Himachal Pradesh High Court
Luxmi Devi vs State Of Himachal Pradesh on 3 July, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 99 of 2014
Reserved on: 02.07.2015
.
Date of decision: 03.07. 2015
Luxmi Devi
......Appellant.
Vs.
State of Himachal Pradesh
.....Respondent.
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Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge
The Hon'ble Mr. Justice Sureshwar Thakur, Judge
Whether approved for reporting?1 Yes.
For the appellant : Mr. B.M. Chauhan, Legal Aid Counsel.
For the respondent: Mr. P.M. Negi, Deputy Advocate General.
Rajiv Sharma, J.:
This appeal is instituted against the judgment and order, dated 02.09.2013/05.09.2013, whereby the appellant-accused (hereinafter referred to as 'the accused' for the sake convenience), who was charged with and tried for offences punishable under Sections 302, 201 read with Section 120-B of the Indian Penal Code, has been convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of `2000/- and in default of payment of fine, she was further ordered to undergo imprisonment for one month under Section 302 of the Indian Penal Code. She was also sentenced to undergo Whether the reporters of the local papers may be allowed to see the Judgment? Yes.
::: Downloaded on - 15/04/2017 18:30:16 :::HCHP 2punishment for three years and to pay a fine of `2000/- and in default of payment of fine, to undergo imprisonment of one month under Section 201 of the Indian Penal Code. She was also ordered to undergo .
imprisonment of two years under Section 120-B of the Indian Penal Code. All the sentences were ordered to run concurrently.
2. Case of the prosecution, in a nut-shell, is that Biru Ram Khatri (deceased) alongwith his children was residing at a place known as Rajhana in a rented accommodation owned by PW-2 Geeta Ram. On 21.01.2012, accused lodged a complaint qua missing of her husband.
Thereafter, on 24.01.2012, PW-8 Rahul lodged a complaint that accused in connivance with Basant and Som Raj, juvenile in conflict with law, had committed murder of Biru Ram. On the basis of this information, FIR Ex. PW-11/G was registered. The police visited the spot and the matter was investigated. The children of the accused disclosed that deceased Biru Ram had quarreled with accused and he left the house. Biru Ram consumed liquor and again quarreled with the accused in the evening. Thereafter, the accused called Basant Kanwar and Som Raj, who were residing in a rented accommodation in the same house occupied by the accused. The accused alongwith aforesaid persons took away Biru Ram and thereafter the deceased was strangulated by pressing his neck with dupatta of the accused. The dead body was packed in a plastic sack and was buried in Kufri forest.
Accused made a disclosure statement Ex. PW1/A before PW-1 Sh. P.K. Taak, Magistrate and other witnesses and thereafter led the police party ::: Downloaded on - 15/04/2017 18:30:16 :::HCHP 3 for recovery of the dead body. The dead body was taken into possession by the police and was sent for post mortem examination. Spot map was prepared. The articles were also taken into possession from the spot.
.
The statements of the witnesses were recorded. Som Raj had also made disclosure statement Ex. PW2/A and got recovered a spade. Post mortem report Ex. PW10/B was obtained and the case property was sent to FSL for chemical analysis and FSL reports Ex. PW6/A and Ex.
PW7/A were obtained. Statement of PW-13 Varinder minor son of the deceased was also recorded under Section 164 Cr. P.C. The matter was investigated and after completion of all the codal formalities, the challan was put up in the Court.
3. The prosecution has examined number of witnesses to support its case. The accused was also examined under Section 313 of the Cr. P.C. According to her, Som Raj and Basant had threatened to kill her husband, since her husband used to vomit and urinate on their roof and due to this reason they committed murder and disposed of the dead body of her husband in the forest. She examined her daughter Ms. Minakshi as DW-1 in defence.
4. Mr. B.M. Chauhan, learned Legal Aid Counsel for the appellant has vehemently argued that the prosecution has failed to prove the case against the appellant/accused.
