IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.392 of 1996 Date of decision:19.3.2010 State of H.P. ... Appellant Versus Arjun Dev and another … Respondents Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr.Vivek Singh Thakur, Additional Advocate General. For the respondent: Mr.Vinay Thakur, Advocate. ____________________________________________________________ Deepak Gupta, J (Oral). This appeal by the State is directed against the judgment dated 3.1.1996 passed by the learned Sessions Judge, Una in Sessions Case No.22 of 1995, whereby he acquitted the accused of having committed offences punishable under Sections 302, 120-B and 201 IPC. Brief facts of the case are that deceased Nisha Rani was the sister of accused Arjun Dev and daughter of the second accused Baldev Singh. The undisputed facts are that on 8.1.1995 Nisha Rani was murdered by strangulation. It is also not disputed that her body was 1Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 found sometime after 9 a.m. in the morning. The body was taken to the Hospital at Daulatpur Chowk. The Doctor at the Hospital informed PW-14 SI Kuldip Singh, the Investigating Officer, that a dead body of a young girl had been brought to the Hospital having marks of a rope on her neck. The Investigating Officer immediately went to the Hospital after recording the factum of his departure in the daily diary. In the Hospital, Baldev Singh made a statement which was recorded under Section 154 Cr.P.C. This statement is Ext.PJ. In this statement Baldev Singh stated that Nisha Rani is one amongst his four daughters and he has two sons accused Arjun Dev and one Kushal Kumar. Baldev Singh in his statement given to the police stated that his son had some animosity with Balvinder, Hoshiar Singh etc. and suspected that they may have murdered his daughter. According to him his wife was admitted in the Hospital at Daulatpur Chowk since 30.12.1994. On 7th January, 1995 she was brought to spend a night at home and was to be taken back to the Hospital next morning. On 8.1.1995 he got up at 5 a.m. and he and his family members had tea. He asked Nisha Rani deceased and his son Arjun Dev to take their mother to the Hospital latest by the 9.30 a.m. bus. They also had 3 to visit their elder daughter and therefore his wife asked him to arrange vegetables to be taken for her daughter. Nisha Rani then stated that she was going out and she would get the vegetables on her way. For a long time Nisha Rani did not return and then he sent his younger son Kushal Kumar to look for her. After a little while Kushal Kumar came running back and told Baldev that Nisha was lying near the sugarcane field. Then Baldev sent his elder son Arjun Dev who found Nisha unconscious and carried her back to the house. Then they arranged for a van and brought her to the hospital where the doctors pronounced her to be dead. On this basis FIR, Ext.PK, was registered. According to the Investigating Officer, after recording the statement he got the photographs of the dead body taken and filled in the inquest reports Exts.PB and PC. He thereafter sent the dead body to the District Hospital, Una for post mortem. The Investigating Officer then went to the fields to verify the allegations made in the FIR. According to him, he did not find any marks of struggle in the field. The mustard leaves had been cut and it had rained the previous day. When he examined the dead body he did not find the clothes or the hair wet 4 and there were no stains of mud on the legs or other parts of the body of the deceased and therefore he concluded that the occurrence did not take place in the field as alleged in the FIR. He prepared the site plan Ext.PL. According to him, the spot was pointed out to him by the accused Arjun Dev. He thereafter interrogated the persons named by Baldev Singh in his initial statement. He also interrogated some of the other villagers such as Sarla, Babita and Ashok and came to the conclusion that the allegations made in the FIR were incorrect. According to the Investigating Officer, during the course of investigation he learnt that accused Arjun Dev had a fight with his sister Nisha the same morning since Arjun Dev wanted to marry Rekha and deceased Nisha was opposing this proposal. He therefore arrested the accused on 9.1.1995 on the basis of the material collected during investigation. According to the prosecution on 9.1.1995 a disclosure statement Ext.PG was made by accused Arjun Dev in the presence of PW-9 Hoshiar Singh, Manohar and Kishori Lal. On the basis of this disclosure statement a rope Ext.P-11 was recovered from a room next to the kitchen in which fodder was kept on the next day in the presence of PW-9 Hoshiar Singh, 5 Narinder, Satish and others. In cross examination a suggestion has been put to this witness that in fact the original complainant Baldev Singh (accused) had got recorded the names of six suspects but he on his own added the words “etc.” This witness also admits that after 2-3 hours of recording of the statement under Section 154 Cr.P.C. he recorded the statement of Baldev Singh under Section 161 Cr.P.C. which is Ext.DA. In this statement, Baldev had named Hoshiar Singh, Shambu Dutt, Balkar Singh and Balwinder Katoch as the other co-suspects. The Investigating Officer on the basis of his investigation made the original complainant Baldev Singh and his son Arjun Dev the accused in this case. This was done on the basis of the statements of the co-villagers recorded and the investigation conducted by him. After the post mortem was conducted and other investigation completed a challan was filed. Since the offence was triable by the Court of Sessions it was committed to the Sessions Court. The accused pleaded not guilty and claimed trial. The defence of the accused is that they are innocent and the Investigating Officer conducted the investigation at the behest of the persons originally shown to be accused. 