IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 607 of 2002 Judgment Reserved on 1st September, 2011 Date of Decision 30th December, 2011 ________________________________________________________ State of H.P. ….Appellant Versus Sadhu Ram @ Juthi ….Respondent. ________________________________________________________ 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 Respondent: Mr. Anup Chitkara, Advocate. __________________________________________________________________ Dev Darshan Sud, J. This appeal has been filed against the judgment of learned Sessions Judge, Shimla acquitting the respondent who was charged for offences under Section 302 IPC. The prosecution case, in brief, is that on 10th May, 2001 at around 8 AM the respondent is alleged to have committed the murder of Jaithu Devi in village Bohar, under Police Station Chopal. 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 2. The prosecution case proceeds that Khaju Ram (PW3) informed the police that on 9.5.2001 his mother Jaithu Devi was killed by a mad person namely Juthi alias Sadhu Ram, the respondent. H.C. Phool Singh sent this information to the Police Station Chopal which was entered in the Daily Dairy at Sr. No. 17, dated 10.5.2001. On 11th May, 2001, ASI Pat Ram PW9 went to the site of crime. Statement Ext.PA of Kirpa Ram PW1 was recorded under Section 154 Cr.P.C. Kirpa Ram stated that he was living in Dogri (hut ment) which was situated at a distance of 500 metres from the hut ment of the deceased. At around 8 AM in the morning, Sadhu Ram accused proclaimed loudly “maine Jaithu Devi ko mara hai.” (I have killed Jaithu Devi.) He ran towards the hutment of Jaithu Devi and when he was about 100 metres away, he saw that the accused was dragging her dead body towards the ledge. When he reached the hutment of Jaithu Devi, he found her dead body lying below the ledge. There was blood all over the face of Jaithu Devi. Bija Ram was cutting grass nearby. He immediately came to the spot. He asked Bija Ram to give this information to PW3 Khaju Ram. PW2 Bija Ram returned at 9 or 10 O’clock in the morning and was accompanied by Khaju Ram PW3, Dhangu Ram, Parma Nand, Bhup Ram and Guman Singh, all resident of village Bhatgar. He had detained the accused and in their presence he (accused) said “maine mara” (I killed.) Thereafter, Khaju Ram PW3 went to lodge a report with Police Post Nerwa which is at a distance of 27 Kms from the bus stop, Gumma. He says that the police came to the spot on 11.5.2001 and investigation commenced. During the course of investigation, a Phukna (iron pipe used for blowing air 3 to ignite fire) was found lying at a distance of 10 feet from the dead body, which was taken into possession by the police. Vide seizure memo Ext.PB, as also stones etc. Inquest reports Ext.PD and Ext.PD/1 were recorded and prepared by PW9 Pat Ram, photographs of scene of occurrence were also taken and a rough sketch plan Ext.PJ was prepared. The post mortem of the dead body of the deceased was conducted on 12.5.2001 at 11 AM in Civil Hospital, Chopal by Dr. Shyam Lal Chauhan PW11 who proved the report Ext.PM. Clothes of the deceased, Phukna Ext.P1, stone Ext.P2, bangles and finger ring found on the dead body were sent for chemical examination. Vide Ext.PK which is the opinion of the Assistant Director of Forensic Science Laboratory, Junga, blood was found present on the clothes seized by the doctor as well as Phukna Ext.P1, origin of the blood could not be ascertained. Presence of human blood was found on the bangles, finger ring and the stone Ext.P2. Nothing incriminating was found present in the viscera of the deceased according to report Ext.PL. On completion of investigation, the accused was arraigned for offence under Section 302 IPC. 3. The prosecution examined 11 witnesses in support of its case. Kirpa Ram PW1 has supported the version narrated by him to the police. PW2 Bija Ram, according to PW1 Kirpa Ram was present and he was cutting grass and trees leaves near the hut of the deceased, but he has not supported the prosecution case with respect to the extra-judicial confession which the accused is alleged to have made in front of Khaju Ram PW3 or when all persons present on the spot confronted him with the fact regarding the murder of Jaithu Devi. This witness was 4 declared hostile by the prosecution. In reply to Court question, he stated that his statement that nothing was spoken by anyone when he went to the spot is incorrect. The learned Court records that this witness was unable to explain the discrepancy made in his statement. 4. PW3 Khaju Ram supports the prosecution case. PW4 Parma Nand who also reached the scene of crime alongwith other inhabitants of the village has not supported the prosecution case. Though he was cross examined by the prosecution but nothing was established from his testimony in cross examination to support the conviction. 