5. Mr. P.M. Negi, learned Deputy Advocate General has supported the judgment and order, dated 02.09.2013/05.09.2013.
::: Downloaded on - 15/04/2017 18:30:16 :::HCHP 46. We have heard the learned counsel for the parties and gone through the judgment and records, carefully.
7. PW-1 Sh. P.K. Taak, testified that on receiving a telephonic .
information from the police, he went to Rajhana and joined the investigation. Accused gave her statement vide Ex. PW1/A that she had concealed the dead body of her husband and she could get the same recovered. At that time, Chet Ram Pradhan Rajhana was also present there. The statement is Ex. PW1/A. He signed it. Accused Laxmi Devi had also appended her thumb impression. Chet Ram had also signed it. Som Raj and Basant Ram also took part in concealment of the dead body. Laxmi and Som Raj took the police party and they identified the place and in the presence of witnesses at a distance of 50 feet from the path, the land was dug and one dead body was recovered.
The dead body was in a plastic bag. It was identified by Laxmi Devi as her husband. Rahul and Virender were also present there. A memorandum was prepared vide Ex. PW1/B. On the neck, Chunni was tied. Dead body was seized through memorandum Ex. PW1/B. Chet Ram also signed memorandum. Laxmi Devi had also put her thumb impression on the same. In his cross-examination, he has deposed that the statement Ex. PW1/A was recorded near the house of Laxmi Devi.
ASI had recorded the statement. He did not know his name. In his presence, only one disclosure statement of Laxmi Devi was recorded.
This statement was recorded between 11:00 and 12:00 noon. At that ::: Downloaded on - 15/04/2017 18:30:16 :::HCHP 5 time, Chet Ram and other members of community were present there.
Som Raj and other persons had dug the place with hands.
8. PW-2 Sh. Geeta Ram deposed that he knew Biru Ram, .
husband of Laxmi Devi. On 23.01.2012, Rahul came to his house and informed that Basant, Som Raj and Laxmi Devi had killed Biru Ram. He had asked accused Laxmi about her husband before 23.01.2012 and she told that he had gone to Kalibari for work. On 24.01.2012, she had taken her father to Tenjin Hospital. He was told that police had come to her house. Police came on 26.01.2012. Som Raj gave statement under Section 27 of the Indian Evidence Act that he had concealed the Faruwa. Statement was recorded and it was signed by him and Pradhan Chet Ram. Som Raj had also signed the document, which is Ex. PW2/A. Som Raj got recovered the Faruwa (spade) from the cow shed. It was seized through memorandum Ex. PW2/B.
9. PW-3 Smt. Mala Devi deposed that Biru Ram was doing labour work near Kalibari. He told her that he had strained relations with his wife as she was not keeping good moral. He told her that he has danger to his life from persons like Basant and another boy. He also told that his wife would get him killed. She had seen him in the first week of January, 2012. Thereafter, she had not seen him. She contacted her sister Bimla Devi who was working with Biru at Kalibari and she had informed her that she had not seen Biru attending work from 9.1.2012. She told her husband Rahul that Biru was not seen.
She asked her husband to inquire from Laxmi Devi. Laxmi Devi did not ::: Downloaded on - 15/04/2017 18:30:16 :::HCHP 6 tell anything and her husband asked Laxmi Devi to lodge missing report of Biru. Laxmi Devi had lodged the report to the police. On 23.01.2012, she, her sister, Varinder and Rahul went to the house of .
Laxmi Devi. Laxmi Devi did not tell anything, but children informed that there was quarrel between parents. Varinder had told that his father has been killed by two neighbours Basant and Hem Raj. The son had told that his father was killed in the night with the help of Laxmi Devi. Laxmi told that Basant and Hem Raj had killed her husband.
Varinder had reported the matter to police. Police came on the spot on the next day.
10. PW-4 Sh. Tek Singh deposed that on 23.01.2012, many Nepali had gathered in the compound of Biru. He, Sita Ram and Geeta Ram went there. Som Dutt and Basant Kanwar told that they killed Biru and Chunni was given by his wife. Basant told that dead body was buried in the jungle. Laxmi Devi had also confessed that she had given Chunni with which he was killed. Children of Biru also told the same thing. He had told them to lodge the FIR.
