Himachal Pradesh High Court
Om Parkash Alias Pappu vs . on 25 June, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma, Sureshwar Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
D.S.R. No. 4001 of 2013 a/w
Cr. Appeal No. 186 of 2014
.
Reserved on: 24.06.2015
Date of decision: 25.06. 2015
D.S.R. No. 4001 of 2013
State of Himachal Pradesh
Vs.
Om Parkash @ Pappu
.....Accused.
Cr. Appeal No. 186 of 2014
Om Parkash alias Pappu
r ....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
D.S.R. No. 4001 of 2013
For the appellant-State: Mr. M.A. Khan, Additional Advocate
General.
For the respondent/convict: Mr. V.S. Rathore, Advocate.
Cr. Appeal No. 186 of 2014
For the appellant : Mr. V.S. Rathore, Advocate.
For the respondent: Mr. M.A. Khan, Additional Advocate
General.
Whether the reporters of the local papers may be allowed to see the Judgment? Yes
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2
Rajiv Sharma, J.:
Since both the Death Sentence Reference No. 4001 of 2013 .
and Criminal Appeal No. 186 of 2014 have arisen out of the common judgment and order, dated 10.09.2013/18.09.2013, the same were taken up together for hearing and are being disposed of by this common judgment.
2. Criminal Appeal No. 186 of 2014 is instituted against the judgment and order, dated 10.09.2013/18.09.2013, rendered by the learned Sessions Judge (Forests), Shimla, H.P., whereby the appellant- accused, who was charged with and tried for an offence punishable under Section 302 of the Indian Penal Code, was convicted and awarded death sentence and a fine of `5000/-. He was ordered to be hanged by neck till he was dead. The sentence was deferred until and unless confirmed by this Court. Learned Sessions Judge (Forests) submitted a Reference Petition to this Court for confirmation of death sentence bearing Death Sentence Reference No. 4001 of 2013.
3. Case of the prosecution, in a nut-shell, is that PW-7, Sh. Daulat Ram Chauhan was owner in possession of an orchard at village Chalnehar. He has constructed two sheds in his orchard, one of which was occupied by the accused and the other was occupied by his father- in-law PW-16 Man Bahadur. The accused was putting up in his temporary shed alongwith his wife, mother and sister-in-law. PW-16 Man Bahadur was employed by PW-7 Daulat Ram Chauhan to look ::: Downloaded on - 15/04/2017 18:26:59 :::HCHP 3 after his orchard and mother and father of the accused used to take care of the cattle of PW-7 and also to milk the cow. On 17.01.2012, PW- 16 Man Bahadur was asked by PW-7 to call Parvati, mother of the .
accused to milk the cattle. However, the temporary shed occupied by the accused was bolted from inside and his daughter refused to open the same. On the second day, again the same reply was received from inside the temporary shed. Thereafter, PW-7 directed PW-16 to inform the police. The police was informed. PW-17 Sub-Inspector Rattan Chand alongwith police party reached on the spot. Thereafter, the door was opened by the police in the presence of villagers and witnesses. The Investigating Officer recorded the statement Ex. PW-12/A of Mohan Chauhan, Pradhan of village under Section 154 Cr. P.C., on the basis of which FIR Ex. PW1/A was registered. The photographs were clicked on the spot and the spot map Ex. PW-17/A was prepared by the Investigating Officer. The inquest papers were prepared and the investigating officer took into possession griddle (Tawa) Ex. P-3, frame of window Ex. P-5, brief case Ex. P-6, blood stained soil Ex. P-8 from the spot. The accused was interrogated and arrested. Statements of the witnesses were recorded. Post mortem of the dead bodies of Man Bahadur and Parvati, father and mother of the accused respectively were got conducted. Post mortem reports Ex. PW-11/B and Ex. PW- 11/C were obtained. On 20.01.2012, accused made a disclosure statement Ex. PW8/A in police custody and led the police party to the spot for recovery of Drat Ex. P-1 and Scissors Ex. P-4. These were taken ::: Downloaded on - 15/04/2017 18:26:59 :::HCHP 4 into possession vide memo Ex. PW-15/C. The challan was put up after completing all the codal formalities in the Court.
