Mr. R.K. Sharma, Sr. Additional Advocate General with Mr. Rajinder Dogra, Addl. A.G. For the Respondents: None. __________________________________________________________________ Dev Darshan Sud, J.(oral) This appeal has been preferred by the State against the judgment of the learned Sessions Judge, Mandi passed in Sessions trial No. 33 of 2001 acquitting both the respondents for offences under Sections 302 and 201 IPC. 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 2. The first respondent Hem Singh was charged for committing the murder of Smt. Durgi Devi and the second respondent, his wife, for offences under Section 302 IPC and disposing of the corpus delicti. 3. The prosecution case is that Hem Singh accused is the son of PW2 Sukh Ram and real brother of PW1 Chander Parkash. The accused was adopted by Gurdas Ram, brother of the father of the accused and his wife Durgi Devi whose murder is supposed to have been committed. Gurdas Ram had died ten years prior of the occurrence. Hem Singh had built a separate house and was residing with his family in that house after the death of his adoptive father while Durgi Devi deceased was residing in the old house and working as a daily wager in the Forest Department. On 7.4.2001 Durgi Devi was seen by the villagers going towards the common tap to fetch water in the bucket she was carrying and thereafter she was never found. Next day in the afternoon, PW2 Sukh Ram was informed that Durgi Devi was not in the house and it was locked. He proceeded to her work place, inquired about her as also from the villagers etc. but he could not trace her and as such he informed the Panchayat. The prosecution case is that the accused was also questioned about the whereabouts of the deceased, but he professed his ignorance. Thereafter, report Ext.PD was lodged with PW13 H.C. Amar Singh on 9.4.2001 at around 3.15 PM. The prosecution case further is that on 13.4.2001 PW2 Sukh Ram and PW1 Chander Parkash learnt that her dead body had been recovered from the Sutlej river. The police was informed, who prepared the inquest report and the body was sent for post- 3 mortem. On the next day, villagers gathered in the school ground when Hem Singh confessed regarding the fact as to how Durgi Devi had died. He is alleged to have confessed in their presence that he had strangulated her and disposed of the body in the Sutlej river. The case is that he had admitted this in the presence of Pardhan and Up-Pardhan. In the evening of that day, the police visited the village and report Ext.PC was lodged with the police. 4. The prosecution then relies upon the evidence of PW3 Sant Ram, PW4 Jeet Ram, PW5 Roshan Lal, PW6 Shiv Ram and PW1 Chander Parkash, who had lodged the report that confession was in fact made by accused Hem Singh in their presence. During investigation, a gunny bag was recovered at the instance of accused in which dead body is alleged to have been carried and thrown into the river by him and police took into possession the ash etc. PW9 Dr. Devinder Singh performed the post mortem and proved the report Ext.PL stating that injuries on the neck of the deceased, were possible if pressure is applied to the neck with a dupatta. This, in a nutshell, is the prosecution case. 5. The most important piece of evidence relied upon by the prosecution is the confession made by the accused Hem Singh. For this purpose, the learned Court below relied upon the statement of PW1 Chander Parkash, the real brother of the accused, who states that his uncle (Taya) had adopted the accused and he had been brought up by his late Taya and Tai (paternal aunt). He states that the accused was residing with his wife separately. On 7th April, 2011 he learnt that his Tai had gone 4 to fetch water from a public tap, but she was not seen thereafter. She was not traceable and as such, he lodged a report with the Panchayat next day. Thereafter, his father lodged a report and on 13.4.2001 the dead body of Durgi Devi was recovered from Sutlej river. He says that in the presence of all persons who had gathered in school ground, the accused had confessed that he was responsible for the killing. The Pardhan and Up-Pardhan also questioned him and he confessed his guilt. PW2 Sukh Ram also stated with respect to the report with the Panchayat etc. and lodging of the report with the police Ext.PD. He then says that on 14.4.2001 the dead body of Durgi Devi was kept in the school ground and on persistent queries of the villagers, he had confessed his guilt. PW3 Sant Ram is the President of the Panchayat, who corroborated the evidence of PW2 Sukh Ram who reported that Durgi was not traceable. He advised PW1 Chander Parkash and PW2 Sukh Ram to lodge the report with the police. He says that 200-250 people assembled in the school insisted that they would not allow the body to be cremated till the police came there and it was then that the accused confessed his guilt. 6. To similar effect are the statements of PW4 Up- Pardhan Jeet Ram, PW5 Roshan Lal, PW6 Shiv Ram. PW9 Dr. Devinder Sharma has proved the post-mortem report Ext.PL. He states that body was accompanied by inquest papers Ext.PA and Ext.PB. His opinion about the death was: “External appearance A well built body of an old female lady with white grey hair dyed with henna, measuring 5 feet and 2 inches from vertex to heel, wearing a yellow printed salwar, protrusion of swollen 5 tongue and swollen lips, protrusion of eye balls, ear and nose filled with clotted blood, whole of face was fuffy and oedomentus and cyanotic, patechial hemorrhages present on the forehead, eyelids and behind the ear. Multiple contusions, greenish yellow in colour were present on the anterior side and lateral sides of neck. All the contusions were ante mortem in nature as they were less defined. The muscles of the neck were bruised and were yellowish in colour. Stenocleidomastoid muscle on the right side was torn. Fractures of Larynx, trachea and hyoid bone were present. Rigor mortis had disappeared in all the muscles of the body. Post mortem lividity was present on the upper back, sacrum and calf region. Washerman skin of palms and