Himachal Pradesh High Court
State Of Himachal Pradesh vs Of on 16 September, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 333 of 2010.
Reserved on: 04.09.2015.
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Date of Decision: 16th September, 2015.
State of Himachal Pradesh .....Appellant.
Versus
of
Kamal Swarup ..Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
rt The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
For the Appellant: Mr. Ramesh Thakur, Assistant Advocate General.
For the Respondent: Mr. Ajay Kumar, Senior Advocate with Mr. Dheeraj K. Vashisht, Advocate.
_______________________________________________________ Sureshwar Thakur, Judge The instant appeal is directed by the State of H.P. against the judgment of the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahar, H.P. rendered on 21.12.2009 in Sessions Trial No. 3 of 2004, whereby, the learned trial Court acquitted the accused/respondent of the charge of his having allegedly committed offences punishable under Sections 302, 364, ::: Downloaded on - 15/04/2017 18:57:17 :::HCHP 2 201 of the Indian Penal Code and Section 3(2)(v)(vi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
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2. Briefly stated the facts of the prosecution case are that on 31.12.2002, complainant Daulat Ram reported the matter in the Police Station, Rampur which was incorporated into daily diary disclosing therein that he had of 3 sons and 5 daughters and Roshani Devi being youngest daughter, who had been sitting in her room on 29.12.2002 rt at about 6.00 p.m. and when at about 8.00 p.m., she was called for taking her meal then she was found missing from her room. Despite efforts to trace her by the family members in and outside the house, she could not be traced and thereafter even in the relations she was not found anywhere. The description of the missing daughter by Daulat Ram was given to the police. Thereafter when the daughter of Daulat Ram could not be traced thereafter on 7.1.2003, Daulat Ram made a written complaint to Incharge, Police Station, Rampur for registration of FIR further disclosing therein that his youngest daughter Roshani Devi on 29.12.2002 after performing her household affairs at about 6 p.m., she went towards water source (Bowari) and the family members thought that she ::: Downloaded on - 15/04/2017 18:57:17 :::HCHP 3 might be sitting in her room as she was not to come over in the kitchen because of her menstruation period and when at about 8 p.m., the food was ready and Roshani .
Devi was called from her room then it was found that she was not there in the room and thereafter every effort was made to trace Roshani Devi in the village and in the relations but she could not be traced and thereafter the of matter was reported to the police Station on 31.12.2002 about her missing. Despite efforts to trace her, she could rt not be traced and Daulat Ram suspected in his written complaint that since his daughter had registered a rape case against Kamal Swarup in Police Station, Rampur and in that case the date has been fixed from 6.01.2003 to 8.1.2003 for the recording of the evidence of the prosecution witnesses and she was to give her evidence before the Court on 6.1.2003 but she did not appear in the Court for her evidence and in addition to the rape case she had also filed a maintenance petition before the Court in which the Court had awarded maintenance at the rate of Rs.500/- per month vide order dated 14.11.2002 in favour of Roshani Devi and her son Akshay Kumar. Shri Daulat Ram father of Roshani Devi further suspected in his written complaint that Kamal Swarup had taken away his daughter ::: Downloaded on - 15/04/2017 18:57:17 :::HCHP 4 Roshani Devi so as to prevent her from giving evidence before the Court and to Claim further maintenance. He further suspected therein that either his daughter had .
been murdered or had been forcibly kept behind and thereby prevented her from giving her evidence in Court against Kamal Swarup. Sh. Daulat Ram further claimed in his written complaint that had his daughter gone in the of relations somewhere she must had appeared for her evidence before the Court and thereby Sh. Daulat Ram rt sought legal action against Kamal Swarup. The FIR on the written complaint of Daulat Ram was registered and thereafter accused Kamal Swarup was arrested on 8.1.2003. On 18.1.2003 a telephonic information was received from the complainant Sh. Daulat Ram from village Deothi that the dead body of his missing daughter was found buried in the land and some of the body parts had been taken out by the wild animals including the clothes were lying outside. The police went to the spot and on 19.1.2003, the dead body of Roshani Devi was found in the shape of skeleton in the field in the presence of the witnesses as the police accompanied with Medical Officer, Magistrate and dog squad visited the spot and the dog squad after getting the smell of the dead body of the ::: Downloaded on - 15/04/2017 18:57:17 :::HCHP 5 deceased and her clothes and belongings and thereafter the dog squad led the police party to the door of the kitchen of the accused Kamal Swarup as well as gate to .
the house of the accused Kamal Swarup. The dead body was found in the shape of skeleton as only the portion of the head and face above the neck was found intact and below neck there was only skeleton on the dead body. The of right leg and left arm were missing from the skeleton.