4. The prosecution has examined number of witnesses to .
support its case. The accused was also examined under Section 313 of the Cr. P.C. Accused denied the case of the prosecution. The accused was convicted and sentenced, as noticed hereinabove. Hence, this appeal.
5. Mr. V.S. Rathore, learned counsel for the appellant has vehemently argued that the prosecution has failed to prove the case against the appellant/accused.
6. Mr. M.A. Khan, learned Additional Advocate General has supported the judgment and order, dated 10.09.2013/18.09.2013. He vehemently argued that the prosecution has proved the case against the accused beyond reasonable doubt. He then argued that the death penalty awarded to the accused be confirmed.
7. We have heard the learned counsel for the parties and gone through the judgment and records, carefully.
8. PW-1, Sita Ram deposed that he recorded the FIR Ex. PW- 1/A. On 18.01.2012, Suresh deposited with him three packets alongwith specimen impression of seal. He made entries in the malkhana register. On 20.1.2012, two packets sealed with seal 'A' alongwith impression of seal were also deposited. The entries were made in the malkhana register. On 21.01.2012, Suresh Kumar deposited with him eight packets sealed with seal 'AK' alongwith ::: Downloaded on - 15/04/2017 18:26:59 :::HCHP 5 specimen impression of seal. He made entries in the malkhana register vide Ex. PW-1/C. These packets alongwith specimen seal impression were sent to CFL on 23.01.2012. PW-2, Suresh Kumar deposed that on .
23.01.2012, he deposited three packets sealed with 'N', two packets with 'NK' and eight packets with 'KKI' alongwith sample seal at FSL vide Ex. PW1/D.
9. PW-3, Constable Pradeep Kumar did videography and photography of the dead body at the place of occurrence. He took photographs Ex. A-1 to Ex. A-6. From the videography, CD was prepared vide Ex. PW-3/A.
10. PW-4, Constable Dimple deposed that on 18.01.2012 at 1:10 p.m., Pardhan, Gram Panchayat, Bagdomer telephonically informed that a Nepali was residing in the orchard of Daulat Ram and someone had killed him. He entered the information in the computer vide Ex. PW4/A. PW-5, Kuldeep Singh Thakur deposed that on 10.04.2011 at the instance of the police, he prepared site plan of the place of incident vide Ex. PW5/A. PW-6 is a formal witness.
11. PW-7, Daulat Ram Chauhan deposed that Man Bahadur, his wife Parwati, their son Om Parkash and his wife and children used to work in his land. Sometimes, sister-in-law of the accused also used to come there. All of them were residing in the Dhara (temporary shed) on his land. Parwati used to come to his house for milking his cow. On 16.01.2012, Parwati had come to his house for milking the cow in the morning, but during evening time, she had not come. On the next day, ::: Downloaded on - 15/04/2017 18:26:59 :::HCHP 6 one another Man Bahadur, father of Dropti had come to him and he asked him to call Parwati. When he came back, the he told him that the door of the Dhara of Parwati was closed from inside and some voice of .
girl was coming. He asked Man Bahadur to report the matter to the police in case Parwati did not open the door. On 18.01.2012, police came there and he had also been called by the police to the spot. The door was opened by the police in his presence and after opening the door, Man Bahadur and Parwati were found inside dead in naked condition. There were injuries on the left side of Man Bahadur in his head and arm and his private part was found to be mutilated. When Deviyani and Dropti were asked about it, they had told them that Man Bahadur and Parwati had been killed by accused Om Prakash with drat and scissor used for pruning apples. In his cross-examination, he could not say that Devyani was in the house of accused from 16.01.2012 to 18.01.2012. However, he volunteered that when the door was opened on 18.01.2012, she was found inside Dhara of the accused. He also admitted that in the morning of 17.01.2012, father of Dropti, namely Man Bahadur did not report back to him. He had come only in the morning of 18.01.2012. Man Bahadur had not told him as to whose voice he had heard from inside the house. He had instructed Man Bahadur to report the matter to the police. He had never seen the accused and his family members quarrelling with each other in the Dhara. He had not gone inside the room, but he had seen the scene from the door.