6 Few other facts which are not disputed may also be mentioned at this stage since they would help us in appreciating the evidence. It is not disputed that the accused Arjun Dev was infatuated with his maternal aunt’s (Bua) daughter Rekha Devi (PW-4). It is also admitted that PW-4 along with Arjun Dev had gone out of the village and stayed with him for about 3-4 nights at various pilgrimage places in the State. It is also not disputed that this fact was not liked by other members of the families. After Arjun Dev and Rekha came back to Una they were taken to their respective homes and though no formal complaint was lodged the said incident had almost led to complaints being filed before the police. This is an unusual case where according to the prosecution a brother has murdered his sister. The motive ascribed is that the sister was objecting to the love affair between her brother accused Arjun Dev and PW-4 Rekha Devi. This annoyed accused No.1 who murdered his sister. At this stage only we may note that even if the entire prosecution case is taken at its face value neither any motive is imputed to the other accused Baldev Singh, father of the deceased, nor any other overt act ascribed 7 to him. He, at best, can be said to have committed an offence punishable under Section 201 IPC. Before discussing the oral testimony of the witnesses we also want to make reference to the inquest reports Ext.PB and PC as well as the post mortem report Ext.PA. The inquest report was admittedly prepared at the hospital itself where the Investigating Officer went when he was called by the doctor. In this inquest report the Investigating Officer against column No.10 has noted that there was a mark of rope or of some other hard substance and also reddish abrasions on the entire neck. On the sides of the throat the width of the ligature mark was 1 c.m. whereas in the centre it was about 1 ½ inches. The ligature mark was 10 inches long. The post mortem was conducted by a two member team of doctors i.e. Dr. M.L. Nadda and PW-1 Dr.(Mrs.)P.N. Nanda. Their observations are as follows: “She was stout, well built, wheatish complexion was wearing white ground green print Kameez and Salvar, white printed brassier, dark coloured underwear. Clothings were not stained with mud or blood and not torn. There was no external injury over any part of the body (except neck). Multiple linear hyper pigmented lines below both the iliac crests seen. Height was 5’ 3”. Rigor mortis was present. Post mortem staining over back. Eyes partially closed. Pupils dialated, fixed, conjuctive congested. Tongue not protruded 8 out. No blood or salive drooling from oral cavity or external nose. No foreign body in any of the natural orifices. Lips cyanosed, hands not clenched. Two ligature marks in front of the neck. First ligature mark- bluish in colour, 0.5 cm in width, extending from right mastoid process passing below the mandible towards left mastoid process. Second ligature mark- bluish in colour, 0.5 cm in width with extending from anterior border of right Sterno Cledo Mastoid muscle crossing the thyroid cartilage extending towards left SCM muscle ( and border) above the second ligature mark there was a reddish abrasion 0.5 cm in width present in front of the neck. On dissection of the first ligature mark underlying tissue was contused. Condition of the great vessels was found to be normal. Ontracheal dissection there was no fracture of any cartilage or tracheal ring. Trachial lumen was normal. No blood or froth seen. Tracheal mucosa was congested. No mark of knot seen anywhere over the neck. No fracture of cervical vertebrae seen. No nails or finger marks were seen on any side of the neck. CRANIUM AND SPINAL CORD: Normal THORAX Walls, ribs, cartilages and pleurae: Normal. Laryns and trachea, right and left lung: congested. Pericardium, heart and large vessels: Normal. ABDOMEN Walls, peritoneum, mouth, pharynx and Oesophagus, small intestines and their Contends, large intestines and their Normal. Contents, Kidney, bladder and organs of Generation. Stomach and its contents: Full of liquid contents, Yellowish green in colour. Organs of generation Not torn hairs or seminal External and internal: fluid found or external 9 Genetalia or clothing. Breast were normal. No Injury mark was seen. On dissection uterus was Found normal in size. MUSCLES, BONES AND JOINTS: Normal In our opinion the victim died due to asphyxia but the final opinion was to be given after the receipt of chemical Examiner’s report. After the receipt of C.E’s report mark A the final report was given by both of us as under: ‘The cause of death could be possible with the type of rope shown to me in this case.” To say the least, the post mortem report has been prepared in a very slipshod manner. This was a case of a serious offence of murder. It would be expected that in such cases the doctors should note the minute details and give their opinion as to what was the cause of asphyxia. Other then saying that the death was due to asphyxia no other cause has been given. The asphyxia could have been caused by strangulation, hanging, poisoning, heart attack etc. The doctor, in a case of murder, must give his/ her opinion as to what is the likely cause of the asphyxia. The post mortem must be meticulously done so that it can be ascertained what is the cause of death. The doctors had the inquest report with them when they prepared the post mortem report. In the inquest report, as noted by us above, the ligature mark is stated 10 to be 1 cm at the side and 1 ½ inches at the front of the throat. 