There was dhatu/Scarf having two knots over the throat rt and the dead body was identified by the father of the deceased Roshani Devi to be of Roshani Devi from her face and the clothes of the deceased were found in and around the dead body in the field. The police also found one empty small bottle of Dabur Janam Ghutti lying at some distance from the dead body giving smell of some poisonous substance and the grass over the spot was pressed. The police also recovered and taken into possession one small and some long hair lying on the spot as well as the clothes and the bones were also taken into possession on the spot. The inquest report was prepared on the spot and a team of doctors after observing the condition of the dead body on the spot had sent the dead body for expert opinion and autopsy to Forensic Expert, ::: Downloaded on - 15/04/2017 18:57:17 :::HCHP 6 IGMC , Shimla. The FIR which was initially registered qua the missing of the deceased for an offence under Sections 364 and 365 of the IPC, was converted into an offence .
under Section 302 of the IPC as well. The accused was arrested on 8.1.2003 and thereafter sent to judicial custody. On 22.1.2003, the police custody of the accused was taken and thereafter the medical exmaination of the of accused was sought in which the injuries were observed on the body of the accused. The accused during police rt custody made disclosure statement to get his store room identified in the ground floor in his house from where he had taken thyodine in a small bottle of Dubur Janam Ghutti and in pursuance thereof two bottles of thyodine were recovered at the instance of the accused. The accused also produced during custody his clothes one sweater, pyjama, one shirt which were put on by the accused on the date of occurrence. The scene of occurrence was also visited by the Forensic Expert who lifted some objects lying on the spot which were sent for examination and further observed the presence of blood stains over the spot and the spot was found to be remained unnoticed if any person remains seated there or in the lying down position taking into consideration its surroundings with the ::: Downloaded on - 15/04/2017 18:57:17 :::HCHP 7 vegetation including trees and further suggested the presence of wild animals including birds etc., on the spot.
As per the postmortem report, it appeared to be a case of .
homicidal strangulation owing to ligature material i.e. dhatu tied with two knots around the neck of the deceased sequeling antemortem fracture of hyoid bone and thyroid cartilage. The time since death and postmortem of the of dead body had been opined around three weeks.
3. On conclusion of the investigation, into the rt offences, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure was prepared and filed in the competent Court.
4. The accused was charged by the learned trial Court for his having committed offences punishable under Sections 302, 364, 201 of the Indian Penal Code and under Section 3(2)(v)(vi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 . In proof of the prosecution case, the prosecution examined 33 witnesses.
On conclusion of recording of the prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded by the trial Court, in which the accused claimed false implication. In defence, he examined three witnesses.
::: Downloaded on - 15/04/2017 18:57:17 :::HCHP 85. The learned trial Court on an appreciation of the evidence on record, returned findings of acquittal in favour of the accused.
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6. The State of H.P. is aggrieved by the findings of acquittal recorded by the learned trial Court. The learned Assistant Advocate General appearing for the appellant/State has concertedly and vigorously contended of that the findings of acquittal recorded by the learned trial Court are not based on a proper appreciation of evidence rt on record, rather, they are sequelled by gross mis-
appreciation of material on record. Hence, he contends that the findings of acquittal be reversed by this Court in the exercise of its appellate jurisdiction and be replaced by findings of conviction.
7. On the other hand, the learned defence counsel has with considerable force and vigour, contended that the findings of acquittal recorded by the learned Court below are based on a mature and balanced appreciation of evidence on record and do not necessitate interference, rather merit vindication.
8. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record.
::: Downloaded on - 15/04/2017 18:57:17 :::HCHP 99. Deceased Kumari Roshni Devi had lodged an FIR against the accused/respondent herein in July, 1999 with Police Station, Rampur Bushahr alleging therein the .
perpetration of forcible sexual intercourse upon her by the accused. The deceased/prosecutrix in sequel to the perpetration of forcible sexual intercourse upon her by the accused/respondent had delivered a male child. It was of claimed by her that the male child delivered by her was begotten from the loins of the accused/respondent. She rt had before the Court of the learned Sub Divisional Judicial Magistrate, Rampur Bushahr filed a petition for maintenance against the accused/respondent. The court of the learned Sub Divisional Judicial Magistrate had awarded to the deceased prosecutrix a sum of Rs.500/-
per month as maintenance against the accused/respondent herein. The deceased/prosecutrix was to depose as a witness before the learned Sessions Judge, Kinnaur at Rampur Bushahr, before whom the accused/respondent was facing trial for his having allegedly committed an offence punishable under Section 376 of the IPC. The deposition of the deceased/prosecutrix before the Court of the learned Sessions Judge, Kinnaur at Rampur Bushahr was to be recorded on 06.01.2003.
::: Downloaded on - 15/04/2017 18:57:17 :::HCHP 10Summons had been issued to her to depose as a prosecution witness before the learned Sessions Judge, Kinnaur at Rampur Bushahr and which summons had .
come to be served upon the deceased/prosecutrix about 2- 3 days prior to her disappearance. The father of the deceased/prosecutrix PW Daulat Ram given the factum of the deceased prosecutrix being untraceable was of constrained to hence on 31.12.2002 lodge a report with Police Station, Rampur Bushahr disclosing therein the rt factum of his daughter Kumari Roshani Devi being untraceable. The information purveyed by the father of the deceased/prosecutrix to Police Station, Rampur Bushahr on 31.12.2002 stood incorporated in daily diary No. 10, copy whereof is comprised in Ex.PW1/A. Furthermore, when the deceased prosecutrix did not on 06.01.2003 appear before the learned Sessions Judge, Kinnaur at Rampur Bushahr for which date summonses had been served upon her for the recording of her deposition before the Court aforesaid in the Sessions trial which the accused was facing for his having committed an offence punishable under Section 376 of the IPC, prodded the father of the deceased prosecutrix to lodge a written complaint on 7.01.2003 comprised in Ex.PW1/B with the ::: Downloaded on - 15/04/2017 18:57:17 :::HCHP 11 police station concerned. Therein he had reared a suspicion against the accused/respondent qua his having committed the murder of the deceased prosecutrix.