11. PW-5 Sh. Puran Mal is a formal witness. PW-6 Sh. C.L. Sharma proved the report, Ex. PW6/A. PW-7, Sh. Naseev Singh Patiyal has proved the report Ex. PW7/A.
12. PW-8 Sh. Rahul Kumar deposed that Biru was residing in Rajhana alongwith his wife Laxmi Devi. They had two sons and two daughters. Biru was working at Kalibari. Som Raj and Basant were residing near his house. They had been visiting house of Biru Ram and ::: Downloaded on - 15/04/2017 18:30:16 :::HCHP 7 contacting his wife Laxmi. Biru had been telling him that Som Raj and Basant used to sit with his wife Laxmi Devi and Som Raj and others used to give him threats. He had been telling him that his wife would .
get him killed. Biru was not seen for the last one week. It was January, 2012. He telephoned to Bimla to know about Biru. Bimla told him that he had not come for the last 8-9 days to Kalibari. He and his wife inquired about Biru from Laxmi Devi. Perhaps it was 16th or 17th day of January. He did not remember the date. Laxmi told them that Biru had gone to Kalibari. She said that Biru had gone to Kalibari and had not returned for the last 6-7 days. Then, he returned to his quarter. He, Varinder, his wife alongwith other persons went to the house of Laxmi Devi on 23.01.2012 in the evening. They inquired from Laxmi Devi and Varinder. Laxmi told that Biru was killed by Basant and Som Raj.
Laxmi Devi told that she was present with them. Varinder had told that his father had gone to work. On 24.01.2012, he reported the matter to the police at 8:30 a.m. Police came to the spot and recorded statement of Laxmi Devi. Police took Som Raj and Laxmi Devi to jungle. They showed the place where the dead body was kept. The dead body was exhumed. Dead body was in the gunny bag. A duppata was found tied with the neck. He identified the dead body to be of Biru Ram. Police took the photographs. In his cross-examination, he admitted that he had not lodged the FIR. He had informed the police on telephone on 23rd January. Police had reached in the evening. His statement was recorded on 24th January at about 9-10 a.m. ::: Downloaded on - 15/04/2017 18:30:16 :::HCHP 8
13. PW-9 Sh. Udham Singh is a formal witness. PW-10, Dr. Manoj Sharma, has conducted the post mortem. He has issued post mortem report Ex. PW10/B. According to his opinion, death of deceased .
was consistent with ligature strangulation in a case where blood alcohol level was 102.63 milligram percent. The time that has elapsed between death and post mortem was 2 to 3 weeks. The duration between injury and death was immediate.
14. PW-11 H.C. Ravinder Chaudhary deposed that the case property was deposited with him, the details of which have been entered in the malkhana register. He had sent all these parcels through Constable Gurmeet Singh to FSL, Junga for analysis.
15. PW-12 Constable Gurmeet Singh deposed that he has deposited the case property at FSL, Junga. PW-13 Sh. Varinder Khatri is the son of deceased. His statement was recorded on oath, though he was minor. He testified that in the year 2012, he alongwith his parents was residing in the building of Geeta Ram at Village Rajhana. One Som Raj and Basant were residing below the room occupied by his parents.
When his father used to go out, Som Raj and Basant had been coming to their room. His father used to object the entry of Som Raj and Basant in their house in his absence. His father told his mother that in case these persons will not stop coming to their house, then she should also go with them. On 09.01.2012, his mother (accused) and his father had heated arguments. Thereafter, his father left the house. At about 8:00/8:30 p.m., his father came back after consuming liquor and was ::: Downloaded on - 15/04/2017 18:30:16 :::HCHP 9 also having a bottle of liquor with him. Thereafter, his father had altercation with his mother and his mother pushed him outside the room and called Som Raj and Basant. Som Raj and Basant had also .