5. PW5 Binder Singh is resident of village Bohar has not supported the prosecution case. The other witnesses are the police officials who investigated the case. It was submitted before the learned trial Court that the evidence of the witnesses more especially PW1 Kirpa Ram, cross examination of PW2 Bija Ram, testimony of PW3 Khaju Ram and the forensic evidence on record have supported the prosecution case. The learned trial Court, on the evidence on record, acquitted the accused on all points by holding that no material facts have been proved by the evidence to establish the guilt of the accused. 6. Adverting to the testimony of PW1 Kirpa Ram, the Court noticed that the accused was present in the dogri (hut) at around 8 O’clock when he heard that the accused while calling out the name of the witness proclaimed that he had killed Jaithu Devi. Kirpa Ram rushed towards the hut of the deceased and when he was at a distance of about 100 metres, he saw that the accused was dragging the dead body and threw it away below 5 the ledge. In the Inquest report, it was found that face of the deceased was covered with blood, deep wound on the forehead, cheek bones were broken, there was presence of fresh injuries on the right side of the forehead. 7. The medical evidence does not support this report Ext.PD as according to the post mortem report Ext.PM, no injury except compound fracture of frontal bone with intracranial haemorrhage was found by Dr. Shyam Lal Chauhan PW11. He states that the deceased died of comma following head injury probably by a blunt weapon. To a Court question, he replied that by frontal bone, means forehead in the centre. The size of the injury was 4 Cm., though it has not been indicated in his report. In his opinion, it may be that the fatal injury was caused on 9th May or thereafter, again said between 7th and 9th May. This witness also states that at the time when he conducted the post mortem examination, maggots were present in the injury on the forehead. He says that maggots can appear within three days in hot climate. To a question of the Court, he states that if the deceased was dragged on a hard surface, injuries must have appeared on the portion of her body which was in contact with the surface. To another question as to whether the injury found by him on the forehead could be caused due to dragging of the deceased prior to or after her death, his emphatic answer was ‘No.’ He did not find any injury which would indicate that the deceased was dragged after the death. He admitted that the injury on the forehead could be caused due to striking of the head against a danga (ledge) or by a fall from a height of around six feet. Another question was put by the Court about the fact 6 that post mortem does not mention about the articles found on the dead body which were seized and handed over by him to the police or sealing of all these articles. He replied that he had not mentioned about taking into possession of any blood stained garment etc. and could not explain as to why he had not recorded this in the post mortem report Ext.PM. He admitted that an application Ext.PM/1 was moved by the police requesting for post mortem of the deceased and this was accompanied by the Inuqest Reports Ext.PD and Ext.PD/1. We find from these two inquest reports that face of the deceased was covered with blood, the injuries on the head, mouth, eye, face and other parts of the dead body were visible and that there were scratch marks present on the legs and hands of the deceased and also that skin of both the hands had peeled off and there were bluish contusions present on the chest and back of the dead body and there were also injuries on the cheek, eye, fore-head and ear. There was no explanation as to how all these injuries, which have been stated in the Inquest report, were absent in the post mortem report. 8. We also advert to the evidence of other witnesses on this point which would be of vital importance. PW10 Bidhi Chand states that he was posted as SHO at the relevant time. Initially ASI Pat Ram PW9 and Beant Singh PW8 conducted the investigation, and after completion of investigation, he prepared the file for challan etc. To a Court question as to whether he had seen the inquest reports Ext.PD and Ext.PD-1, he replied in the affirmative, but could not explain as to why he did not ask for any clarification from the doctor PW11 as to why these injuries 7 were not found when the post mortem was conducted. PW9 Pat Ram says that the inquest reports were prepared by him. He also admits in his cross examination that in the post mortem report, there is no mention about the injuries which were noticed and recorded in the inquest report and he had made no effort to have these discrepancies clarified by the doctor. He says that he did not notice any maggots on any part of the body. 9. PW3 Khaju Ram says that his mother Jaithu Devi had been killed by a “mental” person, who was identified as the accused. The Investigating Officer says that