Himachal Pradesh High Court
State Of H.P. vs Diwana And Ors. on 28 June, 1994
Equivalent citations: 1995CRILJ3002
Author: Lokeshwar Singh Panta
Bench: Lokeshwar Singh Panta
JUDGMENT Lokeshwar Singh Panta, J.
1. This appeal is directed against the acquittal of accused Diwana (A-1), Suffal alias Subhash (A-2), Prithi (A-3), Adalti (A-4) and Sukhia (A-5), by the Session Judge Kangra Division at Dharamsala in Sessions Case No. 1 of 1985 dated 23rd May, 1985 for an offence punishable under section 302 read with section 34 and under Section 201 read with Section 34 of the Indian Penal code.
2. Briefly stated, the prosecution case is as follows :-
A-l is the father of A-2 and deceased Pratap Chand. The other co-accused are co-villagers of A- l. All the accused persons belong to village Sambra, Tehsil Bharmaur in District Chamba. The occurrence is alleged to have taken place a day prior to Sankrant of Kartik month i.e. on the night of October 16, 1984. Smt. Halya (PW- 1) wife of the deceased Pratap Chand was at her Parents house located in village Garola which is about 40 Kms. from village Sambra. The allegations of the prosecution are that A- l and A-2 had a quarrel with the deceassed while they were under the influence of liquor. The accused was a teetotaller. His brother A-2 is stated to have inflicted a 'Danda' blow on the person of the deceased which proved fatal. The dead body was found lying in the compound of the residential house of Shaktu (PW-2) and Ravan (both brothers). Dhundia (PW-12) deaf and dumb person is stated to have witnessed the occurrence from his residence. PW- Shaktu and his brother Ravan are stated to have called A- l by name apprising him about the dead body of his son Pratap Chand. According to the prosecution, A-l initilally did not respond to the calls of PW-Shaktu but lateron on his insistence A- l came out and told him tht his two other sons were alive and it did not matter if one son had died. It is alleged that subsequently the accused person removed the dead body by lifting the same on the back of A-2 from the compound of the house of PW-Shaktu.
3. Subhash (PW- 11) and one Dina Nath were sent for summoining Smt. Halaya (PW-1) from village Garola to her in-laws house. The factum of death of her husand was concealed by the said messengers and she was apprised of the deceased having suffered severe stomach pain. She accompanied by S/shri Bahadur Singh, Jogindar Singh, Duni Chand, Puran and Chaman Singh, reached her matrimonial home at about 7 PM. On her arrival, she found that her husband had not only expired but his dead biody had also been cremated during the day time. She made an inquiry from her father-in-law and Devar (husband's younger brother) i.e. A-1 and A-2 whereupon both of them sought apology from her and assured her that her share in the property besides cash amount Rs. 7000/- would be given to her. Smelling foul play, she along with her brother Puran, went to Hari Dass (PW-6), Pradhan of Gram Panchayat on the following morning and lodged a written report (Ex. PA). The Pradhan made an endorsement (Ex.PA/2) indicating the facts which had happened. Puran aforesaid then left for Police Station, Bharmaur for lodging report whereupon MHC Rajmal (PW- 14) without recording the contents of the report in the Daily Diary Register, simply recorded the departure report at 6-30 AM on 20-10-1984.
4. PW- Rajmal reached the spot, recorded the statement of PW- Haly a (Ex.PA/1), prepared the site plan (Ex.PF/1). Subsequently, on 21-10-1984 he collected ashes and bones of the deceased from cremation ground vide recovery memo (EX.PB) in the presence of PW- Hari Dass, Pradhan and others.
5. On 27-10-1984, SI/SHO Dev Raj (PW- 18) took over investigation. According to him, A- l produced coat (EX.P- 1), socks (EX.P-2), and P.T. shoes (EX.P-3) which were taken into possession through recovery memo (EX.PG). On 28-10-1984, he interrogated A-2 and recorded his discloser statement (EX.PD) to the effect that he had kept concealed a wrist watch (EX.P-4) and 'Danda' (EX.P-5) in a cowshed adjoining to his residence which he could get recovered. Consequently, on the basis of the said statement A-2 led the police party to the place of concealment and got recovered the articles aforesaid which were duly sealed in the presence of the witnesses. He also arrested the other accused persons. After completion of the investigation, challan was laid in the Court of Judicial Magistrate II Class, Chamba who commited the case to the Session Court for trial.