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10. PW-15 Smt. Attar Dasi, the mother of deceased Roshani Devi subsequent to the disappearance of the deceased when had in the middle of the January, 2003 proceeded to collect grass in the village, had noticed of movement of crows in the field towards the upper side of village Deothi. She proceeded towards the aforesaid field rt and found clothes of her deceased daughter, thereupon she returned home and informed her husband PW-1 Daulat Ram about the location in the fields of the clothes of her deceased daughter. Subsequently, PW-1, the father of the deceased prosecutrix arrived at the relevant spot along with the villagers and detected the body of the deceased prosecutrix. On the body of the deceased having come to be detected, information was purveyed by PW-1 Daulat Ram to the police station concerned qua its detection. On body of the deceased having stood detected by PW-1 Daulat Ram and information qua the factum of its detection having been purveyed by him to the police agency concerned, led the Investigating Officer to reach the place of its detection besides location. It was taken ::: Downloaded on - 15/04/2017 18:57:17 :::HCHP 12 into possession vide memo Ex.PW10/A. It came to be identified by PW-1 to be the dead body of Roshani Devi.
The clothes of the deceased and other articles lying .
thereon including small bottle were taken into possession vide seizure memos Ex.PW3/H, Ex.PW3/K, Ex.PW3/M, Ex.PW3/N, Ex.PW3/O and Ex.PW3/P, Ex.P-1 to Ex.P-15.
11. On preparation of Ex.PW10/A, PW-9, Dr. of Adi Gupta, Medical Officer, CHC, Taklech on 19.01.2003 visited the spot where the body of the deceased was rt located. He was accompanied by the police, besides by Dr. Padam Dev Sharma, Block Medical Officer, CHC Nankhari.
He examined the body of the deceased in the fields at Village Deothi. He deposes that he had observed that clothes were lying scattered about 100 meters from the dead body having some stains and they comprised of salwar red flowerish, kameez red flowerish, jacket white and red, sweater grey and black print, handkerchief reddish flowerish, bra white, socks white and a pair of shoes The body was identified to be of Roshani Devi by PW-1 Daulat Ram, the father of the deceased. He further deposes that the body was lying in the fields over dry grass with head tilted to one side and the whole body was in one piece. He deposes that there were long black hair ::: Downloaded on - 15/04/2017 18:57:17 :::HCHP 13 on the head but the eyes were not in the eye sockets and one of the ear pinna was also missing and the rest of the skin of the face was nearly intact. He has testified that .
there was a pinkish cloth around the neck with two knots and the skin of the neck was not present and the underlying tissues were visible and there were stains on pinkish cloth around the neck. He testifies that both the of arms were missing and there was no skin, soft tissue or organ in the thorasic and abdominal region. The rib cage rt and the vertebrae column were visible, besides pelvic bone without any soft tissue or organ was also visible. The right leg was present without any skin or soft tissue. The right foot was missing. The dead body was sent for expert opinion and autopsy. He deposes that the clothes aforesaid and the bottle of some insecticide, as also, the dead body was handed over to the police in a sealed box.
PW-8, Dr. Piyush Kapila, Registrar Forensic Medicines, IGMC Shimla conducted the postmortem examination of the dead body on 20.01.2003. He has proved Ex.PW8/A which constitutes the postmortem report prepared by him after his having subjected the dead body to postmortem examination. He in his deposition recorded on oath has also deposed therein that after his receiving the report of ::: Downloaded on - 15/04/2017 18:57:17 :::HCHP 14 the chemical examiner, in his opinion the cause of demise of the deceased is attributable to hers being strangulated with "dhatu" (Ex.P-15). In Ex.PW8/A, he has recorded the .
hereinafter extracted details which he observed to be existing on the body of the deceased when he subjected it to postmortem examination:-
"The body was enclosed in a sealed plywood box and was wrapped in a white of cloth with no cloth or any other belonging except for a "dhatu" (a kind of scraf which is usually worn over head by females of rt upper hilly region of Himachal Pradesh) which was present in the neck of the body with two knots on right side. The length of the skeleton from head to styloid process of tibia was 60". Whole body was skeletonized except for Head and upper neck region. There was faint smell of decomposition. No live or dead magoots were present either over the body or in the belongings or wrapping material.
Head.