there was nothing to indicate that the accused was mentally unstable or insane or that the crime was committed for the reason that the deceased happened to abuse him. The version of PW1 Kirpa Ram is totally belied by the medical evidence on record. According to his evidence, there are two dangas (ledges) between the place where dead body was found lying and hutment of the deceased. It is no where clarified in evidence as to how the dead body could be dragged over these two ledges and then thrown over. 10. We advert to the confessional statement alleged to have been made by the accused. PW1 Kirpa in his statement under Section 154 Cr.P.C. Ext.PA before the police, has not stated anywhere that the accused had confessed before Bija Ram PW2 and the other persons who were accompanying him. This was a very vital piece of evidence which was required for corroborating the case of the prosecution. According to PW3 Khaju Ram the accused stated that he was sorry that he had committed the crime and that he had killed the deceased. The exact words uttered are “maine khatam kiya usko.” (I have 8 finished here.) The Court put a question to this witness as to why the acused had killed his mother, to which this witness replied that the accused stated that “galati ho gai hai.” (Mistake has been committed.) He then stated that accused had demanded food from the deceased and instead of serving him food, she started abusing him. He says that the accused was mentally ill and then the accused started laughing while deposing as if nothing serious had happened. In his cross examination, he has stated that the deceased had good relations with the accused. The accused, it may be noted, is brother-in-law of this witness. In the totality of the facts and circumstances of the case, the learned Court below did not find the evidence worth relying upon to convict the accused. 11. We have also given anxious thought to the evidence as noticed by us above and concur with the findings of the learned Sessions Court. We find that the inquest reports Ext.PD and Ext.PD-1 are totally at variance with the post mortem report Ext.PM. So much so, PW11 Dr. Shyam Lal has categorically stated that he found no injury except the one on the fore-head. Two of the witnesses as noticed by us namely PW9 Pat Ram and PW10 Bidhi Chand have made no effort or attempt to have these discrepancies reconciled. There is no explanation for the material discrepancies as noticed by us above. We also find that the version that the accused had made an extra- judicial confession before the witnesses when they came to the scene of occurrence is also not supported by any evidence. PW4 Parma Nand has also not supported the case of the prosecution and in his cross 9 examination, nothing material has been elicited which would indicate that his testimony is not reliable. 12. In Ram Narain Singh vs. State of Punjab (1975)4 SCC 497 the Supreme Court holds that where there is discrepancy between the prosecution case and the medical evidence as also the forensic evidence which has remained unexplained and the direct evidence is not corroborative, the material discrepancy discredits the entire case. The Court holds: “14. Where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistic expert, this is a most fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case. In Mohinder Singh v. State AIR 1953 SC 415 this Court observed in similar circumstances as follows: In a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered to be the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. It is elementary that where the prosecution has a definite or positive case, it is doubtful whether the injuries which are attributed to the appellant were caused by a gun or by a rifle. It is obvious that where the direct evidence is not supported by the expert evidence, then the evidence is wanting in the most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence. While appreciating the evidence of the witnesses, the High Court does not appear to have considered this important aspect, but readily accepted the prosecution case without noticing that the evidence of the eyewitnesses in the Court was a belated attempt to improve their testimony and bring the same in line with the doctor’s evidence with a view to support an incorrect case.” (at p. 581) 10 In Maula Bux and others vs. State of Rajasthan (1983)1 SCC 379 the Court again holds that where there is discrepancy between the inquest and post mortem report, those unexplained material discrepancies would entitle the accused to an acquittal. 