quarreled with his father. Thereafter, the room was bolted from outside and his father was taken away by the aforesaid persons. At about 11:00 p.m., his mother, Som Raj and Basant were talking to each other and he heard that they had committed murder of his father and the dead body was disposed of in a jungle at Kufri. He had also noticed his mother and Basant who had come to the room and had taken out a plastic sack. He had also heard that his mother was saying that she had frightened in the jungle and at this, Basant told her not to be frightened any more, since they had killed Biru. During that night Som Raj and Basant slept in their room and at about 8:00 a.m., he had noticed that they left the room. Thereafter, he inquired from his mother about the reason for killing of his father. She disclosed that since his father used to torture her, due to this reason she had eliminated his father. She also instructed him not to disclose this fact to any person.
On 21.01.2012, his mother lodged missing report of his father at Police Station, New Shimla. On 23.01.2012, Rahul and Varinder came to their house and they inquired about the whereabouts of his father from his mother. Thereafter, his mother disclosed to them that his father was killed by her in connivance with Som Raj and Basant. She had disclosed that neck of his father was pressed with the help of dupatta and dead body was buried in a forest. On 24.01.2012, Rahul reported ::: Downloaded on - 15/04/2017 18:30:16 :::HCHP 10 the matter to the police. The police interrogated his mother and Som Raj. Thereafter, they led the police party to forest at Kufri and got recovered dead body of his father. In his cross-examination, he .
admitted that sometimes, his father used to vomit and urinate in the room, which used to trickle down in the room of Som Raj and Basant.
He also admitted that due to this reason, Som Raj and Basant had altercation with his father and threatened his father to do away with his life. He also admitted that on the day of occurrence, his father had come after consuming liquor and had urinated in the room, volunteered that his father had earlier altercations with his mother and she used to call them. He also admitted that his father was taken away by Som Raj and Basant. He had heard that Som Raj and Basant had pressed the neck of his father with dupatta. He had not raised any alarm since he had no apprehension that his mother, Som Raj and Basant will kill his father. On 10.01.2012, he had disclosed this fact to his friends named Bhim and Jeet.
16. PW-14, Head Constable Inder Singh deposed that police recorded the statement of accused Laxmi Devi Ex. PW1/A under Section 27 of the Indian Evidence Act. Statement of Som Raj was also recorded in his presence vide Ex. PW2/A. On the identification of Laxmi Devi and Som Raj, the Investigating Officer recovered the dead body from a pit in Kufri forest.
17. PW-15 Ram Pal Sharma has carried out the investigation.
FIR Ex. PW-11/G was registered under Section 302 read with Section ::: Downloaded on - 15/04/2017 18:30:16 :::HCHP 11 34 of the Indian Penal Code. He went to the spot and accused Laxmi Devi alongwith her children was present in her rented accommodation owned by Geeta Ram at Rajhana village. Rahul and Varinder were also .
present there. Thereafter, he interrogated accused Laxmi Devi and her children. They had disclosed that deceased Biru Ram had quarreled with accused Laxmi Devi during day time and in the evening, he came after consuming liquor and quarreled with accused Laxmi. Thereafter, accused Laxmi called Basant and Som Raj, who were residing below their quarter. Accused Basant Kanwar and Som Raj were inside the room and door was bolted from inside when deceased Biru Ram knocked at the door and door was opened, Basant Kanwar slapped Biru Ram and inquired about the quarrel with accused Laxmi Devi. It was also disclosed that all the three persons took away deceased Biru Ram outside the room and thereafter pressed the neck of deceased with dupatta (Chunni) of accused Laxmi Devi and strangulated the deceased and committed murder of Biru Ram. Thereafter, they came to room and a plastic sack was taken out. The dead body of Biru Ram was packed in that plastic sack alongwith dupatta and black colour wooden shawl.
