Himachal Pradesh High Court
Khazana Ram Alias Khazanu vs State Of Himachal Pradesh on 13 March, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.A. No. 287/2010.
Reserved on: 11.3.2015 Decided on: 13.3.2015 ___________________________________________________ Khazana Ram alias Khazanu. ...appellant.
Versus State of Himachal Pradesh ...Respondent.
______________________________________________________________ Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge.
Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? 1 Yes For the appellant: Mr. T. S. Chauhan, Advocate.
For the Respondent: Mr. M.A. Khan, Addl. A.G. _________________________________________________________ Per Justice Rajiv Sharma, Judge.
This appeal is instituted against the judgment dated 20.7.2010 rendered by the Sessions Judge, Bilaspur in Sessions Trial No. 17 of 2009, whereby the appellant-accused (hereinafter referred to as the "accused" for convenience sake), who was charged with and tried for offence punishable under section 302 of the 1 Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 2
Indian Penal Code, has been convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine .
of Rs. 20,000/- and in default of payment of fine to further undergo imprisonment for a period of one year.
2. Case of the prosecution, in a nutshell, is that deceased Vidya Devi was the wife of accused. He used to frequently quarrel with the deceased. On 31.3.2009, PW-10 Lekh Ram was called by the accused to his house in order to take dinner, at which Lekh Ram alongwith his son and son of his brother-in-law went to the house of the accused. The accused asked the deceased to prepare meal after consuming liquor. The deceased who had also consumed liquor refused to prepare the meal. The accused started quarreling with the deceased and Lekh Ram tried to pacify the accused. Accused gave beatings to the deceased due to which blood started oozing out from the nose of the deceased. Thereafter, Lekh Ram alongwith others left for his house. PW-7 Kishori Lal on 31.3.2009 at about 9.15 pm also heard the accused quarreling with the deceased. Both of them were calling bad names to each other and at about 3.30 am on ::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 3 1.4.2009, Kishori Lal heard the voice of accused that the deceased had been killed by someone. He did not care as .
he thought that the accused was drunk. Kishori Lal went to the house of the accused on 1.4.2009 at about 7.00 AM and saw the dead body of the deceased lying in the room. He also saw blood lying on the floor of the room;
bed and some stains of the blood were also on the wall.
He gave telephonic information to the police. On receipt of information, ASI Mahinder Singh went to the spot. He recorded the statement of Kishori Lal under section 154 of the Criminal Procedure Code Ext. PW-7/A. FIR Ext.
PW-18/A was recorded on the basis of Ext. PW-7/A. Spot map Ext. PW-19/A was prepared. The photographs were also taken on the spot. The dead body was sent for post mortem. PW-1 Dr. N.K. Sankhyan conducted post mortem examination of the body of deceased. He issued post mortem report Ext. PW-1/A. The viscera of the deceased alongwith her blood sample, blood stained urine, vaginal swab, vaginal smear and clothes of the deceased were preserved by the Medical Officer and handed over to the Police for chemical examination.
::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 4Blood lying on the spot was collected. The accused was also got medically examined from PW-2 Dr. Sanjiv .
Krishan. Accused made disclosure statement Ext. PW-
3/A, on the basis of which hammer, Ext. P-1 was recovered. Police investigated the case and the challan was put up in the court after completing all the codal formalities.
3. Prosecution examined as many as 19 witnesses in all to prove its case against the accused.
Statement of accused under Section 313 Cr.P.C. was recorded. He has denied the case of the prosecution in entirety. Learned trial Court convicted and sentenced the accused, as noticed hereinabove.
4. Mr. T.S. Chauhan, learned counsel for the accused has vehemently argued that the prosecution has failed to prove its case against the accused.
5. Mr. M.A. Khan, learned Additional Advocate General, has supported the judgment dated 20.7.2010 passed by the trial Court.
6. We have heard the learned counsel for the parties and have gone through the record meticulously.
::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 57. PW-1 Dr. N.K. Sankhyan has conducted the post mortem of the deceased. He issued post mortem .
report, Ext. PW-1/A. According to him, deceased died as a result of choking after hypovolumic shock due to haemorrhage from the ante mortem injuries as mentioned in the report. The probable time that elapsed between injuries and death was within a few minutes to a few hours and the probable time that elapsed between death and post mortem was 6 hours to 24 hours.