Long black, scalp hair, noncurly nondyed with black 'Paranda' in situ were present over all of the scalp without any injury. Hair were not easily pluckable. Small pieces of dried leaves and grass were entangled in the tuft of hair. There was no mud or dust present over or entangled in the hair. There was no sand or mud particles in and around mouth. The total circumference of the head was 51 cms.::: Downloaded on - 15/04/2017 18:57:17 :::HCHP 15
Biparietal diameter of the head was 14 Cms. Maximum length of the skull antero- posteriorly was around 19.4 Cms. Scalp tissue was present without any external or internal injury, no underlying fracture was .
found. The medial 1/3 of the coronal suture was not having any straightening endo/ecotocranially. Inside the cranial cavity the brain matter has not undergone putrefactive liquefaction and was preserved to a greater extent. No of intracranial heaemorrhage was found (some amount of brain was preserved for the purpose of quantitative estimation of any poison if present).
rt Face.
Skin was normal, dry, mummified, parchmentised, without any breach except for a 5 x 6 cms. Patch of skin not present which is a post mortem injury over chin and underlying mandible was visible. The eye balls were not present in the sockets as being eaten away by vultures. Tip of the nose was shriveled and dried.
Dental formula is given as under:
All permanent teeth present except for third molar which is only present in the upper left quadrant and was impacted and rest all quadrants were not having any third molar making total number of teeth as 29.
Neck.
Ligature material: There was a "Dhatu' pink flowers having clotted blood stains in the neck as ligature made of semisynthetic material present with two knots. The inner circumference of the ::: Downloaded on - 15/04/2017 18:57:17 :::HCHP 16 ligature was around 31 cms. The ligature material was cut away from the knots and cut ends were tied with thread and sealed with one seal of "DKG" knots were preserved as such for exhibit purposes.
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After opening the knot the maximum length of the Dhatu including knot area was 39 cms. No skin or underlying soft tissue was present. 6 cms long larynx was present with hyoid bone attached at upper end.
After blunt dissection an antemortem of fracture was found on the junction between middle and distal 1/3 of the left greater cornu of hyoid bone having contusion underlying the muscles. There was rt antemortem fracture of the left Cornu of the thyroid cartilage with contusion below it. (Both hyoid and thyroid cartilage were preserved for the exhibit purposes). No other tissue was present in the neck except for the vertebrae which were joined with each other with ligaments. No other injury present over neck.
Thorax No soft tissue or organ was present except for bony thoracic cage. Medial costal ends of the ribs were not present. 8 th rib of the right side and 9 th rib of left side were not present and were detached near the vertebral ends. No injury except for gnawing marks was present. Both clavicles and scapulae were present attached with each other and medial ends of the scapulae were eaten away by animals. The clavicles were attached to the sternum and medial ends of the clavicles were fused. Abdomen and Pelvis.
::: Downloaded on - 15/04/2017 18:57:17 :::HCHP 17No soft tissue or visceral organs were present. No evidence of any injury was present. All pelvic bones were present in anatomical position except for coccyx which was not present with the help of .
ligaments. Except for SI all other sacral vertebrae were fused with each other. Upper Extremity.
25 cms. Long humerous was present over right side attached with ligaments with the glenoid cavity. Lower end of the of humerous was not present and was having gnawing marks. No other bone of upper extremity was present.
Lower Extremity.
rt Right femur, tibia, fibula and patella were present attached with each other in anatomical position with ligaments having gnawing marks. Head of the femur was present on left side and rest was eaten away by animals. No other bone or soft tissue of the lower extremity was present. No other injury was present.
Vertebral Column.
All vertebrae were present in
anatomical position with the help of
ligaments except for coccyx. There was no injury found over the vertebral column. Conclusion.
A single, human, female, body with facial architecture preserved. The body belonged to a female as there was face preserved without any moustaches or beard and also because of the pelvic bones having female anatomy. The age of the deceased was around 24 years.
Race.
::: Downloaded on - 15/04/2017 18:57:17 :::HCHP 18The facial architecture was preserved and so ethnically the deceased belonged to hilly areas of Himachal Pradesh. Cephalic index is equal to 72 which is consistent with Caucasoid people .
and matches with people of upper Shimla area.
Stature.
The length of the skeleton from head of styled process of tibia was 60". Adding length of heel and soft tissue in the above of length, the living height of the deceased would be around 5 feet and 2 inches+/- 2 inches.
Identification mark.
rt No peculiar identification mark was found. However, the facial architecture of the faces was preserved and on the basis of the clothes (which were not shown to the undersigned) the relatives of the deceased identified her. One small piece of the bone has been preserved for identification. Injuries.
Except for antemortem fracture of hyoid bone and thyroid cartilage no other antemortem injury could be appreciated. The extremities were not separated by any sharp weapon and they were having only gnawing marks almost on every bone.
The mean temperature of Deothi area where the body was found in the month of December and January (which were considered as coldest months) near snowline is around 5-10 centigrades, keeping in view facial tissues had undergone mummification, the brain had not undergone putrefactive liquefaction, ::: Downloaded on - 15/04/2017 18:57:17 :::HCHP 19 absence of maggots, it was opined that the time since death and the examination of the body was around 3 weeks. As per post- mortem report Ext.PW-8/A and after receipt of report of Chemical Examiner, this .
witness has opined that the death of Roshani Devi has been caused with Dhattu (scarf) Ext.P-15 which was found around the neck of the deceased."