The dead body was buried at Rajhana in the Kufri forest. Thereafter, accused Laxmi Devi was arrested and she made a disclosure statement Ex. PW1/A in the presence of Tehsildar Rural and Chet Ram that she could get the dead body recovered and identify the place in Kufri forest where it was buried. Som Raj accused was also present there. Thereafter, accused Laxmi Devi led the police party to a place in Kufri forest and got ::: Downloaded on - 15/04/2017 18:30:16 :::HCHP 12 recovered the dead body of her husband vide memo Ex. PW1/B. The dead body was identified by Rahul, Varinder and accused Laxmi Devi.
The spot map of house Ex. PW15/A and spot map of forest Ex.
.
PW15/B were prepared. The dead body was taken into possession and inquest papers Ex. PW-8/A were filled and the dead body was sent for post mortem examination through ASI Taranjit Singh. The case property was sent to FSL for chemical examination and its reports Ex.
PW6/A and PW7/B were obtained. Thereafter, these reports were produced before the doctor and final opinion on Ex. PW10/B was obtained.
18. DW-1, Ms. Minakshi Devi was minor. Her statement was recorded on oath. According to her, her father used to consume alcohol and after consuming alcohol, he used to quarrel with her mother. On 09.01.2012, her father came to the house after consuming liquor. He urinated and vomited in the room, which trickled from the floor to the room occupied by Som Raj and Basant. They came up and had altercations with her father. They were also giving beatings to her father on earlier occasions. They requested Som Raj and Basant Kanwar not to give beatings to their father, however, they threatened them and the door was bolted from outside and her father was taken away by accused Som Raj and Basant Kanwar. She alongwith her mother, i.e., accused, her brother Varinder, Shankar, Sanjna remained locked in the room. Thereafter, since her father had not turned, her mother inquired about her father from accused Som Raj. He disclosed that ::: Downloaded on - 15/04/2017 18:30:16 :::HCHP 13 they had only given beatings to deceased Biru Ram and thereafter, they were not aware about his whereabouts. Thereafter, her mother inquired from her aunt (Bua) and other persons. Thereafter, her mother lodged a .
missing report on 21.01.2012. The police had come to their house on 23.01.2012. In her cross-examination, she denied that she has been tutored by her mother outside the Court. She stated that her father had come at 8:30 p.m., on that day. He urinated and vomited after half an hour. She denied the suggestion that her father had objected the presence of accused Basant Kanwar and Som Raj in his presence. She denied that her mother had disclosed to her brother in their presence that her father was killed by her mother in connivance with accused Som Raj and Basant Kanwar. She also denied that her mother had alone gone with accused Basant Kanwar and Som Raj on that night and had committed murder of her father.
19. PW-2 Sh. Geeta Ram deposed that on 23.01.2012, Rahul came to his house and informed that Basant, Som Raj and Laxmi Devi had killed Biru Ram. PW-3, Smt. Mala Devi told her husband Rahul that Biru was not seen. She asked her husband to inquire from Laxmi Devi. Varinder had told that his father has been killed by two neighbours Basant and Hem Raj. Son had told that father was killed in the night with the help of Laxmi Devi. However, accused Laxmi Devi told that Basant and Hem Raj had killed her husband.
20. PW-8 Sh. Rahul Kumar deposed that he telephoned to Bimla to know about Biru. Bimla told him that Biru had not come for ::: Downloaded on - 15/04/2017 18:30:16 :::HCHP 14 the last 8-9 days to Kalibari. He and his wife inquired about Biru from Laxmi Devi (accused). He, Varinder, his wife alongwith other persons had gone to the house of Laxmi Devi on 23.01.2012 in the evening.
.
They asked from Laxmi Devi (accused) and Varinder. Accused Laxmi Devi told that Biru was killed by Basant and Som Raj and she was present with them. Varinder had told that his father had gone to work.
On 24.01.2012, he reported the matter to the police at 8:30 a.m.
21. PW-13, Sh. Varinder Khatri is a material witness. He was 16 years old at the time of incident. According to him, His father used to object the entry of Som Raj and Basant in their house in his absence.
