Case: State of Himachal Pradesh Vs. Prem Chand

2. The prosecution case, in brief, is that on 10th February, 1992, the respondent came to the house of Dhobi Devi in the evening and took his meals in the company of Dhobi Devi, Madhu Devi and Pawan Kumar, that Geeta Davi, wife of Udho Ram, came to fetch milk from the house of Dhobi Devi and when she asked about the whereabouts of the man sitting near the hearth Dhobi Devi informed her that the respondent is the real brother of herthat the respondent, after taking meals, slept in the company of Pawan Kumar whereas Madhu Devi, a minor aged about 3 years, slept with herDhobi Devi; that in the morning on 11th February, 1992, the respondent, after taking tea, left the house, that on the same day, the respondent again came to the house of Dhobi Devi late at night; that since there was a dog, the respondent asked Dhobi Devi to tether the dog; that after doing so, Dhobi Devi asked as to who was giving the calls and the respondent replied that he was the same person who had come to her house the previous night; that the respondent was asked by Dhobi Devi about his meals and he said that he had his meals but indicated his willingness to have kheer; that Dhobi Devi prepared kheer which was taken by the respondent. Madhu Devi and Pawan Kumar, that thereafter Madhu Devi slept with Dhobi Devi and Pawan Kumar slept with the respondent who was the real uncle of Pawan Kumar, that in the night the respondent gagged the mouth of Pawan Kumar and gave danda blows to Dhobi Devi and immediately, Dhobi Devi called upon Pawan Kumar to free the dog which was tethered; the Pawan Kumar took out the muffler from his mouth and ran towards the stairs and when he had hardly covered two to three stairs the respondent notice him and caught hold of him from the neck and caused injuries on his with the held of iron pipe; that thereafter Pawan Kumar was caught hold of and his neck was put on the threshold of the door and the respondent caused injuries on his neck by a darati; that the respondent after committing the murder of Dhobi Devi put a bundle of quits on Dhobi Devi and her minor grand daughter Madhu Devi aged about 3 years who was sleeping with her: that Madhu Devi being a small child was not able to bear with the weight of quits or remove the same and died of suffocation, that the respondent also inserted sansi in the rectum of Dhobi Devi; that thereafter the respondent searched the boxes and took entire jewellery of Dhobi Devi and herKanta Devi and fled away from the scene of crime, that Kanta Devi on the fateful day had gone to village Maherne to see her off in herhouse; that husband of Dhobi Devi and her son, Krishan alongwith the mother of Pawan Kumar, Lila Devi had gone to Kullu; that n the intervening night of 11in and 12th February, 1992 the only occupants in the house were Dhobe Devi, Madhu Devi and Pawan Kumar, Ajudhia Devi, a neighbour, who visited the house of Dhobi Devi to give water the buffalo belonging to her which she had tethered in theof Dhobi Devi found that there was no response to her calls to Dhobi Devi and saw Dhobi Devi and Madhu Devi underneath the bundle of quilts and injured Pawan Kumar laying in a serious condition, then she raised alarm that someone had killed Dhobi Devi and her children and thereupon, Prem Chand, husband of Ajudhia Devi, heard the cries and came to the house of Dhobi Devi and found that Pawan Kumar was still breathing and removed the bundle of quilts and found that Dhobi Devi and Madhu Devi were dead. Prem Chand immediately informed the Pradhan Undho and thereafter both the them went to the police and reported the matter. Pawan Kumar was shifted to the hospital at Palampur and after being treated in the hospital he made a statement that Dhobi Devi and Madhu Devi had been killed by the respondent and he had been caused injuries by his Chachu Prem Chand. On this when the respondent was interrogated he made a disclosure statement resulting in the recovery of ornaments kept concealed in his house. Thereafter, the investigation Officer sent the dead bodies of Dhobi Devi and Madhu Devi for post mortem examination after conducting the necessary inquest. Pawar Kumar, PW 4, was aged about 10 years and was found competent witness. He reiterated what has been narrated by us earlier. He was very clear in his evidence as to the identify of the respondent who was present in the court and also clearly, identified him in the court. It is on the basis of his evidence and other material on record through the evidence of other witnesses, the learned Sessions Judge, Kangra Division, found that the prosecution had been able to prove the following points against the92 and onthe accused came to the house of Dhobi Devi, the deceased:2) Pawan Kumar the injured witness was living in the house of Dhobi Devi and this fact has been admitted by the accused:3) Pawan Kumar received grievous injuries seven number from the hand of the accused.4) Accused is the real "Chacha" of Pawan Kumar and he made no mistake to identify the accused on both the occasions i.e.5) The accused, after committing murder of Dhobi Devi and Madhu aged three years caused grievous injuries to Pawan Kumar removed the jewellery from the house and silently left the house during the intervening night of 11th and 12 February, 1992;6) The ornaments, which were removed by the accused from the house of Dhobi Devi after committing the double murder were got recovered by him after making the disclosure statement from his house.7) The ornaments have been duly identified by Kanta Devi (PW 8) in the presence of the Executive Magistrate Shri Salig Ram (PW 10):8) The accused was arrested on 13.2.1992 when the name of accused was disclosed by Pawan Kumar from his house. The arrest has been admitted by the accused:9) The accused after committing the murder put bundle of quilts on the bodies of Dhobi Devi and Madhu, aged about 3 years. Madhu died due to suffocation as per report of Doctor. Madhu being a little child, it was not possible for her to remove the weighty quilts from her body and died;10) It is also proved on record that death of Dhobi Devi is homicidal as testified by PW 1 Dr. V.P. Sood;11) That the injuries wereand were sufficient to cause death in the ordinary course of nature;12) The Doctor further clarified that