12. For providing sustenance to the espousal of the prosecution that the deceased was subjected to homicidal of strangulation by the accused by his taking to tie two knots around the neck of the deceased with ligature material rt "Dhatu" comprised in Ex.P-15, which as deposed by PW-8, begot fracture of hyoid bone and thyroid cartilage, it is incumbent upon this Court to, with incision and with circumspection analyse the testimony of PW-8 in its entirety and in entwinement with the deposition of PW-9 Dr. Adi Gupta, who on 19.01.2003 had along with the police agency concerned proceeded to the place where the body of the deceased was previously located by PW-1 Daulat Ram, the father of the prosecutrix. An advertence to the testimony of PW-9, who along with the police agency concerned visited the site of occurrence where the body of the deceased was located/detected by PW-1 Daulat Ram, is imperative for discerning therefrom the extent to which the body of the deceased was ::: Downloaded on - 15/04/2017 18:57:17 :::HCHP 20 dismembered arising from its having come to be eaten away, besides gnawed at by wild animals. He therein has recorded a vivid account as reproduced hereinafter qua .
the extent and the magnitude of dismemberment entailed upon the limbs of the deceased:-
"Both the arms were missing. There was no skin, soft tissue or organ in the thorasic and abdominal region. The rib cage and the vertebrae column were of visible. The pelvic bone without any soft tissue or organ was also visible. The right leg was present without any skin or soft tissue. The right foot was missing."
rt However, he has been consistent in his deposition in his examination-in-chief as well as in his cross-examination in pronouncing the fact that he had not removed the ligature material "Dhatu", Ex.P-15 with two knots tied around the neck of the dead body. Also PW-8 has deposed that skin and soft tissues were present on the neck below the "dhatu". Apparently hence it appears that PW-9 who along with the police agency had visited the site of location/detection by PW-1 of the dead body of Roshani Devi and had then not removed ligature material, Ex.P-15 tied with two knots around the neck of the deceased, as such his deposition qua his having observed both skin as well as soft tissues being present on the neck below the ligature material, is to be tentatively accorded sanctity as ::: Downloaded on - 15/04/2017 18:57:17 :::HCHP 21 such observations made by him may have ensued from his having minimally lifted Ex.P-15 to enable him to gauge the condition of the skin/tissues underneath it, even .
without his having removed Ex.P-15 tied around the neck of the deceased,. Concomitantly tentatively then it has to be held that "dhatu" Ex.P-15 was used as a ligature material to strangulate the deceased. However, before of imputing implicit reliance to the deposition of PW-9 and thereupon concluding with firmness that the ligature rt material aforesaid was used to strangulate her for begetting her demise, it is imperative to bear also in mind, besides not letting unslighted the fact as deposed by PW-
8 in his examination-in-chief, while his describing the injuries observed by him to be existing on the body of the deceased, his vividly pronouncing therein the factum of occurrence of fracture of hyoid bone and of thyroid cartilage of the body examined by him, besides his having also bespoken therein the factum of gnawing marks of animals existing on every bone. The factum as observed by him which stand recorded in Ex.PW8/A of ante mortem injuries existing on the body of the deceased and of gnawing marks existing on almost every bone does instantaneously render the testimony of PW-9 of his having ::: Downloaded on - 15/04/2017 18:57:17 :::HCHP 22 not removed the ligature material, Ex.P-15 with two knots tied around the neck of the deceased for discerning on its removal whether the soft skin or tissues under the ligature .
material were intact or not to be bereft of veracity, necessarily then it cannot constitute unshakable foundation for succoring unimpeachable credence to the opinion of PW-8 that Ex.P-15 begot the fracture of hyoid of bone, besides of thyroid cartilage, rather want of its removal therefrom cannot render emanable an unfilinching rt inference of it being the ligature material or if the inference aforesaid as has emanated from PW-8, it for the reasons to be assigned hereinafter cannot inspire the unbreached confidence of this Court. As a corollary also, it is to be deduced that he did remove the ligature material, Ex.P-15 tied with two knots around the neck of the deceased and has prevaricated while testifying in Court that he did not do so merely for sustaining the propagation by the prosecution that the fracture of hyoid bone and thyroid cartilage were not begotten by theirs being gnawed at by wild animals, rather by the user thereon of "dhatu" Ex.P15. Enfeeblement in entirety to the espousal by the prosecution of "dhatu" Ex.P-15 having begotten the fracture of hyoid bone, besides of thyroid cartilage is ::: Downloaded on - 15/04/2017 18:57:18 :::HCHP 23 marshaled by the fact as adverted to hereinabove, of PW-8 while describing in Ex.PW8/A the injuries noticed by him on the dead body of the deceased having also divulged .