6. The accused persons were charged for the commission of the alleged offences to which they pleaded not guilty and claimed to be tried. In their statements under section 313 of the Code of Criminal Procedure each one of them raised defence of simple denial. A- l and A-2 further pleaded that the witnesses had deposed against them at the behest of PW- Hari Dass. Pradhan who was inimical with them.
7. The Session Judge, after considering the evidence of the witnesses and other circumstances, came to the conclusion that the prosecution could not bring home the charge against the accused-respondents beyond reasonable doubtt and accordingly acquitted them. The State has grivance against this decision and filed the present appeal.
8. At the hearing of the appeal, Ms. Shyama Dogra, learned Deputy Advocate General, for the State contended that the crime alleged to have been committed by A- 1 and A- 2, has been established by the witnesses beyond all reasonable doubt. It has been clearly established by the evidence of the witnesses that A-l and A-2 gave beatings to the deceased with 'Danda' on his stomach under the influence of liquor and his dead body was thrown in the compound of PW- Shaktu. According to her, the dead body of the deceased was cremated by A- 1 and A-2 without waiting for the arrival of his wife thereby they wanted to screen themselves from the commission of the crime. She has frankly stated that there is no evidence on record to connect the other accused with the commission of the offence charged for.
9. Mr. Anand Sharma learnea counsel for the accused has strongly contended that the accused person were no at all concerned with the commission of the offence allged against them. It has been contended by him (hat the circumtantial evidence adduced by the prosecution has not fully established the guilt of the accused beyond reasonable doubt; He urged that the trial court has rightly discredited the testimony of the prosecution witnesses and acquitted the accused persons after examination of the circumstances of the case quite comprehensively and meticulously and this court may not interfere lightly with the judgement of acquittal.
10. It is a cardinal principal of criminal jurispru idehce that circumtantial evidence must be fully established from which there should be inevitable conclusion of the guilt of the accused beyond reasonable doubt and facts so established should be consittent only with the hypothesis of the guilt of the accused, ruling out any hypothesis of inncocence of the accused, (See. Hanumant and Anr. v. State of Madhya Pradesh , Shivaji Sahaibrao Bobde v. State of Maharashtra , Kishore Chand v. State of H.P. and Harindra Narain Singh v. State of Bihar .
11. There is yet another basic rule of criminal jurisprudence that if two views are possible on the evidence adduced in a case of circumstantial evidence, one pointing to the guilt of the accussed and the other to his innocence, the court should adopt the latter view favourable to the accused. We have stated these principles with a view to ascertain as to whether the trial court has correctly applied these principles while acquitting the accused.
12. The prosecution has relied upon the following circumstances which were taken into consideration by the trial court :-
(i) The deceased was last seen in the house of A-1 and A-2 on the day of occurence.
(ii) The conduct of A- l not responding to the calls of PW- Shaktu and that of his brother Ravan and the reply given to them under the influence of liquor, coupled with non-disclosure of the reason of the death of the decesed.
(iii) Direct evidence of quarrel and beatings given by A- l and A- 2 to the deceased sought to be proved through PW-Dhundia and
(iv) Extra judicial confession of A- l and A- 2.
13. Before we proceed to decide the case on the basis of the circumstancial evidence, certain admitted facts are necessary to be detailed which have material impact of the conclusion arrived at by the trial court. Admittedly, deceased Pratap Chand was the son of A-l and real brother of A-2. He was employed as Supervisor in the H.P. PWD(Road), on daily wages in village Smbra. He was married to Smt. Halaya (PW-1) about 1 1/2 years prior to the date occurrence. Smt. Halya had given birth to a child and on the day of occurrence, she along with her minor child aged 6 or 7 months was residing in her parents house in village Garola at a distance of about 40 Kms. away from her in-laws house in village Sambra. The deceased died in between 7 to 9 PM on 16-10-1984. He was cremated in the afternoon on 17-10-1984. PW- Halya arrived at village Sambra at about 7 PM on 17-10-1984. About 100 or 150 persons accomapanied the funeral procession which started from the residence of A-1 to the cremation ground.
14. According to the custom of the illaqua, a dead body is cremated after performing certain last rites, i.e. the clothes worn by the deceased are taken out and new clothes are put on. The relations and co-villagers assemble at the house of the deceased and offer 'Tallu' (a piece of cloth put on the dead body) as a mark of respect at the time when the dead body is taken in a funeral procession to the cremation ground. On arrival of near relations at the house of the deceased, the women folk collect there, start beating their breasts and weeping as per custom. The near relations, members of the family and the co-villagers of the deceased neither cook nor take meals while the dead body is inside the house and till it is cremated. It is in the light of the abovesaid facts that the circumstantial evidence has to be appreciated.