the suffocation could be caused by blocking the nose and mouth with the help of hand or otherwise by placing quilts and clothes, etc. upon Madhu, deceased.On the basis of this conclusion, the learned Sessions Judge found that the case was established that Prem Chand, the respondent, alone had committed the murder of Dhobi Devi and Madhu Devi and caused grievous injuries to Pawan Kumar and removed the jewellery; that the said conclusion was beyond any reasonable doubt. After hearing the respondent on sentence the learned Judge felt that the murders had been committed by the respondent in a ghastly, fiendish and gruesome manner of his victims who were helpless and attempted to kill Pawan Kumar for gain. Holding this case falls in the category of rarest of the rare cases, the learned Sessions Judge convicted the respondent and sentenced him to death and made a reference to the High Court for confirmation of the same.4. The High Court took up the criminal reference and criminal appeal together for consideration. The High Court held asgoing through the material evidence against the appellant, consisting of testimony of PWs 1, 2, 4 to 8, 19 and 20, we do find that there is some amount of consistency if their evidence which could have been based for the conviction of the accused. However, mere congruity or consistency is not the sole test of truth. The force of the evidence does not depend merely on the credit attached to the factum probandam but to the result by which process of reasoning, it indirectly establishes in the mind of the Judge. Of course, if direct evidence is credible, it is superior to any other class and more satisfactory to the judicial mind. However, it must be borne in mind how easy it is to fabricate direct, evidence. For example, now simple a matter it is for a witness to swear falsely; "I saw "A" dealing the fatal blow". It is also stated that circumstances cannot lie. It is also equally fallacious as appears from every days experience Circumstances do lie most cruelly. The innocent often succumbs to the unfounded suspicions from circumstances which appears to tell strongly against him the true bearing which the accused has neither the opportunity nor often means to explain. The truth is that either kind of the evidence whether direct of circumstantial, has its peculiar advantages and defects. Sometimes, even falsehood is given an adroit appearance of truth, so that truthand falsehood comes on the surface. The instant case appears to be one of those cases. There are many inherent improbabilities in the prosecution case so far as the participation of the appellant is concerned.The entire case hinges upon the direct and circumstantial evidence. The central evidence consists of PWs 4, 5, 6, 7, 8, 19 and 20 besides the medical evidence consisting of PWs. 1 and 2. The motive alleged by the prosecution is theft. Further the incident is stated to have been witnessed by Pawan Kumar (PW 4) an injured person. It is needless to say that when there is acceptable evidence of the eye witnesses to the commission of an offence the question of motive cannot loom large. However, the Courts cannot loss sight of the fact that when motive forms an integral part of the prosecution case and circumstances depicted by the factual position existing at the spot through the documentary evidence does not corroborate the testimony of the eye witnesses, then the prosecution story becomes doubtful and hence unacceptable. In the instant case, no doubt, PW 4 Pawan Kumar an injured person, should ordinarily, be the most competent and reliable witness but the question is as to whether he fails in that category. We answer it in the negative.The High Court merely, took into consideration the site plan Exhibit PW 20/A and referred to various positions of different rooms and place where the four beds were kept. The High Court on that basis, which was not the case of defence either, tried to make out a case and proceeded to suspect the evidence tendered before the court. This conclusion of the High Court is based upon the fact that the building in which the occurrence took place is a double storeyed building: that each storey had three rooms: that there were four beds lying at place where both the deceased and the injured were sleeping at places marked in the sketch; that if really Pawan Kumar was sleeping with the respondent and Madhu Devi herDhobi Devi, there would have been only two beds and not four and this document therefore proved that the testimony of Pawan Kumar was doubtful. The High Court proceeded further to analyse the evidence tendered by PW 4, Pawan Kumar with meticulous detail and as to where the masala ghotne ka dandaand hollow iron pipe (Exhibit P11) stained with blood had been found at place. The High Court also differed as to when the respondent began to give blows to Dhobi Devi and Madhu Devi and why the respondent should have intended to kill Pawan Kumar by inflicting darati blow on his neck. The High Court found it difficult be believe that the injury inflicted on Pawan Kumar within a few seconds after attacking Dhobi Devi with a new kind of weapon namely a hollow Iron pipe and it is difficult to think that he could change the weapon within a few seconds. It was not possible for the respondent to pick up the pipe from kitchen and use it as a weapon of offence. The above sequence of facts narrated by PW 4 in his testimony appeared to the High Court to be unnatural. It is on this basis the High Court concluded that the evidence of eye witness PW 4 was not worthy of belief. The High Court also disbelieved the recovery of apparel of the respondent as well as the other evidence and notice that the circumstances indicating commission of theft in the form of scattering of clothes etc. were existing at the scene of occurrence and further commented as to why these facts were not indicated in the inquest report despite the fact it formed integral part of the offence committed by the respondent as was the case of the prosecution. The High Court concluded that death was not caused in consequence of the use of various weapons by one manthe respondent and held that prosecution had not been able to establish the case and, by giving the benefit of doubt, acquitted the respondent. Hence, this appeal has been filed by special leave.