therein that he had noticed the existence of gnawing marks almost on every bone. The emanation of the aforesaid disclosure in the deposition of PW-8 entrenchedly underscores the factum of both PW-8 and of PW-9 having prevaricated qua the existence of soft skin and tissues below the ligature material merely to give rt boost to the propagation of the prosecution of the fracture of hyoid bone, besides of thyroid cartilage having been begotten by user of ligature material, Ex.P-15 tied with two knots around the neck of the deceased. For reiteration, such prevarication gets stalled in the face of a candid depiction in the testimony of PW-8 of gnawing marks existing on every bone of the body examined by him whichcommunication therein is to be held to be encompassing even the hyoid bone, besides the thyroid cartilage. Necessarily then, the fracture of hyoid bone and thyroid cartilage is to be held to have occurred on account of theirs having come to be gnawed at by wild animals, more so when the depositions of PW-9 and PW-8 pronounce the factum of dismemberment of vital portions ::: Downloaded on - 15/04/2017 18:57:18 :::HCHP 24 of the body of the deceased having occurred on account of predation thereupon by wild animals.
13. Now in the face of the fact that PW-1 Daulat .
Ram, the father of the deceased initially located/detected the body of the deceased hence such location by him of the dead body of the deceased subsequently led PW-9 Dr. Adi Gupta to visit along with the police agency the place of of its location/detection, besides when PW-9 has been unequivocal in his deposition that the clothes of the rt deceased were found lying at a distance of about 100 meters from the dead body, it is enigmatic that the ligature material with two knots tied around the neck of the deceased continued to exist, even when the body of the deceased was, after the disappearance of the latter on 29.12.2002 detected more than two weeks thereafter. The enigma or the aforesaid conundrum comes to be resolved when this Court proceeds to conclude given the initial detection or location of the dead body at the instance of PW-1, of his having either prior to the visit of PW-9 along with the police agency to the site concerned, tied it around the neck of the deceased or his having colluded with the Investigating Officer to tie it around the neck of the deceased for portraying that it constitutes the ligature ::: Downloaded on - 15/04/2017 18:57:18 :::HCHP 25 material which begot the fracture of hyoid bone, besides the fracture of the thyroid cartilage. Necessarily then, this Court is constrained to dispel the factum of the ligature .
material having been used by the accused or it having sequelled the fracture of hyoid bone or of thyroid cartilage.
Apart therefrom, the fact that recovery of a vial, Ex.P-1 was effected from the vicinity of the dead body of the of deceased by the Investigating Officer under memo Ex.PW3/E purportedly to convey it that it contained poison rt and was administered by the accused to the deceased, for giving succor to which propagation, the Investigating Officer also proceeded to recover under memo Ex.PW3/K, a bottle of poison, Ex.P-14, contents whereof were disclosed by the accused in his interrogation by the Investigating Officer, to have been poured into a small bottle Ex.P-1 recovered from the vicinity of the dead body of the deceased, which endeavour of the Investigating Officer magnifyingly appears to manifest the fact that the Investigating Officer was clueless of the reason for the demise of the deceased and was contriving a mechanism to ingeniously implicate the accused in the alleged commission of murder of the deceased. More so, when the demise of the deceased has not been underscored by the ::: Downloaded on - 15/04/2017 18:57:18 :::HCHP 26 prosecution to have been sequelled by consumption of poison rather has been attributed to the user of ligature material by the accused to beget the fracture of hyoid .
bone of the neck of the deceased, besides the fracture of thyroid cartilage, which reason too as attributed by the prosecution for the demise of the deceased has been for the reasons assigned hereinabove, held to be also not of carrying any tenacity. In aftermath, the attribution by the prosecution to the accused of his having used ligature rt material, Ex.P-15, to beget the fracture of hyoid bone of the neck of the deceased, besides of thyroid cartilage appears to be also a well devised strategem on its part to ingeniously maneuver the implication of the accused.
14. The unfoldment by the aforesaid discussion is that the prosecution has been unable to sustain its plea against the accused of his having tied the ligature material around the neck of the deceased hence begotten the fracture of hyoid bone, besides the fracture of thyroid cartilage, sequelling her demise. With the aforesaid plea of the prosecution getting foundered a vital link in the chain of circumstances against the accused comes to be severed as well as broken.
::: Downloaded on - 15/04/2017 18:57:18 :::HCHP 2715. Another link in the chain of circumstances which has been propagated by the prosecution to connote the guilt of the accused is comprised in the testimony of .
PW-4, Smt. Gauri Devi, the younger sister of deceased Roshani Devi, who has in her deposition comprised in her examination-in-chief proclaimed the factum of hers in the evening of 29.12.2002 having last seen the accused in the of company of her deceased sister. The legal efficacy of the above deposition in case stands uneroded would be rt immense, in concluding qua the guilt of the accused in the commission of the offences for which he was charged and stood tried before the learned trial Court. However, before imputing implicit reliance to the testimony of PW-4 unfolding the factum of hers having last seen the accused in the company of the deceased, it is imperative to bear in mind the fact that PW-1 Daulat Ram, the father of the deceased who had proceeded on 31.12.2002 to purvey information to the Police Station concerned qua the factum of his daughter being untraceable, besides qua hers having gone missing, had omitted to divulge to the police authorities concerned the factum of his daughter, PW-4 having last seen the accused in the company of the deceased. Even though daily diary No.10, copy whereof is ::: Downloaded on - 15/04/2017 18:57:18 :::HCHP 28 Ex. PW 1/A came to be recorded by the police agency concerned on communication to it, by the father of the deceased qua the factum of the deceased having gone .