According to him, no alcohol or poison was detected in stomach, small intestines, liver, spleen, blood and urine of the deceased, as per FSL reports Ext. PW-1/D and Ext. PW-1/E. In his cross-examination he has admitted that the handle of the hammer appeared to be newly prepared with rough surface. He has also admitted that if the handle of the hammer is put in vagina, blood stains could be present, which were visibly not present on any portion. He has also admitted that there may be more than one weapon of offence and there may be more than one person involved in causing injuries to the deceased. He has also deposed that the injuries on the ::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 6 private parts of the deceased could be caused when the private part was naked.
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8. PW-2 Dr. Sanjiv Krishan has medically examined the accused. He has issued Ext. PW-2/A the MLC. According to him, the person could have consumed alcohol as he was slightly emitting the smell of alcohol.
9. PW-3 Dila Ram has deposed that he went to the spot in the house of the accused Khazana Ram at the instance of police. He saw the dead body of the deceased Vidya Devi. Accused told in his presence that he has killed his wife. At that time, the witness Prem Lal, BDC member was also present. The police recorded the statement of accused in his presence. The accused disclosed in his presence that he used hammer/ Hathauri for killing the deceased. Statement Ext. PW-
3/A was recorded by the police. The hammer was recovered by the police as it had been hanged in the room by putting the same in the bag. According to him, the accused did not get hammer recovered. He was declared hostile. He was cross-examined by the learned Public Prosecutor. In his cross-examination by the ::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 7 learned Counsel for the accused, he has deposed that he had come to Bilaspur alongwith the dead body, when the .
hammer was recovered by the Police at about 2.00 pm. He was told by witness Prem Lal, BDC Member that the police recovered the hammer. Hammer Ext. P-1 was shown to him at the Police Post, Namhol, including the pants and shirt Ext. P6 and P7. The accused disclosed to the police in his presence at the spot of crime that he has killed his wife (the demeanour of the witness was recorded as he was changing his version frequently.)
10. PW-4 Jia Lal has taken photographs of the dead body.
11. PW-5 Vipan Kumar and PW-6 Rattan Singh are formal witnesses.
12. Statement of PW-7 Kishori Lal is material.
According to him, on 31.3.2009, at about 9.15 pm, he was coming to his house and passed through the house of accused. He heard that accused and the deceased were quarreling with each other inside their house. They were calling bad names to each other. They used to quarrel frequently for no reason. Thereafter, he ::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 8 proceeded to his house. He took his dinner and went to sleep. On the intervening night of 31.3.2009 and .
1.4.2009 at about 3-3.30 am, he heard the voice of accused who was stating that his wife has been killed by someone. He thought that the accused was drunk. In the morning of 1.4.2009, at about 7.00 am, when he went to the house of the accused, he saw the dead body of the deceased. Accused was not found present inside his house. He also saw blood lying on the floor of the room and bed and some spots of blood were found on the walls of the room. The broken pieces of bangles were also found scattered. Thereafter, he informed the police post Namhol telephonically. The accused also came to his house after some time, who told that he also informed the police regarding the death of his wife. According to his imagination, the deceased was killed by the accused.
Police recorded his statement Ext. PW-7/A under section 154 of the Criminal Procedure Code. He has further deposed in his examination-in-chief that the accused earlier had two wives, who have already left his company, because no child was born. According to him ::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 9 since no issue was born from the deceased, perhaps it could be the reason for their frequent altercations. In his .
cross-examination, he has admitted that total eight family members resided with him. His father and mother were also in the same house on that night. The house of his uncle Lekh Raj was adjacent to the house of the accused. The voice of accused was heard by the other members of the family at about 3-3.15 am, who was claiming that his wife has been killed by someone. He was shouting loudly. However, even then neither he nor any member of his family visited the house of the accused at that time. He visited the house of the accused at 7.15 am. He has further deposed that the door of the house of accused was bolted from outside. The accused returned to his house after 10-15 minutes with the police. He visited the house of the accused on that morning because he had received telephone from the driver who was serving in the police department that accused has come to police post telling that his wife has been killed by someone and thereafter he was asked to confirm this fact whether it was true or false. Thereafter, ::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 10 after visiting house of accused and verifying death of deceased he informed the police at Namhol about the .
death of the deceased. He told the police that accused was narrating the true facts.