1 ½ inches is about 4 cm. The doctors noted not one but two ligature marks. The first one was 0.5 cm wide and the second one is also 0.5 cm wide. They also noticed a reddish abrasion. The doctors have not even cared to give the length of the ligature mark in their post mortem report. PW-1 Dr.(Mrs.) P.L. Nanda, admits that she had seen the inquest report but according to her in the post mortem report she had mentioned her own observations in respect of ligature mark. To a specific question put to her, she stated that the indentation of the rope would leave a mark on the neck also but according to her, in this case, there was no impression on the neck. This also appears to be totally incorrect and against the inquest report. This witness also admits that a number of signs which normally should be present in a case of strangulation were present in this case. In fact while examining the larynx, trachea and lungs, it appears that the post mortem was not conducted properly and only congestions were noted. When, in a case like the present one, there was a clearly visible ligature mark on the neck it was the duty of the doctors to have conducted the post 11 mortem with great precision so that a clear-cut opinion could be given as to whether this ligature mark was suicidal or homicidal. If it was a murder how was the deceased murdered. In such a case it is important to not only note the external appearance of the various organs of the body but also examine the tissues under the ligature mark and the arteries in and around the area of ligature to show whether there are marks on the subcutaneous tissues or whether the arteries had been ruptured or not. The observations of the doctors are that the blood vessels were found to be normal. There was no fracture of any cartilage or tracheal ring. No blood or froth was seen and tracheal mucosa was congested. If this was a fact the death could not have been due to strangulation but there could be some other cause of death. It may be true that all the signs of strangulation may not be present in a given case but at least some of these important features must be present. We are pained to observe that the manner in which the post mortem was conducted was extremely shoddy and leaves much to be desired. Coming to the merits of the case, the star witnesses of the prosecution are PW-3 Babita and PW-4 Smt.Rekha 12 Devi. PW-3 is said to be an eye witness in the sense that she saw accused Arjun Dev carrying the body of his sister Nisha deceased from the room in which fodder was kept to the kitchen. This witness thereafter went to the house of the accused and according to her the deceased appeared to be dead. Hoshiar Singh one of the persons named as a suspect by Baldev Singh is the brother-in-law of this witness. She has admitted this in her cross examination. According to her, her father-in-law’s name is Hari Singh. She states that she is not aware whether there is any litigation between Hari Singh and Baldev Singh accused. PW-4 Rekha Devi is the person around whom the whole case revolves. According to her, Arjun Dev accused wanted to marry her but she did not agree. She also complained to deceased Nisha about this fact. She states that Nisha deceased told her brother accused Arjun Dev that what he was doing is improper since Rekha Devi was his sister being his Bua’s daughter. She states that on 8th January, 1995 Arjun Dev came on a scooter to her house and told her that he had cleared the obstacle of their marriage by killing Nisha by strangulation. He again asked her to marry him but she refused. She 13 further states that at about 1 p.m. Arjun Dev again came and asked her to marry him but she again refused. In cross examination she admits that in the month of August, 1994, for about three days, she had accompanied Arjun Dev accused to Chintpurni, Naina Devi and Baba Balak Nath temples. She also admits that they stayed for one night in each of these places. According to her she was forcibly taken by the accused and during this period he was pressurizing her to marry him. She further states that during this period the accused did not have sexual intercourse with her. When they returned to Una and went to the office of District and Sessions Judge, Una, where the deceased was working, Nisha Rani deceased impressed upon Arjun to behave properly. She also admits that her brother Varinder was one of the initial suspects in the case and has been interrogated by the police. The two main circumstances which the prosecution wants to rely upon against the accused are: (1) the extra judicial confession made to PW-4 Rekha Devi and (2) the fact that PW-3 Babita saw the accused Arjun Dev carrying Nisha from the fodder room to the kitchen and also that she heard some arguments in the kitchen between the 14 deceased Nisha and her brother accused Arjun prior to 9 a.m. As far as the extra judicial confession is concerned it does not appear to be correct and the statement of Rekha Devi does not inspire confidence. We are dealing here with a statement of a girl whose brother was initially named as a suspect by the accused. Though Rekha Devi denies this fact, but