13. On the extra-judicial confession, all that we need say is that such confession can be used for conviction but that must be proved beyond reasonable doubt. We cannot persuade ourselves to hold on the evidence on record that such confession was in fact made. In Kishore Chand vs. State of Himachal Pradesh, (1991)1 SCC 286 the Supreme Court holds: “7………An unambiguous extra-judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of its falsity. But in the process of the proof of the alleged confession the court has to be satisfied that it is a voluntary one and does not appear to be the result of inducement, threat or promise envisaged under Section 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent Sections 25 and 26 of the Evidence Act. Therefore, the court has to look into the surrounding circumstances and to find whether the extra-judicial confession is not inspired by any improper or collateral consideration or circumvention of the law suggesting that it may not be true one. For this purpose the court must scrutinize all the relevant facts such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made and finally the actual words used by the accused. Extra-judicial confession if found to be voluntary, can be relied upon by the Court along with other evidence on record. Therefore, even the extra-judicial confession will also have to be proved like any other fact. The value of the evidence as to the confession depends upon the veracity of the witness to whom it is made and the circumstances in which it came to be made and the actual words used by the accused. Sometimes it may not be possible to the witness to reproduce the actual words in which the confession was made. For that reason the law insists on recording the 11 statement by a Judicial Magistrate after administering all necessary warnings to the accused that it would be used as evidence against him.” (at p.180-181) Lastly, we find this principle reiterated in State of Rajasthan vs. Rajaram (2003)8 SCC 180 reaffirming the view that an extra- judicial confession can be relied upon provided it passes the test of credibility and is proved in accordance with law. We find no such proof in the evidence of PW1 Kirpa Ram. The other witnesses having resiled from their previous statements, we cannot place any reliance on their evidence, even accepting their cross examination which does not prove the guilt of the accused. 14. While exercising the Appellate jurisdiction, we are guided by the principles as laid down by the Supreme Court in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010)1 SCC 94. The Supreme Court holds: “15. This Court has, time and again, dealt with the scope of exercise of power by the Appellate Court against judgment of acquittal under Sections 378 and 386, Cr.P.C. It has been repeatedly held that if two views are possible, the Appellate Court should not ordinarily interfere with the judgment of acquittal. This Court has laid down that Appellate Court shall not reverse a judgment of acquittal because another view is possible to be taken. It is not necessary to multiply the decisions on the subject and reference to a later decision of this Court in Ghurey Lal v. State Of Uttar Pradesh (2008)10 SCC 450 shall suffice wherein this Court considered a long line of cases and held thus: (SCC p. 477, paras 69-70) "69. The following principles emerge from the cases above: 12 1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law. 2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent. 3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong. 70. In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallised by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal: 1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so. A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when: (i) The trial court's conclusion with regard to the facts is palpably wrong; (ii) The trial court's decision was based on an erroneous view of law; (iii) The trial court's judgment is likely to result in "grave miscarriage of justice"; (iv) The entire approach of the trial court in dealing with the evidence was patently illegal; 13 (v) The trial court's judgment was manifestly unjust and unreasonable; (vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc. (vii) This list is intended to be illustrative, not exhaustive. 2. The appellate court must always give proper weight and consideration to the findings of the trial court. 3. If two reasonable views can be reached--one that leads to acquittal, the other to conviction--the High Courts/appellate courts must rule in favour of the accused." (at p. 100-101) These principles have been reiterated in Ganpat vs. State of Haryana and others, (2010)12 SCC 59. We do not find that material on record is such which would not justify the view which has been taken by the learned Sessions Judge and that there are some substantial compelling reasons for us to take a view different from that of the trial Court. 15. In these facts and circumstances of the case, we hold that the learned Sessions Judge has not committed any error in law in arriving at the conclusion acquitting the respondent from all doubts/wrong doings. This appeal is therefore rejected, Bail bonds furnished by the accused are discharged. (R.B. Misra) Judge December 30 , 2011 (Dev Darshan Sud), ms Judge