13. PW-8 Prem Lal has deposed that he went to village Jamla and found dead body of Vidya Devi in the house of accused. The police was present at the spot.
Accused and his brother Lekh Ram were also present. He saw the blood stains on the bed and on the wall of the room, where the dead body was lying. After 3-4 days of the occurrence, police called him to police post, Namhol.
Accused was also with the police. The accused on interrogation by the police admitted that the hammer was belonging to him and further disclosed that he had concealed the hammer nearby his cowshed. The police recorded the statement of accused in his presence Ext.
PW-3/A. It was signed by him. In his cross-examination, he has admitted that the disclosure statement of the accused was recorded by the police at his village after the recovery of hammer and clothes.
::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 1114. PW-9 Meenakshi Devi is the daughter of deceased. She has stated that accused and her mother .
never quarreled with each other. They used to live together happily. She did not know how her mother has expired because at that time she was married and came to know about her death subsequently. Accused never gave threat to her mother that he would kill her.
15. PW-10 Lekh Ram is another material witness.
According to him, he returned to home after his duty. On that day, his wife was not at home. His son and brother-
in-law's son were present at home. His brother Khazana Ram's house was nearby his house. Khazana Ram was working as Carpenter in Public Works Department. He was residing with his wife in his house. They have no issue except a daughter. They used to quarrel with each other. He also used to abuse his wife. On 31.3.2009, accused Khazana Ram called him and told that he should take dinner at his house. He had gone to the house of accused for taking meal. When they were present at the house of accused, he asked his wife to prepare roti of maize. His wife had also consumed liquor ::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 12 and refused to prepare roti. Thereafter, they started quarreling with each other. He tried to settle the matter.
.
Thereafter, he came to his house alongwith his son and son of his brother-in-law. Accused gave beatings to his wife in his presence. Blood started oozing out from the nose of his wife. In his cross-examination, he has admitted that his statement was recorded on 6.6.2009.
Distance between his house and house of accused was 20-25 feet. House of Kishori Lal was at a distance of 100 feet. He had brought wife of accused Vidya Devi from Rohru, about 14-15 years back and got her settled as wife of Khazana Ram after court marriage. He has also admitted that deceased and Khazana Ram were residing as husband-wife amicably for the last 14-15 years. He remained for two hours in the house of Khazana Ram on that day. He and his brother consumed liquor. He volunteered that deceased had already consumed the liquor. He has further admitted that when police arrived at the spot, accused stated that someone has killed his wife in the night. The police had detained him in the police station for a period of 11 days. He was detained by ::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 13 the police on the first day when the accused was also arrested by the police. One Raj Kumar of their village .
was also detained by the police for a period of 5-6 days, in the present case. The police had not produced him and Raj Kumar before the Magistrate. He was detained by the police in connection with the murder of Vidya Devi.
16. Statements of PW-11 Raj Kumar and PW-12 Hem Singh and PW-13 Balbir Singh are formal in nature.
17. rPW-14 Neelam Kumar has deposed that he remained posted as Head Constable in Police Station Barmana in the year 2009. On 2.4.2009, HHC Hem Singh deposited with him 8 parcels, out of which two parcels were sealed with seal impression 'A', one was sealed with seal impression 'S', one was sealed with seal impression 'MO', two with seal impression 'MO HC Namhol', one was sealed with seal impression 'M', one was sealed with seal impression 'H' and one was sealed with seal impression 'B'. On 5.4.2009, Constable Raj Kumar handed over to him one parcel which was sealed with seal impression 'A', one bag and a hammer, ::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 14 regarding which he made entry in the Malkhana register.
On 13.4.2009, he forwarded the case property to FSL .