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12. PW-8, Vikas Nanda deposed that the accused while in police custody had given the statement in his presence to the police about his having hidden the drat with handle and the scissors for .
pruning of the apples in the room of his house and that he could get the same recovered. His statement is Ex. PW8/A.
13. PW-9, Jai Pal Chauhan has proved the copy of Jamabandi Ex. PW-9/C. PW-10, Arvind Sharma deposed that on 25.01.2012, the Police Constable Pradeep Kumar had given him his camera and photographs of digital camera for preparing CD and developing the photographs, on which he had prepared the CD Ex. PW3/A.
14. PW-11, Dr. Manika Sharma has conducted the post mortem on the dead body of Man Bahadur and Smt. Parwati Devi. According to her, the cause of death of Man Bahadur was multiple ante mortem injuries leading to hemorrhage which lead to cardio respiratory arrest leading to death. The probable duration between injuries and death was less then six hours and between death and post mortem was more than 24 hours. The cause of death of Smt. Parwati Devi was multiple ante mortem injuries leading to hemorrhage which lead to cardio respiratory arrest leading to death. The probable duration between injury and death was less then six hours and between death and post mortem was more than 12 to 24 hours. According to her, injury Nos. 1 and 2 caused on the person of deceased Man Bahadur could be caused with drat Ex. P1 and injury No. 4 caused on the person of deceased Man Bahadur could be caused by iron rod Ex. P2. The ::: Downloaded on - 15/04/2017 18:26:59 :::HCHP 8 remaining injuries on the person of Man Bahadur could be caused with Tawa Ex. P3. Injury No. 1 on the person of Parwati Devi could be caused with scissor Ex. P4 and the other injuries No. 2 to 5 on her .
person could be caused by drat Ex.P1, rod Ex. P2, Tawa Ex. P3 and scissor Ex. P4.
15. PW-12, Mohan Chauhan, deposed that Sh. Daulat Ram was resident of his Panchayat. He had employed the parents of the accused in his house for agricultural land and orchard work. The accused, his wife, his two children and sister-in-law were also residing with the parents of the accused in the same Dhara. On 18.01.2012, he came to know that the Dhara of parents of the accused was closed from inside and the parents-in-laws of the accused told about it to him, on which, he had telephonically informed the police. When police reached the spot, then he, Ward Member Naresh Kumar and Daulat Ram had also joined the police. Police got the Dhara opened in their presence. From one room, accused, his wife, his children and sister-in-law were taken out and when the kitchen was opened, in that room the parents of the accused were found dead in naked condition. There were injuries on their body parts. His statement was recorded under Section 154 Cr. P.C. vide Ex. PW12/A. In his presence, the police had interrogated Devyani and Dropti, the wife and sister-in-law of the accused, who told them that on the night of 16.01.2012, the accused had asked them and his parents to line up inside the room in naked condition and then he had picked up their clothes and had burn them in Chulla (hearth). ::: Downloaded on - 15/04/2017 18:26:59 :::HCHP 9 They also told the police in their presence that they were threatened by the accused when they had tried to intervene. The accused had taken out the electric bulb and then in the darkness, he started beating them.
.
He had given beatings to the deceased with Tawa and drat blows. He had also used the scissor for beating his mother. They had also told the police in their presence that the accused had kept them inside for two days and he had threatened them to be killed in case of their making noise. The police recovered drat Ex. P1 and scissor Ex. P4, Tawa Ex. P3 and frame of the window Ex. P5.
16. PW-13, Deviyani is the most material witness. According to her, accused was her brother-in-law. She was residing with his family. The accused, his parents and other family members were residing in the Dhara (temporary shed) of Daulat Ram, in whose orchard they had been working. Her brother-in-law, the accused was away to Rohru in connection with his work and he had come back to Chalnehar on 13.01.2012. On the night of 16.01.2012, the accused did not allow anyone to go out of the house/Dhara. At about 11/12 mid-night, the accused asked them and his parents to undress. After undressing them all in the kitchen, the accused had burnt their clothes in the Chulla (hearth). The accused asked her and her sister Dropti Devi to stand on the side and then he started beating his father with iron Tawa. The accused directed his wife to take out the electric bulb. Thereafter, in the darkness, the accused killed his father with drat and his mother with scissors. Due to fear, they kept on standing there because the ::: Downloaded on - 15/04/2017 18:26:59 :::HCHP 10 accused had threatened them to keep quite. She identified drat Ex. P1, Tawa Ex. P3 and scissors Ex. P4. During whole night, they remained in the kitchen and in the morning, they were allowed to go to the other .