Reasoning:
contention that PW.4 having been gagged in the mouth with a muffler was not stated earlier but an improvement made before the court is not very material as it is a detail of minor nature. The visit of the accused on the 10th February 1992 right appears to us only to survey the situation and after ensuring himself that it was possible for him to commit the crime, he returned the next day.to Binda, father of PW.4 and the brother of the accused, will not carry the matter any further because their evidence would not establish any connection with the crime committed by the accused. Fact remains that the accused had been apprehended and produced before the court. In this background we find no merit in any of the contentions advanced by the learned amicus curiae on behalf of the respondent.The High Court held that as the site plan indicated that there were four beds, the testimony of PW.4 has become doubtful. It is difficult to accept the view taken by the High Court that when the clear evidence tendered by PW.4 is to the effect that the small child of three years was sleeping with her grandmother and that PW.4, who is nephew of the respondent, was sleeping in the same bed, it would not mean that the existence of the other two beds could be doubted. In that view, the High Court has attached undue significance to this aspect of the matter and has misled itself. PW.4 who is a very young boy, was an inmate of the house on the fateful day was seriously injured and Dhobi Devi and Madhu Devi were murdered by the respondent. The fact that PW.4 sustained injuries on that day cannot be seriously disputed. The circumstances in which PW.4 sustained those injuries have been clearly explained by him and the manner in which the respondent attacked Dhobi Devi and Madhu Devi and later on himself cannot be doubted at all. The presence of the respondent on 10.2.1992 is established by evidence of Geeta Devi. That indicates that the respondent having noticed that there was an old lady with a small child and P.W. 4, Pawan Kumar was a young boy, took the opportunity to do away with them but he could not execute his plan completely because Pawan Kumar survived, though the respondent had caused him grievous injuries. PW.4 had in the course of his evidence has clearly deposed that his "Chachu" has committed the murder of his "Nani" and sister Madhu Devi and he caused injuries to him with the help of iron pipe and sickle. PW.4 has in clear and cogent manner described the incidence that had taken place. When he is related to the respondent there is no reason to suspect that he had given any tutored version or there is no clarity or consistency in his evidence. Even discarding the recoveries that are stated to have been effected, it is clear that there is enough evidence on record to show that the respondent committed the murder of Dhobi Devi and Madhu Devi as held by the Sessions Court. But, the High Court, was carried away by figments of imagination, by incorrectly and unduly relying upon rough sketch of the scene of crime. We do not think that unless with reference to the rough sketch the scene was recreated before the court through the evidence of one or the other witness, the High Court could have placed much reliance upon that aspect.11. Therefore, we have no hesitation in setting aside the order made by the High Court acquitting the respondent and restoring the conviction passed by the Sessions Court.12. Though the Sessions Court has imposed death sentence upon the respondent by an order made on 29.9.1992, the High Court by its judgment dated 28.4.1993 acquittedextreme sentence cannot seek it main support from evidence of this kind which, even if true, is not safe enough to act upon for putting out a life" [p.574] and keeping in mind the fact that there is a long time gap between the date of the murder and conviction now by us end particularly when in the intervening period there is an order of acquittal in favour of the respondent, we do not think it is expedient to award the capital sentence upon the respondent. Therefore, we reduce the sentence to life imprisonment while upholding the convicting given by the Sessions Court.