On 09.01.2012, his mother and father had exchanged heated arguments. His father came back at 8:00/8:30 p.m. after consuming liquor and was also having a bottle of liquor with him. Thereafter, his father had altercation with his mother and his mother pushed him outside the room and called Som Raj and Basant. Som Raj and Basant had also quarrled with his father. Thereafter, the room was bolted from outside and his father was taken away by the accused. At about 11:00 p.m., his mother, Som Raj and Basant were talking with each other and he heard that they had committed murder of his father and the dead body was disposed of in a jungle at Kufri. On 23.01.2012, Rahul and Varinder came to their house and they inquired about the whereabouts of his father from his mother. Thereafter, his mother disclosed to them that his father was killed by her in connivance with Som Raj and Basant. His mother has told him not to disclose this incident to anyone.
::: Downloaded on - 15/04/2017 18:30:16 :::HCHP 15In his cross-examination, he has categorically stated that he has not raised any alarm. His statement was also recorded under Section 164 Cr. P.C. In his cross-examination, he has stated that he had disclosed .
this fact to his friends, namely, Bhim and Jeet on 10.01.2012. If he has told this incident to his friends, namely, Bhim and Jeet on 10.01.2012, who were not examined, then what prevented him from disclosing this incident in his relations, who were making quarries from his mother about Biru. Moreover, PW-13 Varinder Khatri, being young boy should have raised alarm when his father was allegedly taken out by the accused and when according to him, he has heard the conversation that the accused had killed his father.
22. According to PW-1 Sh. P.K. Taak, the statement of accused was recorded vide Ex. PW1/A to the effect that she had concealed the dead body of the deceased and she could get it recovered. PW-3, Smt. Mala Devi told that Varinder had told that his father was killed by two neighbours Basant and Hem Ram. The son had further told to her that the father was killed in the night with the help of Laxmi Devi. However, Laxmi Devi (accused) told that Basant and Hem Raj had killed her husband.
23. PW-4 Tek Singh deposed that the accused had also confessed that she had given chunni with which the deceased was killed. Similarly, PW-8 Sh. Rahul Kumar deposed that they had made inquiries from accused. She told that Biru was killed by Basant and Som Raj. She also told that she was present with them.
::: Downloaded on - 15/04/2017 18:30:16 :::HCHP 1624. Mr. P.M. Negi, learned Deputy Advocate General has also argued that the accused made extra judicial confession before PW-4, Sh. Tek Singh, PW-8, Sh. Rahul Kumar and PW-13 Sh. Varinder Khatri.
.
FIR was registered by PW-8 Rahul Kumar vide Ex. PW11/G. However, there is no reference to extra judicial confession made in the FIR.
When the judicial confession has been made by the accused before PW-
8, Sh. Rahul Kumar, he should have necessarily stated it in the FIR.
This is an after thought. Similarly, PW-4 was not known to accused.
There was no occasion with her (accused) to state before him that she had given chhuni, with which the deceased was killed.
25. In Jagta Vs. State of Haryana, AIR 1974 Supreme Court 1545, their Lordships of the Hon'ble Supreme Court has held that the evidence about an extra judicial confession is in the nature of things a weak piece of evidence. Their Lordships have further held that the circumstantial evidence in order to warrant conviction should be consistent only with the hypothesis of the guilt of the accused. Their Lordships have held as under:
"14. So far as the alleged extra judicial confession of the accused is concerned, the prosecution has relied upon the evidence on Ram Singh (PW 4). After having been taken through the evidence of that witness, we find the same to be lacking in credence and devoid of any ring of truth. The police was admittedly present in the office of the co-operative society in village Farmana on the morning of January 15, 1972. We find no reason as to why the accused, instead of surrendering himself before the ::: Downloaded on - 15/04/2017 18:30:16 :::HCHP 17 police, should go to the house of Ram Singh in village Farmana, blurt out a confession before him and ask him to produce the accused before the police. Nothing has been shown to us as to why the accused could not .
himself go and appear before the police. We have mentioned above that an attempt has been made in this case to introduce the story of the recovery of ornaments belonging to Phul Pati deceased from the accused. The attempt of the investigating agency to introduce a false story about the removal of the ornaments of the deceased and their recovery from the accused would in our opinion, also affect the credibility of the evidence regarding the extra judicial confession alleged to have been made to Ram Singh PW. The evidence about an extra judicial confession is in the nature of things a weak piece of evidence. If the same is lacking in probability as it is in the present case, there would be no difficulty in rejecting the same. We are, therefore, not prepared to place any reliance upon the evidence regarding the extra judicial confession of the accused.