missing or hers being untraceable, yet it omits to divulge therein the factum of PW-4 having last seen the former in the company of the accused, necessarily then the apt inference is that at the stage of recording of PW1/A on of 31.12.2002 by the police agency concerned at the instance of the father of the deceased, the latter was rt unaware of the factum of PW-4 having last seen the accused in the company of the deceased. However, his unawareness qua the factum of PW-4 as deposed by her in Court of hers having last seen the accused in the company of the deceased and his omitting to disclose it to the police agency concerned on 31.12.2002 which sequeled the scribing of Ex.PW1/A by it wherein there is an omission of narration of PW-4 having last seen the accused in the company of the deceased would be explicable, besides would also render the deposition in Court of PW-4 qua hers having last seen the accused in the company of the deceased, in the event of a wholesome analysis of her deposition comprised in her examination-in-chief and cross-examination omitting to both unearth the factum of ::: Downloaded on - 15/04/2017 18:57:18 :::HCHP 29 there being no disclosure by her to her father on 29.12.2002 of hers having last seen the accused in the company of the deceased, besides there being no .
emanation on a wholesome reading of her testimony of the fact aforesaid as deposed by her in Court being not either improved or embellished arising from the fact of hers omitting to disclose it earlier to the Investigating of Officer at the stage contemporaneous to the recording of her statement under Section 161 of the Cr.P.C. by him, to rt be ingrained with veracity. A piercing analysis of her testimony unfolds the fact that she had disclosed to her father on 29.12.2002 of the accused having called the deceased. Since the father of the accused had come to be apprised by PW-4 Gauri Devi of the deceased having proceeded to meet the accused necessarily then the said fact ought to have been transmitted further by PW-1 to the police agency concerned when he on 31.12.2002 proceeded to lodge a report with it qua the missing of his daughter. Its non occurrence therein constrains this Court to conclude that PW-4 is prevaricating qua the fact of hers having disclosed to her father on 29.12.2002 the fact of the deceased on the date aforesaid having proceeded to meet the accused. Apart therefrom PW-4 having deposed ::: Downloaded on - 15/04/2017 18:57:18 :::HCHP 30 the factum of hers having last seen the accused in the company of the deceased on 29.12.2002 only in Court whereas she omitted to divulge the said fact to the .
Investigating Officer when he recorded her statement under Section 161 of the Cr.P.C. paves way for an inference that the version of PW-4 comprised in her examination-in-
chief of hers having last seen on 29.12.2002 the accused of in the company of the deceased, is an embellished or an improved version, which hence is ridden with the taint of rt falsehood. In sequel, no reliance can be placed upon the testimony of PW-4 in hers pronouncing therein the factum of hers having last seen on 29.12.2002 the accused in the company of the deceased. Consequently, another potent link in the chain of circumstances also gets dismembered.
What finally shatters the testimony of PW-4 qua the fact as deposed by her in Court of hers having last seen on 29.12.2002 the accused in the company of the deceased stands constituted in the fact that even on 7.01.2003 when the father of PW-4 lodged a report comprised in Ex.PW1/B with the police station concerned, the said fact also does not find occurrence therein rather the narration therein merely portrays the factum of his rearing a ::: Downloaded on - 15/04/2017 18:57:18 :::HCHP 31 suspicion against the accused of his having committed the murder of the deceased.
15. Under Ex.PW2/A, PW-2 Ram Chander .
recorded a statement before the Sub Divisional Judicial Magistrate, Rampur Bushahr, on 31.01.2003 displaying therein the factum, that on his visiting the house of the accused on 29.12.2002 at about 7.45 p.m., he noticed one of injury/scar mark on his face and when he concerted to elicit from him the reason for its occurrence a disclosure rt was made to him by the accused that he had murdered Kumari Roshani Devi. On the strength of proof lent by PW-
2 to Ex.PW2/A recorded at his instance by the Sub Divisional Judicial Magistrate, Rampur Bushahr, on 31.01.2003 and its comprising the purported extra judicial confession made by the accused to PW-2, the prosecution canvasses that the aforesaid constitutes proof of a clinching link in the chain of circumstances for providing sustenance to the prosecution case. However, the existence of one injury/scar mark on the face of the accused as observed by PW-2 on 29.12.2002 when he visited the house of the accused at 7.45 p.m., whose existence thereon prompted him to seek an explanation from the accused qua the reason for its existence, ::: Downloaded on - 15/04/2017 18:57:18 :::HCHP 32 whereupon the accused made the purported extra judicial confession to him which came to be proclaimed by PW-2 under Ex.PW2/A on 30.01.2003 before the Sub Divisional .