15. The first, second and third circumtances are sought to be proved by the prosecution through the evidence of Shaktu (PW-2), Puran (PW-9) and Dhandia (PW-12). PW-Shaktu has deposed that on the relevent day, he heard noise of quarrel from the house of A-1 and A-2. Accoding to his version, such happening used to occur in the house, so he took it easy and did not brother much. Later, he found person lying in his compound and on verifying, he identified pratap Chand who had expired. He called A-1 at a loud voice but neither the latter nor his son A-2 responded to his call. Subsequently, A- l came out from his house and he apprised him (A-1) that his son Patap was lying dead in the compound to which A- l retorted that he had other two sons alive and it did not matter to him if one son had died. The evidence of this witness shows that he also offered 'Tallu' over the dead body of the deceased and also joined the funeral procession. He has not disclosed to any person including PW-Halya about the quarrel which took place in the house of A- 1 and A- 2 on the day of occurance. He does not specifically state that he saw A- 1 and A- 2 quarrelling with the deceased on the day of occurrence.
16. Puran (PW-9) state that he visited the house of PW-Shaktu and heard the noise of quarrel. On his inquiry, PW-Shaktu told him that the quarrel was amongst the family membes of A- 1. Later he found the dead body lying in the compound of PW-Shaktu. The presence of this witness has not been corroborated by PW-Shaktu. PW-Shaktu does not state about the presence of PW-9 either at his residence or at the time he verified the identity of the person lying in the compound. Thus, the possibility of this witness, who is a strranger to the accused, having been introduced by the police, cannot be ruled out. Even otherwise, the evidence of this witness is not reliable. He claims himself to be the God brother of PW Halya's Massi i.e. wiffe of PW-Shaktu. Neither he accompanied the funeral procession nor he went to the residence of A- l to offer condolences to the latter. According to him, he visited the house of Smt. Halya' s parents on the same day but did not disclose about the death of their son-in-law to them. This conduct of the witness also raises doubt regarding his presence in the house of PW-Shaktu. Subhash (PW- 10) one of the messengers has categorically admitted that the information regarding death of the deceased was conveyed to all the members of the house of Smt. Halya at village Garola except this lady (wife) who was told that her husband was suferring from severe stomach pain. Thus, before arrival of PW-Puran at the hosue of parents of Smt. Halya, the parent of the latter were already in the know of the sad demise of their son-in-law. In the natural course, they must have been observing his last rites and must have been in a pensive mood. The condct of PW-Puran of not offering condolences to them, but telling them that their son-in-law was in good helth, shows that his testimony does not inspire confidence and is not trustworthy.
17. The prosecution has relied upon the evidence of Dhundia (PW-12) who is admittedly a deaf and dumb person. He is stated to have witnessed the occurrence from his resindence which according to his version took place inside the house of A-l. He deposed that he was taking meals at the time of occurence when he hearcd alarm being raised by the deceased annd peeped from his room. He saw A-l and A-2 quarrellingh with the deceased. He stated that A-2 inflicted a ''Danda' blow on the arm as also on the stomach of the deceased due to which the, latter fell down and died. According to his version, A- l besides one Bidhi Chand (not an accused in the case) grappled with the deased and gave him thrashing. As per his vieirsion, it was dark night. The evidence of this witness is unbelievable and unreliable for the following reasonns:-
Firstly, as stated above, it was dark night and in such darkness it was not possible for him to have seen A- l and A- 2 grappling with the deceased and giving beatings to him with a 'Danda'. Secondly, it does not appeal to common sence that a deaf person could hear the alarm being raised by the deceased. This witness had not disclosed these facts to any person including his father Khazana prior to recording of his statement by the police. Thirdly, the genesis of the occurrence according to this witness was inside the room of the house of A- 1 and A- 2 whereas according to the prosecution version, the occurrence took place in the. open compound of PW-Shaktu. The distance beween the houses of this witness and A- 1, according to Dharam Singh Patwri (PW-13) is about eight meters and the entrance of doors and windows of both the houses are opposite to each other as per site plan (EX.PF). Therefore, the testimony of this witness does not inspire confidence and to our mind cither this witness was not present at his house or he did not witness the occurrence at all and he was lateron introduced as eye witness of the incident.