17. Lastly, we have the evidence about the injuries which were found on the person of the accused. The explanation of the accused is that those injuries were caused to him by the police. Assuming that the explanation of the accused with regard to those injuries is not trustworthy, this circumstance as well as the circumstance about his being present in his fields at 1 p.m. on the day of occurrence and about his going at sunset time on a pucca road towards his village are hardly sufficient to warrant the conviction of the accused in a serious offence entailing death ::: Downloaded on - 15/04/2017 18:30:16 :::HCHP 18 penalty. It is well established that circumstantial evidence in order to warrant conviction should be consistent only with the hypothesis of the guilt of the accused. The same cannot be said to be true of the .
circumstantial evidence adduced in this case."
26. Their Lordships of the Hon'ble Supreme Court in The State of Punjab Vs. Bhajan Singh and others AIR 1975 Supreme Court 258, have held that when the doctor was unable to find the cause of death because the dead bodies were in decomposed state, it could not be said that the death of the persons whose bodies were recovered was homicidal. Their Lordships have held as under:
13. We have heard Mr. Sharma on behalf of the appellant-State and are of the opinion that no case has been made for interference with the Judgment of the High Court. There is no eye witness of the occurrence and the conviction of the accused is sought to be secured on the basis of circumstantial evidence.
We, however, find that the evidence which has been adduced in this case is far from satisfactory and that it suffers from a number of infirmities. In the first instance, there is no evidence on record to show that the two dead bodies which are alleged to have been recovered in instance of the disclosure statement of Bhajan Singh were those of Bachan Singh and Harbans Singh deceased. The evidence of Dr. Saluja is clear on the point that the features of the persons on whose dead bodies the doctor performed post-mortem were unrecognisable. Question then arises as to ::: Downloaded on - 15/04/2017 18:30:16 :::HCHP 19 whether the death of the two persons whose dead bodies were recovered was homicidal. So far as this aspect is concerned. we find that Dr. Saluja has deposed that he found no marks of ligature on either .
of the two dead bodies. According further to the doctor, he could not find the cause of death because the two dead bodies were in a decomposed state. In the face of the above evidence of the doctor, it is not possible to hold that the death of the two persons, whose bodies were recovered, was homicidal
14. The learned Sessions Judge in the course of his judgment has observed that the doctor who performed post-mortem examination was careless inasmuch as he failed to send the two dead bodies to the Professor of Anatomy who might have been in a position to express opinion after examining the hyoid bone and cervical vertebra as to whether "a death of the two deceased persons was due to strangulation.
Although it may be that it would have been more appropriate on the part of the doctor to have sent the dead bodies to an anatomy expert, the fact that the doctor did not de so cannot be a ground for drawing inference adverse to the accused. The accused cannot be made to suffer because of that omission of the doctor. It would indeed be contrary to all accepted principles to give the benefit of that omission to the prosecution. The onus in a criminal trial is upon the prosecution to prove the guilt of the accused. If there be any gap or lacuna in the prosecution evidence the accused and not the prosecution would be entitled to get the benefit of that.
::: Downloaded on - 15/04/2017 18:30:16 :::HCHP 20In the instant case, the deceased was allegedly buried and his dead body was taken out after two weeks. There are no findings about the cause of the death of the deceased, except the bald statement .
of doctor PW-10 that the deceased died due to strangulation.