Junga through Constable Balbir Singh vide RC No. 5/09.
He has proved the copy of RC Ext. PW-14/A.
18. Statements of PW-15 Sada Ram and PW-16 Inspector Meghnath are formal in nature.
19. PW-17 SI Diwan Singh has deposed that on 6.6.2009, he recorded the statements of three witnesses, namely, Lekh Ram, Jia Lal and HC Neelam Kumar, as per their versions. In his cross-examination, he has admitted that PW Lekh Ram neither assigned any reason for giving delayed statement nor he had recorded any reason for recoding statements after two months of the incident.
20. PW-18 Jagjit Singh has recorded the FIR Ext.
PW-18/A on the basis of Ext. PW-7/A.
21. PW-19 ASI Mohinder Singh has investigated the matter. He visited the spot and prepared spot map.
Photographs were also taken. Blood lying on the spot was collected. Post mortem was got conducted. Broken bangles, ear rings, a door handle and nut bolt lying on ::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 15 the spot were also taken into possession. Two mobile lying on the spot were seized vide Ext. PW-7/G. The .
accused was got medically examined vide application Ext. PW-1/B. On 4.4.2009, the accused while in police custody, gave a disclosure statement that he could get recovered hammer, with which he had killed the deceased. His statement Ext. PW-3/A was recorded. In his cross examination, he has denied that he has recorded any statement of Lekh Raj in pursuance of interrogation conducted by him. He has also denied that he had arrested Lakh Ram and Raj Kumar on 1.4.2009.
He has admitted that houses of Lekh Ram and Kishori Lal were adjoining to the house of accused and about 20- 25 persons lived in those houses. He has also admitted that he has not associated any other residents of the village in the investigation.
22. The prosecution case is entirely based on circumstantial evidence. In order to prove case based on circumstantial evidence, entire chain of evidence has to be completed and all the circumstances must point out towards the guilt of the accused. In the instant case, ::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 16 learned trial court has taken into consideration five circumstances while convicting the accused, including .
motive, quarrel, which has taken place between the husband and wife, presence of accused in the house and recovery of blood stained clothes of the accused.
23. According to the prosecution case, marriage was solemnized between accused and deceased 14-15 years ago. There was tension between husband and wife since deceased had not given birth to any child except daughter. FIR has been registered on the basis of statement made by PW-7.
24. We have gone through the rukka Ext. PW-
7/A. According to the averment made in the Rukka, since Khazana Ram had no child, it led to frequent quarrels between them. He believed that his Aunt (deceased) was killed by his uncle, Khazana Ram. PW-7 Kishori Lal, in his examination-in-chief has deposed that the accused had earlier two wives and they had already left his company since no issue was born. Deceased was third wife of the accused. There was no issue from the ::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 17 marriage. According to him, it could be the reason for their frequent altercations.
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25. PW-10 Lekh Ram in his cross-examination has categorically deposed that accused and deceased were residing as husband and wife for the last 14-15 years. PW-9 Meenakshi, though has been declared hostile by the prosecution, however, she has deposed that the accused and deceased never quarreled with each other. They used to live together happily. The reason assigned by PW-10 Lekh Ram for the death of deceased is that she has refused to prepare roti of maize.
She had already consumed liquor. Accused and deceased quarreled with each other. He tried to pacify them. The statement of PW-10 Lekh Ram does not inspire confidence. We have gone through the FSL report Ext.
PW-10/D. No alcohol was detected in the contents of parcels P/1, P/2, P/3, P/4 and P/5. PW-1 Dr. N.K. Sankhyan has also stated that no alcohol or poison was detected in stomach, small intestines, liver, spleen, blood and urine of the deceased, as per reports Ext. PW-1/D and Ext. PW-1/D. Since accused and deceased were ::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 18 living happily for the last 14-15 years, there was no occasion for the accused to kill his wife for the simple .
reason that she did not bear any child. PW-7 Kishori Lal has deposed that he was coming to his house and passed through the house of the accused then he heard that the accused and deceased were quarreling with each other. They were calling bad names to each other. They used to quarrel frequently for no reason. Thereafter, he proceeded to his house. He took his dinner and went to sleep. On the intervening night of 31.3.2009 and 1.4.2009, at about 3-3.30 am, he heard the noise of accused, who was stating that his wife has been killed by someone. However, he thought that accused was drunk.