18. The fourth circumtance relied upon by the pnosecution is that of motive. According to Smt. Halya (PW-1), A-l father of the deceased used to ask for money from the deceased but the latter used to refuse to part with the same. She stated that she along with her husband was residing in a separate room. On the other hand, A- 1 in his statement under section 313 Cr. P.C. has stated that he along with his family members including the deceased used to live, reside and mess jointly though deceased and his wife (PW-1) had a spearate room for sleeping purpose only. This expalnation appears to be plausible. No previous instance of any quarrel in between the father and son on account of demand of money is proved on record. The bald statement of PW-1 cannot be made the basis to infer the motive on the part of the father and brother to murder the deceased,
19. The last circumtance about the extra judicial confession is sought to be proved through Smt. Halya (PW-1), Shaktu (PW-2), Sohan Lal (PW-3), Sauji Ram (PW-4), Diwana (PW-5) and Hari Dass Pradhan (PW-6). All these witnesses deposed that Pradhan Hari Dass (PW-6) was summoned on the following morning and on his inquiry into the case of death of the deceased made from A- l and A- 2, both the accused told them that there had been a quarrel between A-2 and the deceased, and a 'Danda' blow was given by A-2 to the deceased which proved fatal. They have further stated to have admitted that both of them were under the influence of liquor at the time of incident. However, there have been verbal differences in the testimony of these witnesses. Shaktu (PW-2) simply states that on inquiry made by Hari Dass (PW-6) from A- 1, he divulged that his second son A-2 inflicted a 'Danda' blow on the stomach of the deceased due to which he sustained injury and died. But Sohan Lal (PW-3) has stated that inquiry was first made by PW-6 from A-1 and thereafter from A-2 and both of them told that 'Danda' blow was given to the deceases by A-2. He further stated that thereupon Pradhan told them not to cremate the dead body till the arrival of the deceased's wife. The other witnesses have also made the similar statements. PW-2 has categorically admitted in his cross-examination that on the arrival of PW- Halya he consoled her but did not disclose the fact that A- 1 had apprised him about the fact that A-2 had casused injury to the deceased nor this fact was disclosed by him to other persons. Sohan Lal (PW-3) has admitted in his cross-examination that A-2 had disclosed to him that the deceased was suffering from severve stomach pain which resulted in his death. Sauji Ram (PW-4) has deposed that neither he nor Pradhan (PW-6) accompanied the funeral procession. PW- Hari Dass is the real brother of Sauji Ram (PW-4). PW-Sauji Ram has categorically stated in his cross-examination that they are not on visiting terms with the family of A- 1. Diwana (PW-5) has also categorically admitted in his cross-examination that PW- Hari Das is his collateral and he did not tell the police that inquiry was made by the Pradhan from A- l and A-2 about the death of the deceased.
20. Hari Dass (PW-6) visited the house of A- l and A-2 on 17-10-1984 at about 6 AM. He made inquiry regarding the death of the deceased. The father and the brother of the deceased told him that the deceased died because of 'Danda' blow inflicted by A-2. He further stated that A-1 and A-2 admitted themselves to be under the influence of liquor at the relevant time. According to him, he directed the family members not to cremate the dead body of the deceased till the arrival of the deceased's wife and that the matter was to be reported to the police by him. The factum of admission of both the accused persons to be under the influence of liquor is not stated by PWs. 2 to 5 nor they state that PW-6 told A- l that the matter was to be reported to the police by him and till then the dead body should not be cremated. Admittedly, Pradhan (PW-6) did not report the matter to the police. The testimony of the Pradhan is unreliable and untrustworthy. He did not record the infliction of 'Danda-' blow by A-2 under the influence of liquor and admission of that fact by A- l and A-2 while making an endorsement (Ex.PA/ 1) on the written complaint (Ex.PA) put up before him by PW- Halya. It is also important to note that this witness had filed a criminal case against A- l in his Panchayat wherein the latter was convicted and sentenced to pay fine. In other words, the Pradhan was inimical to A-1 . It has come in evidence that the family members of the deceased raised an alaram about the death of the deceased in the early morning to collect the co-villagers. All of them offered 'Tallu' as a mark of respect to the deceased and thereafter joined the funeral procession. The number of the covillagers who participated in the cremation of the deceased is stated to be 100 to 150. Had such confession been made to PW-6 by A- l and A-2, he would have taken steps not to allow these accused persons to take out the dead body. Rather, it was his boundend duty to report the matter to the police and also to depute co-villagers to protect the dead body till the arrival of the police. Further, the dead body was cremated at about 2 PM when all last rites according to custom had been observed as admitted by all the witnesses. Apart from this fact, messengers had already been sent at about 3-30 AM or 4 AM for calling PW- Halya from her parents house. Further, had such admission of guilt been made by either A-1 and A-2, the persons present at the spot would have visually seen the body of the deceased to know as to the receipt of injury or to verify the fact of such admission. On the other hand, prosecution witnessses have admitted that all rites according to custom were observed. That means that the old clothes worn by the deceased were put off and new clothes were put-on on the body of the deceased before the dead body was taken for cremation. Had any such injury been inflicted it would have come to the notice of the co-villagers at that time.Thus, it appears unnatural that A- l and A- 2 would have made confession to Pradhan who was not a man of their confidence.