Judicial Magistrate, Rampur Bushahr, is in conflict with the MLC Ex.DW3/A prepared on 8.01.2003 when the accused came to be arrested. With a portrayal in Ex.DW3/A prepared on 8.01.2003 of no injury on the face of the of accused existing hence conflicting with, besides in dire contradiction qua the factum as disclosed by PW-2 in rt Ex.PW2/A of his on 29.12.2002 on his visiting the house of the accused having observed one injury/scar mark on his face, naturally then falsehood is lent to the factum as divulged by PW-2 in Ex.PW2/A of his having on 29.12.2002 at about 7.45 p.m., noticed a facial injury on the person of the accused. The sequeling effect thereof is that when the portrayal in EX.PW2/A of his having on 29.12.2002 visited the house of the accused and his having observed an injury/ a scar mark on his face, is not credible, necessarily when the aforesaid factum loses its creditworthiness or when its credence is breached, the factum of PW-2 having visited the house of the accused on 29.12.2002 at 7.45 p.m. and on his having elicited from him the reason for the existence of injury/scar mark on his face, sequeled the ::: Downloaded on - 15/04/2017 18:57:18 :::HCHP 33 accused making an extra judicial confession to him qua his having murdered the deceased, is also bereft of any credibility. Amplifyingly, when there exists a graphic .
display in MLC Ex.PW17/A prepared 22.01.2003 qua the accused, of linear scars on the right side of his head, also gears an inference that the said reflection in Ex.PW17/A conflicts with the reflection in Ex.PW2/A of PW-2 having of noticed a scar mark on his face when he visited the house of the accused on 29.12.2002, especially when Ex.PW2/A rt has been recorded on 31.01.2003, subsequent to the preparation of Ex.PW17/A, with the revelations aforesaid existing therein, it appears that the injuries pronounced in Ex.PW17/A are a sequel to the accused having been tortured in police custody, more so when the prior MLC prepared qua him on his arrest on 18.01.2003 omits to disclose the existence of any injuries on his person, besides with PW-2 having remained reticent since 29.12.2002 till 31.03.2003 qua the factum of the accused having made before him an extra judicial confession qua his role in the murder of Kumari Roshani Devi, accentuates a deduction from this Court that it is a wholly contrived as well as an engineered mechanism to falsely implicate the accused. Consequently, no reliance can be placed upon ::: Downloaded on - 15/04/2017 18:57:18 :::HCHP 34 it, for constraining this Court to conclude that it provides clinching proof of an important link in the chain of circumstances. In aftermath with Ex.PW2/A, proved by .
PW-2, losing its credibility, another crucial link in the chain of circumstances gets delinked.
16. PW-12 Jivat Ram, in his examination-in-
chief has deposed that when he had visited the police of station, Rampur Bushahr, he had noticed that the police officials were interrogating the accused, during course rt whereof, the accused in his presence had made a confession qua his having committed murder of deceased Roshani Devi and his having also administered poison.
However, reliance, if any, by the prosecution on the statement of PW-12 is mis-founded, besides stands grounded in the face of the confession aforesaid which the accused made to the police during his interrogation by the latter and which PW-12 over heard, being inadmissible.
Consequently, on strength thereof the prosecution cannot succeed in persuading this Court that it constitutes a valid and tenacious piece of evidence for forming thereupon a conclusion qua the guilt of the accused.
17. The accused was facing trial before the learned trial Court for his having perpetrated forcible ::: Downloaded on - 15/04/2017 18:57:18 :::HCHP 35 sexual intercourse upon the deceased. The deceased was to depose as a prosecution witness before the learned trial Court on 6.1.2003, hence, the prosecution contends that .
to thwart the prosecutrix to depose as a witness, the accused had murdered her. Further it is also canvassed before this Court that hence when the motive stands established, this Court ought to pronounce upon the guilt of of the accused. However, even if assuming that the motive nursed by the accused to eliminate the deceased may stand rt substantiated, nonetheless, even if it stands substantiated, the dismemberment or severance of the afore referred links in the chain of circumstances cannot give any sustenance to the factum of the accused while his carrying in his mind the aforesaid motive his having murdered the deceased. In sequel, the mere carrying of a motive or nursing of a motive by the accused in his mind, is insufficient to sway this Court to conclude that given its mere existence in the mind of the accused can sustain a finding qua the guilt of the accused for the offence for which he stood charged and was subjected to trial, especially when for reiteration the predominant links aforesaid in the chain of circumstances have suffered severance, besides dismemberment. Consequently, this ::: Downloaded on - 15/04/2017 18:57:18 :::HCHP 36 Court find no force in the submission of the prosecution that the mere existence of a motive in the mind of the accused is sufficient to constrain this Court to record .
findings of conviction against the accused for the offences for which he stood charged and tried by the learned trial Court.
18. For the reasons which have been recorded of hereinabove, this Court holds that the learned trial Court below has appraised the entire evidence on record in a rt wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned trial Court does not suffer from any perversity or absurdity of mis-appreciation and non appreciation of evidence on record, rather it has aptly appreciated the material available on record.
15. In view of the above, we find no merit in this appeal which is accordingly dismissed. In sequel, the impugned judgment is affirmed and maintained. Record of the learned trial Court be sent back forthwith.
(Rajiv Sharma)
Judge
(Sureshwar Thakur)
16th September, 2015 Judge.
(jai)
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