room. On 17.01.2012 also, they remained in that room. On 17.01.2012, during day time, her father had come there. He called them from outside, but the accused asked him to go from inside. Her father again came on 18.01.2012 during morning hours and called from outside, on which the accused again told him to go away. During day time, her father came again with owner of the Dhara, police and other villagers including Pradhan and asked the accused to open the door, but he did not open the door. Thereafter, the police officials pushed the door and the door was opened. The police officials had seen the dead bodies inside the room. In her cross-examination, she has admitted that behaviour of the accused with them was nice.
17. PW-14, Sub-Inspector Gauri Dutt Sharma is formal witness. PW-15, Dalip Chauhan deposed that he was called to the Police Station on 20.01.2012. In his presence and in the presence of Vikas Nanda, the accused made a disclosure statement vide Ex. PW8/A that he could recover a drat and scissor, which he had concealed in the side of a room below a sack. The accused led the police party to a room situated in the apple orchard of one Daulat Ram Chauhan. He took out a blood stained drat from the corner of the room concealed under a sack and produced before the police. Thereafter, he took out a blood stained scissors.
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18. PW-16 Man Bahadur deposed that he had two daughters, namely Dropti and Devyani and three sons. He married his daughter Dropti with the accused. Accused had two children from his daughter.
.
Accused was also residing in the orchard of Daulat Ram Chauhan at Chalnehar. Accused was residing there with his parents and family members. His younger daughter Devyani also used to reside with them. During winter season, when there was snow fall, he had gone to the house of Daulat Ram to take Lassi. Daulat Ram directed him to call Parwati, mother of the accused to milk the cow. He went to the temporary shed of accused and called from outside. His daughter Dropti told him to leave since door was closed. Thereafter, he left for his Dhara (temporary shed) at Bagga. On the next day, he again went to the house of Daulat Ram Chauhan at 10:00 a.m. and told him that when he had gone to call Parawati, the door was closed from inside. Thereafter, Daulat Ram directed him to report the matter to the police. When he was about to leave to call the police, President of Gram Panchayat, Mohan Chauhan came to the spot alongwith police and other residents of the village. The police and Pradhan directed to open the door. Thereafter, he noticed that dead bodies of mother and father of accused were lying in pool of blood in naked condition in the temporary shed of accused. He inquired about the incident from his daughters Dropti and Devyani. They disclosed that accused gave beatings to Parwati and Man Bahadur with griddle (Tawa). They also disclosed that accused made all the persons naked and thereafter their ::: Downloaded on - 15/04/2017 18:26:59 :::HCHP 12 cloths were set ablaze and electric bulbs were also put into fire. Thereafter, accused gave beatings to Parwati and Man Bahadur with griddle. In his cross-examination, he deposed that he had not noticed .
anything outside the door of the temporary shed of accused. On 17.01.2012, he had not made any effort to open the door of Dhara. He had also not inquired about the reasons from his daughter for not opening the door.
19. PW-17, Sub-Inspector, Rattan Chand, investigated the matter. On 18.01.2012, Pradhan, Gram Panchayat Chelnehar Mohan Chauhan telephonically informed the police that somebody had killed Man Bahadur and Parwati Devi, regarding which rapat Ex. PW-4/A was entered in the computer. On reaching the spot, he recorded the statement of Mohan Chauhan, under Section 154 Cr. P.C. vide Ex. PW12/A, on the basis of which, FIR Ex. PW-1/A was registered against the accused. He clicked the photographs Ex. A-1 to A-6. Inquest papers were prepared. He took into possession the griddle (Tava) Ex. P3, frame of window Ex. P5, brief case Ex. P6 vide memo Ex. PW12/B. He also took into possession the blood stained soil Ex. P8 vide memo Ex. PW12/C. These were duly sealed. The post mortem on the bodies of the deceased was got conducted. Drat Ex. P1 and scissor Ex. P4 were also taken into possession. He also got prepared the site plan Ex. PW5/A from the Junior Engineer. In his cross-examination, he has admitted that he had not seized the clothes of accused from the spot, however, volunteered that clothes were not blood stained. ::: Downloaded on - 15/04/2017 18:26:59 :::HCHP 13
20. Case of the prosecution, precisely is that the accused alongwith his family members was residing in a Dhara of PW-7, Sh. Daulat Ram Chauhan. On 17.01.2012, PW-7, Sh. Daulat Ram .