from a perusal of her statement and other material on record, it is more than apparent that she was also as much infatuated by Arjun Dev as he was by her. Otherwise why would she have spent three nights with him at different places. Her explanation that she was forcibly taken cannot be believed. In this case the accused have led evidence and placed sufficient material on record in the shape of Exts.D-4, D-5, D-12, D-14, D-15, D-16, D-17, D-18, D-19, D-20 and D-21 which show that there was long standing litigation between the accused Baldev Singh and Sh.Hari Singh father-in-law of PW-3. It is also more than apparent that this liaison between Rekha and Arjun was not liked by any of the family members on either side since they were cousins. Once her brother had been named as a suspect, 15 it would not be difficult for her family members to convince her to give evidence against the accused. As far as the statement of PW-3 is concerned, it is proved on record that not only is there long standing disputes between the parties but also that her statement does not appear to be true. The learned Sessions Judge in this case himself visited the spot. He prepared an inspection note and rough site plan. On going through the inspection note and site plan it is apparent that the internal side of the kitchen of the accused is not visible from the kitchen of Babita. She can only see the area outside the kitchen and the room in which the fodder had been kept. The learned Sessions Judge has also observed that the distance between the two houses is almost 60 ft. and since there are walls with no windows in the kitchen of the house of the accused towards the side of the house of PW-2, sounds would not be audible to her. We may also note another fact. All the witnesses stated that at 9 a.m. they started watching TV serial ‘Chanderkanta’. The TVs are not switched on immediately at the starting time of the serial but are switched on some time earlier also. Therefore, at such a distance she could not have heard the sounds 16 emanating from the kitchen and even if she could have heard some noises she could not have said with certainty that the voices were that of the deceased and the accused. True it is that she could have seen Arjun Dev carrying his sister. In fact the case of the defence also is that Arjun Dev carried the body of his sister Nisha from the fields to the kitchen. This witness states that in fact the body was taken out from the fodder room to the kitchen. Though the Investigating Officer has very categorically stated that he found no signs of a struggle in the field where the accused alleged that the body of Nisha Rani was initially found, he is conveniently silent about the signs of struggle, if any, found in the fodder room. Other than the alleged recovery of a rope from the fodder room he has not carried out any other investigation to show that the deceased was done to death in the said fodder room. Now we come to the third and the only other circumstance which can link Arjun Dev with the crime i.e. the recovery of the rope. Hoshiar Singh PW-9 is the witness to the disclosure statement as well as the recovery of the rope. According to him on 9.1.1995 he was associated by the police in the case and in his presence accused Arjun 17 told the police that he can get a rope recovered from his house. This statement is Ext.PG, in which the accused is reported to have stated that he had kept the rope in a room on the back side of the house and he can point out the same. According to this witness he thereafter left the place and on 10.1.1995 again joined investigation at the village when the accused got recovered a nylon rope from the room adjacent to his house. The rope was taken into possession vide recovery memo Ext.PH in the presence of this witness and other witnesses. In cross examination this witness states that on 9.1.1995 he had gone to the factory of Manohar Lal, Pradhan which is near the Police Station. He went to the Police Station in connection with his own work at 10.30 or 10.45 p.m. At that time the accused were being interrogated by the police officials and the accused disclosed that they killed Nisha with a rope and could get recovered the rope from their house. He states that the house of the accused is only at a distance of 2 k.m. from the Police Station. He is also not aware whether the police went to the house of the accused on 9th itself. According to him the police asked him to come next day at 10 a.m. in the morning for the purpose of recovery. The distance of the house from 18 the Police Station was only 2 k.ms. In case the disclosure statement had been made at night then what prevented the police from going immediately to the place where the rope was hidden. It is not a case of a small theft which we are dealing with but a case of murder. Why should the police wait for 12 hours for the recovery of the rope? Once the accused had given them an indication that he had kept a rope hidden in the rear of the house they should have taken immediate steps to go to the spot to recover the rope. In 12 hours anybody could have planted a rope in the room in question especially when even as per this witness the statement has been recorded in the presence of a number of people. Interestingly, this witness does not show what was the work which took him to the Police Station in the late hours of the night. He is apparently a chance witness. None of the other witnesses to the recovery of the rope or the disclosure statement have been examined in Court. The recovery of the