He went to the house of the accused on 1.4.2009 at about 7.00 A.M. In his cross-examination, he has deposed that total 8 family members reside with him. His house was located at a distance of 20-25 meters from the house of the accused. His father and mother were also residing in the same house. The house of his uncle Lekh Raj was adjacent to the house of the accused. The voice of accused was heard by the other members of the family ::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 19 at about 3-3.15 am. He was claiming that his wife had been killed by someone. However, neither he nor any .
member of his family visited the house of the accused at that time. PW-10 Lekh Ram has also deposed that the house of PW-7 Kishori Lal was at a distance of 100 feet.
He had gone to the house of accused with his son and son of his brother in law. He has also admitted that the distance between his house and house of accused was 20-25 feet. PW-19 ASI Mohinder Singh has admitted that the houses of Kishori Lal and Lekh Ram were adjoining to the house of the accused and about 20 persons lived in those houses. It is not believable that when accused was shouting that his wife was killed by someone, no occupant of these houses would have come out. PW-7 Kishori Lal is the nephew of the accused and PW-10 Lekh Ram is his real brother. There were 18-20 members living in those houses. PW-7 Kishori Lal has admitted that his mother and father were also in the house. Voice of accused was also heard by other members of the family. PW-7, as noticed herein above, has deposed that he had gone to the house of accused at about 7.00 am.
::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 20The conduct of witness is abnormal. He would have gone to the house of accused after he heard the voice of .
accused that his wife had been killed by someone, instead of going to the house of accused in the next morning at 7.00 am. The explanation given by him is that the accused had gone to the police station and has told the police that his wife had been killed and thereafter one driver of the police department gave him a telephonic call whether the accused was narrating true facts. So- called driver of the police department has not been examined by the prosecution. The prosecution has neither examined the son of PW-10 Lekh Ram nor son of his brother-in-law who were stated to be present in the house of the accused. They were material witnesses.
26. It has come in the statement of PW-10 Lekh Ram that the police had detained him and Raj Kumar for 11 and 5-6 days, respectively. PW-19 ASI Mohinder Singh has deposed that he had never detained him.
Statement of PW-17 Lekh Ram under Section 161 of the Criminal Procedure Code has been recorded on 6.6.2009.
There is no explanation given by PW-17 Diwan Singh, ::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 21 why the statement of PW-10 Lekh Ram was recorded belatedly. Neither PW-17 Diwan Singh nor PW-19 ASI .
Mohinder Singh has recorded statement of Lekh Ram for two months of the incident. It casts doubt on the story of the prosecution. Statement under section 161 of the Code of Criminal Procedure should be recorded promptly and in case there is delay, it has to be explained. In the instant case, the prosecution has not explained the delay in recording statement of PW-10 Lekh Ram. Thus, his statement is to be discarded.
27. Their Lordships of the Hon'ble Supreme Court in Balakrushna Swain vs. The State of Orissa, AIR 1971 SC 804 have held that unjustified and unexplained long delay on part of investigating officer in recording statement of material eye witness during investigation of murder case will render evidence of such witness unreliable. Their Lordships have held as under:
"5. It has been contended before us that the evidence of P. W. 5 is also not reliable, in that he is inimically disposed to the deceased and was an interested witness inasmuch as he was the brother of Sundari whose side he was taking to obtain for her the status of a wife. In fact according to the submission of the learned Advocate the Appellant had not killed the deceased but the rafter had fallen while they were all ::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 22 quarrelling in the house of the deceased injuring the deceased and P. W. 5 as a result of which injury the deceased died. Thereafter there was a conference between P. W. 1, P. W. 5 and .