Chauhan asked PW-16, Man Bahadur to call Parwati. He went to the Dhara of accused. It was bolted from inside. PW-7, Daulat Ram again asked him to call Parwati on 18.1.2012, but he found the door of the Dhara closed. Thereafter, PW-7, Sh. Daulat Ram Chauhan asked him to report the matter to the police. Police reached the spot and recovered the bodies. PW-16, Sh. Man Bahadur has testified that his younger daughter Devyani also used to reside with the family of the accused. On 17.01.2012, during winter season when there was snow fall, he had gone to the house of Daulat Ram to take Lassi. Daulat Ram directed him to call Parwati, mother of the accused to milk the cow. He went to the temporary shed of accused and called from outside. His daughter Dropti told him to leave since door was closed. Thereafter, he left for his temporary shed at Bagga. On the next day, he again went to the house of Daulat Ram Chauhan at 10:00 a.m. and told him that when he had gone to call Parwati, the door was closed from inside. He again went to the Dhara (temporary shed) on 18.01.2012. He found it locked. Thereafter, Daulat Ram directed him to report the matter to the police. PW-13, Smt. Devyani deposed that the accused asked her and her sister Dropti Devi to stand on the side and then he started beating his father with iron Tawa. Accused directed his wife to take out the electric bulb. Thereafter, in the darkness, the accused killed his father with ::: Downloaded on - 15/04/2017 18:26:59 :::HCHP 14 drat and his mother with the scissor. Due to fear, they kept on standing there because the accused had threatened them not to speak anything. During whole night, they remained in the kitchen and in the morning, .
they were allowed to go to the other room. On 17.01.2012 also, they remained in that room. On 17.01.2012 during day time, her father had come there. He called them from outside, but the accused asked him to go from inside. Her father again came on 18.01.2012 during morning hours and he called from outside, on which the accused again told him to go away. PW-16, Sh. Man Bahadur in his examination-in chief deposed that when he went to the temporary shed of accused and called from outside, his daughter Dropti told him to leave since door was closed. But, PW-13, Smt. Devyani deposed that it was the accused who told from inside the room to Man Bahadur to leave. PW-7, Sh. Daulat Ram, in his cross-examination, has admitted that in the morning of 17.01.2012, the father of Dropti, namely, Man Bahadur had not contacted him and had come only on the morning of 18.01.2012. Man Bahadur had not told him as to whose voice he had heard from inside the house. The conduct of PW-16, Sh. Man Bahadur is unusual. He had gone to the house of accused in the morning of f 17.01.2012. He was told by his daughter to leave the house. He had gone to the house of accused at the instance of PW-7, Sh. Daulat Ram Chauhan. He did not inform Sh. Daulat Ram Chauhan on 17.01.2012 that the door was found locked from inside. PW-7, Sh. Daulat Ram again told him on 18.01.2012 to call Parwati. He went to the Dhara, but the door was ::: Downloaded on - 15/04/2017 18:26:59 :::HCHP 15 found locked. It should have aroused his suspicion why the door was not opened in the morning of 17.01.2012 and in the morning of 18.01.2012. It is also intriguing to note that why the accused with his .
children, his wife and sister-in-law PW-13, Smt. Devyani would have remained in the room after the commission of the crime for about 48 hours. The endeavour of the accused would have been to run away from the scene of crime instead of locking himself inside the room for two days. The prosecution has not examined the wife of accused, who was also present in the house when the incident took place. In normal circumstances, all the occupants of the room would have come out of the room and raised hue and cry.