21. It is well settled that the evidence of extra judicial confession in the very nature of the things is a weak piece of evidence. In order to accept such evidence, it must be plausible and must inspire confidence. To offer a piece of eliable evidence, it must pass the test of re-production of exact words, the reason or motive for confession and person selected in whom the confidence is reposed. Applying the aforesaid test to the testimony of PW-Hari Dass Pradhan, the position is more deplorable in view of the existing enmity between him and A- l and A-2. Hari Dass Pradhan (PW-6) had not stated anything about the extra judicial confession in his report (Ex.PA/2) nor the matter was reported by him to the police. The other witnesses are also related to the Pradhan and they have not participated in the funeral procession nor they had offered 'Tallu' on the dead body of the deceased. All this evidence would go to show that the evidence of extra judicial confession does not pass all the tests and such evidence deserves to be rejected.
22. The prosecution has not brought on record the evidence to establish that A-2 was in the habit of drinking liquor and was drunk on the day of incident. It has also not been proved by leading cogent and convincing evidence that if the genesis of the occurrence had taken place inside the house, how the dead body of the deceased came into the compound of PW- Shaktu? The relations and co-villagers who participated in the cremation of the dead body of the deceased had no suspicion about the unnatural death of the deceased. The Pradhan did not resist the relations and other co-villagers from cremating the dead body if it had come to his knowledge that the deceased died due to homicidal death. Had there been any ring of truth in the origin, genesis and manner in which the occurrence is stated to have taken place as alleged by the prosecution, A- l and A-2 and other family members would have positively disposed of the dead body during the night time instead of calling the co-villagers. On the other hand, it has come in evidence of Puran (PW-9) that the deceased was in the house of PW- Shaktu between 8 or 9 PM on the day of occurrence. The deceased was enquiring about the damaged apple trees from PW- Shaktu. If testimony of PW -Puran is believed, then possibility of the deceased, coming out of the house of PW-Shaktu and falling down in the compound and breathing his last cannot be excluded. Rather, the testimony of this witness shows that at the time of the alleged occurrence, the deceased was at the house of PW- Shaktu and not at the house of his father A- 1. The dead body was admittedly found in the compound of PW- Shaktu from where the same was removed by A- 1 and A-2.
23. Regarding the participation of A-3, A-4 and A-5 in the commission of murder or disposing of the evidence of murder, there is no iota of evidence on record to prove that these accused persons actively participated in the commission of the offence. They had joined the cremation of the deceased just like other co-villagers. They have been un-necessarily harassed and humiliated in the case on the basis of no evidence at all. According to custom of the illaqua, the co-villagers and family members did not cook or take their meals till the dead body is cremated. It has also come in evidence of PW- Shaktu that even near relations like brother or wife are not awaited if their possibility of arrival is delayed by some cause. As per custom, the dead body is supposed to be cremated before sun-set. The fact that A- l and A-2 or the other family members did not wait for the arrival of PW- Halya wife of the deceased appears to have created suspicion in her mind and that of her relatives. As already stated above, she was at her parents house which is at a distance of about 40 Kms., and her arrival before sun-set was not known to the family members. The cumulative effect of all the circumstances is that the prosecution has miserably failed to prove that the accused persons, in furtherance of their common intention, caused the disappearance of the evidence of murder by cremating the deceased before arrival of his wife Smt. Halya. The trial Court has examined all the circumstances of the case quite comprehensively and meticulously before ordering the acquittal of the accused.
24. We do not see any justification to interfere with the findings recorded by the trial court and accordingly the same is confirmed.
25. The result of the aforesaid discussion, therefore, is that there is no merit in this appeal and the same is accordingly dismissed.