27. In Udiya Vs. State of Rajasthan 1997 Cri. L.J. 516, the Division Bench of Rajasthan High Court has held that when the alleged confession was stated to have been made before Geba, who lodged the first information report, however, his version was not in the FIR, the learned Sessions Judge has thus rightly disbelieved the evidence of extra judicial confession. The Division Bench has held as under:
"17. The prosecution had also relied on the extra-
judicial confession of the accused which was said to have been made by him in the presence of Jay Ram. Geba and Shanker. This confession was said to have been made before Geba who lodged the first information report.
However, this version was not there in the FIR. The Learned Sessions Judge has thus rightly disbelieved the evidence of extra judicial confession."
28. The Court while appreciating the extra-judicial confession, has to take into consideration the following circumstances:
(a) to whom it is made;
(b) the time and place of making it;
(c) the circumstances, in which it was made;
and the Court has to look into any suspicious
circumstances.
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21
29. PW-8, Sh. Rahul Kumar deposed that he had gone to the house of the accused alongwith Varinder. PW-13, Sh. Varinder Khatri has stated that on 23.01.2012, Rahul and Varinder came to their house .
and they inquired about the whereabouts of his father from his mother.
Thereafter, his mother disclosed to them that his father was killed by her in connivance with Som Raj and Basant. The prosecution has not examined Varinder Kumar. Now, as far as Rahul is concerned, he has not made any statement regarding the alleged extra judicial confession made by the accused before him in the FIR.
30. PW-13, Sh. Varinder Khatri has remained silent for two weeks. He deposed that on 23.01.2012, Rahul and Varinder came to their house and they inquired about the whereabouts of his father from his mother. Thereafter, his mother disclosed to them that his father was killed by her in connivance with Som Raj and Basant. He would have been the first person to raise hue and cry and reported the matter to the police if his father had been killed by his mother with the help of co-
accused. This statement cannot be relied upon for the simple reason that he remained silent for two weeks.
31. DW-1 Ms. Minakshi has deposed that it was Som Raj and Basant Kanwar, who had given beatings to her father. We have already noticed that conduct of PW-13, Sh. Varinder Khatri was unnatural since he has not raised any alarm at the time when his father was taken out and he has remained silent on 23.01.2012.
::: Downloaded on - 15/04/2017 18:30:16 :::HCHP 2232. According to the prosecution, the motive attributed to the accused was that her husband used to ask her not to have any relations with Basant Kanwar and Som Raj. Basant Kanwar and Som .
Raj were minors at the time of incident and the accused was 33 years old. It has come in the evidence that the deceased used to come drunk to the house and used to urinate and vomit in the room, which used to leak down to the room occupied by Basant Kanwar and Som Raj. This used to lead altercations between the deceased and Basant Kanwar and Som Raj. The possibility of the young boys coming to the house of the deceased cannot be ruled out, since PW-13 was also young boy of 16 years old.
33. PW-10, Dr. Manoj Sharma, deposed that the death of deceased was consistent with ligature strangulation. He issued the post mortem report Ex. PW10/B. However, the final opinion was not given.
We have closely perused Ex. PW10/B. There is no final opinion given by PW-10, Dr. Manoj Sharma, though the Investigating Officer has stated that he has given the final opinion after receipt of F.S.L. reports Ex.
PW6/A and PW7/B. It was necessary for PW-10 to give definitive opinion whether the strangulation has led to asphyxia, hypoxia or there was any venous congestion or shock due to cardiac arrest. He has merely stated that the death was consistent with ligature strangulation.
34. Accordingly, in view of the observations and discussions made hereinabove, the appeal is allowed. The judgment and order, dated 02.09.2013/05.09.2013, are set aside. The accused is acquitted ::: Downloaded on - 15/04/2017 18:30:16 :::HCHP 23 of the charges framed against her. She be released forthwith, if not required in any other case. The fine amount, if already deposited, be refunded to the accused. The Registry is directed to prepare the release .
warrant and send the same to the concerned Superintendent of Jail.
(Rajiv Sharma) Judge (Sureshwar Thakur) Judge July 03, 2015 (bhupender) ::: Downloaded on - 15/04/2017 18:30:16 :::HCHP