soles was present. Whole of the body was soiled with silt particles. Thorax The walls were in the early stage of putlifaction. Ribs and cartilages were normal. Pleurae were congested. Larynx and trachea were congested. Fracture of larynx and trachea was present. Both the lungs were congested. Pericardium was congested, otherwise normal. Right side of the heart was filled with the blood. Left side was empty. Abdomen Wall were in early stage of putrification. Peritoneum was congested. Mouth was containing swollen protruding tongue, haemorrhages present in pharynx and oesophagus. Stomach was congested and was empty. Small intestine was congested and filled with semi digested food particles and gases. Liver was congested. Spleen and kidneys were congested. Bladder was congested and was empty. Organs of generation were well developed and were normal. Muscles, bones and joints. Sternocliedomastoid muscle of right side of neck was torn. Fracture of larynx, trachea and hyoid bone was present. 6 In my opinion, the deceased died due to asphyxia as consequence of compression of the neck. The time that lapsed between and death was instantaneous and between death and postmortem was more than five days. I handed over the reconstituted body and copy of postmortem report to the police. The request of post mortem examination is Ext.PK which bears my initials. He issued post mortem report Ext.PL. He stated that compression on the neck of the deceased is possible with the hands. The injuries were ante mortem in nature and are possible with pressure and Dupatta. The injuries on the neck were sufficient to cause death in ordinary course.” 7. The extra judicial confession purportedly made voluntarily by the accused and the fact that the deceased had been killed by drowning were urged as important links in chain of evidence to urge that the accused was guilty. The learned Sessions Judge adverting to the evidence holds that there is no evidence to show that the accused had strained relations with her adoptive mother (Durgi Devi) or that his wife had differences with her. There is also no evidence to suggest that she had executed any Will etc. or initiated any step to disinherit the accused from the estate which he would have inherited on her death or had instituted any other proceedings etc. The evidence of PW1 Chander Parkash was not relied upon for the reason that the accused and this witness were brothers. They were not on visiting terms. Their relationship was far from cordial, both of them were litigating against each other. In fact, the learned Court rightly held that there were serious disputes between the accused and his brother and father with respect to some property matters. The Court therefore holds that there was no reason for the accused to have taken the extreme step of killing 7 Smt. Durgi Devi. On the extra judicial confession the Court holds and rightly so that the confession was made at the time when the police was present. 8. Adverting to the evidence of PW3 Sant Ram, we find that though he has been very graphic in describing as to how the murder was committed and that the police had arrived on the spot where the body of deceased was kept, he admits in his cross examination: “………I have a talk with Sukh Ram on 9th only in regard to the suspicion. The police was present there when the accused confessed about his involvement in presence of 250 or 300 persons. Re-examination by P.P. I have stated correctly in my cross examination that the police was present when the accused confessed before 200/250 people and my statement in examination chief is incorrect that the police came after 1/1 ½ hours of the confessional statement.” 9. To similar effect is the statement of PW4 Jeet Ram who corroborates PW3 Sant Ram, who then states: “……..I came to know on 13th that the dead body had been recovered. I reached in the village of the accused at 3 p.m. and the police people were already there. It is correct that the accused made a confessional statement in the presence of the police as I and police both reached at the spot at 3 p.m. I have not heard any dispute between the deceased and the accused earlier to the date of occurrence………” 10. PW5 Roshan Lal though corroborates the confessional part in his examination in chief, states that he could not tell when the police arrived and who was present. PW6 Shiv Ram says that confessional statement was made by the accused in the presence of the villagers and at that time Roshan Lal, Kala 8 Ram and Chander Parkash were saying that accused had killed Durgi Devi. 11. Turning to the statement of PW2 Sukh Ram we find that he does not corroborate the factum regarding the confessional statement having been made since he says that the people, who were inquiring from the accused, had told him that he (the accused) has made confessional statement. His evidence at best is hearsay. So far as PW1 Chander Parkash brother of the accused is concerned, the learned Sessions Judge holds and rightly so that he had his own axe to grind, as he is inimical to the accused and there is pending litigation between him and the accused and their father. 12. In case the petitioner had confessed that he had murdered Smt. Dugri, there could not have been any dearth of evidence as the prosecution case is that there were 200 to 250 villagers who were present on the spot. Anyone from this crowd before whom such confession was made could have been produced in evidence, but we find that no such effort has been made by the prosecution. We also note that there was no reason for the accused to have murdered his adoptive mother. In fact such an act would have led to the direct consequence of the accused being disinherited from her estate. We find no perversity in the appreciation of evidence by the learned trial Court or in the conclusion arrived at by it. The view taken by the learned Sessions Judge is in accordance with law and the evidence on record. There is thus no merit in this appeal, which is accordingly 9 dismissed. Bail bonds furnished by the accused/respondents stand discharged. (R.B. Misra) Judge September 8, 2011 (Dev Darshan Sud), ms Judge