21. PW-16, Sh. Man Bahadur has admitted in his cross- examination that on 17.01.2012, he had not made any effort to open the door of Dhara. He had also not inquired about the reasons from his daughter for not opening the door. On 18.01.2012, he had also not made any effort to open the door. He had not made any complaint to Pradhan and police. It was an unusual behaviour on behalf of PW-16, Sh. Man Bahadur of not making efforts to open the door on the morning of 17.01.0212 and also on the morning of 18.01.2012 and not ascertaining the reason from his daughter why the door was not being opened. This casts serious doubt upon the prosecution version about the commission of the crime. The cause of death of deceased Man Bahadur was multiple ante mortem injuries leading to hemorrhage leading to cardio respiratory arrest leading to death. The probable ::: Downloaded on - 15/04/2017 18:26:59 :::HCHP 16 duration between injuries and death was less then six hours and between death and post mortem was more than 24 hours and the cause of death of deceased Parwati Devi was multiple ante mortem injuries .
leading to hemorrhage leading to cardio respiratory arrest, leading to death. The probable duration between injury and death was less than six hours and between death and post mortem was more than 12 to 24 hours. PW-17, Sub Inspector Rattan Chand has not even recovered the cloths of the accused. The blood stains were bound to be on the cloths of the accused the manner in which according to the prosecution the murder has taken place.
22. Mr. M.A. Khan, learned Additional Advocate General has argued that on the basis of the disclosure statement made by the accused, the police has recovered the Tawa, Scissor and Drat. The recoveries must connect the accused with the commission of offence. According to Mr. M.A. Khan, learned Additional Advocate General, PW- 13, Smt. Devyani was an eye witness of the incident. However, the statements of PW-13, Smt. Devyani and PW-16, Sh. Man Bahadur do not inspire confidence. It is also not clear, who has informed the police. PW-12, Sh. Mohan Chauhan in his cross-examination testified that the father-in-law of the accused Sh. Man Bahadur had come to him at about 1:00 p.m. to give the information. However, PW-16, Sh. Man Bahadur deposed that Daulat Ram had directed him to report the matter to the police and when he was about to leave to call the police, President of Gram Panchayat, Mohan Chauhan came to the spot ::: Downloaded on - 15/04/2017 18:26:59 :::HCHP 17 alongwith police and other residents of village. This is major contradiction in the statement of PW-12, Sh. Mohan Chauhan and PW- 16, Sh. Man Bahadur. Now, as per the version of PW-12, Sh. Mohan .
Chauhan, PW-16 Sh. Man Bahadur told him to give information to the police, but PW-16, as noticed above, has stated that when he was about to leave to contact the police, PW-12 alongwith the police had already reached the spot.
23. Mr. V.S. Rathore, learned counsel for the appellant has vehemently argued that no motive has been attributed to the accused.
However, Mr. M.A.
r Khan, learned Additional Advocate General
submitted that the accused was annoyed with his father for keeping a bad eye on his sister-in-law. If that was so, he would have killed only his father and not his mother. It has come in the statement of PW-13, Smt. Devyani that the accused was nice to them. The sister-in-law, Smt. Devyani, though according to the prosecution version was living with the accused, she was supposed to live with her father PW-16, Sh. Man Bahadur and not in the house of the accused. Thus, the prosecution has failed to prove the case against the accused beyond reasonable doubt.
24. Accordingly, in view of the observations and discussion made hereinabove, the Criminal Appeal No. 186 of 2014 is allowed. The judgment and order, dated 10.09.2013/18.09.2013, are set aside. The accused is acquitted of the charge framed against him. He be released forthwith, if not required in any other case. The Registry is directed to ::: Downloaded on - 15/04/2017 18:26:59 :::HCHP 18 prepare the release warrant and send the same to the concerned Superintendent of Jail. Since the appeal of the appellant/accused has been allowed, the Death Sentence Reference No. 4001 of 2013 has .
become infructuous. Order accordingly.
(Rajiv Sharma) Judge (Sureshwar Thakur) Judge June 25, 2015 (bhupender) ::: Downloaded on - 15/04/2017 18:26:59 :::HCHP