others all night in that house as to what should be done with the dead body and ultimately it was decided to remove the dead body to the paddy field put it on a bamboo platform which was to be built for this purpose and implicate the accused. Accordingly P. W. l was sent to give a report. As we said earlier the High Court did not rely on the evidence of P. W. I and P. W. 2 as in its view they could not have witnessed the occurrence. It was also observed that P. W. 1 was an interested witness being the sister's son of the deceased and also that he could not have seen the actual murder and assault as on his own showing he was proceeding to P. W. 2's house when the deceased who had gone to ease himself was assaulted while he was on his way to join him. P. W. 2's evidence was not relied on although he is stated to have been assaulted by (the accused) the Appellant, Pranakrushna Swain because there was no mark of injury on his person nor was he medically examined. P. W. l9, the Investigating. Officer admitted that although he had seen P. W. 2 in the Village from January 7 to January 13, 1966 he found no marks of assault on him nor did P. W. 2 consent for being sent to medical examination. As we have pointed out earlier P. W. 2 was also declared hostile and the prosecution allowed to cross-examine him. In these circumstances their evidence was rightly not relied upon to support the prosecution case as to who and in what circumstances the occurrence took place. The only other evidence is that of P. W. 5 who was not examined till the 15th January i.e. till after 10 or 11 days of the incident. There was no reason why P. W. 19 could not have examined him because on his own showing P. W. 19 had met P. W. 5 while he was going to the Village when P. W. 5 was being taken to the Hospital. No doubt P. W. 19 says that P. W. 5 was not in a condition, for him, to record his statement but apart from his saying so he does not tell us in what condition P. W. 5 was. P. W. 5 went to the Ersama Primary Health Centre where Dr. ::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 23 Kanungo P. W. 22 who was then the Medical Officer Incharge had examined him on receiving a requisition Ex. 11 from the Police. According to the Doctor, P. W. 5 was under his .
treatment from 7-1-1966 to 12-1-1966. On examination he found four wounds:
(1) "One contused wound with blood clot over the injury over the surrounding tissues, extending to face. The margins were rough and regular. The size of injury was 11/2" x 1/4". As the injury was bleeding I could not measure its depth, but the injury had a depth. The injury was on the left side head.
(2) One contused wound with blood clot, with haematoma of mucous surface on right side upper lip.
The size of the injury was 1/4", x 1/4" The colour of the injury was black.
(3) One bruise with swelling 3" x 11/2" on the left fore- arm dorsal aspect-close to elbow joint.
(4) One bruise with swelling 2" x 1" on left side back over scapula"
In cross-examination the Doctor admitted that P. W. 5 was not treated as an emergency patient and since there were only 2 beds for emergency cases he did not admit him as Indoor patient and that P. W. 5 was making his own arrangement for his stay and attending the Primary Health Centre daily for his treatment. P. W. 5 however states that he was admitted as an indoor patient for 12 days which cannot be accepted in view of the Doctor's evidence. While noting this divergence in the evidence of P. W. 19 and P. W. 5 the High Court seems to accept an explanation given by the Public Prosecutor that because P. W. 5 was being seen by the P. W. 19 every day, P. W. 5 may have made arrangements for his stay in the Hospital premises but this is no-one's case. P. W. 19 says that P. W. 5 was coming everyday for treatment but there is no evidence as to whether P. W. 5 was staying in the Hospital premises or elsewhere, as such we find no justification in accepting the statement of P. W. 5 which in our view is a falsehood. In answer to a question by the Additional Sessions Judge P. W. ::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 24 22 says he found a laceration in injury No. 1 although he did not mention the word laceration. He however admitted that in a contused wound there is always a laceration but the margins .
are regular. In further cross examination the Doctor said that since the margins of injury were regular he mentioned it as a contused wound instead of a lacerated wound and noted accordingly in his report Ex. 11/1. He further states that by a lathi no incised wound can be caused. Incised wounds have always some depth. In injury No. 1 also he found a depth but says that in contused wound also there can be some depth. This evidence clearly shows that P. W. 5 was not certainly, in a condition where his statement could not have been taken.
The statement by P. W. 5 that he was an indoor patient was an attempt to support P. W. 19's explanation for not recording his statement earlier. That there was no valid reason for P. W. 19 not to record his statement earlier when he met P. W. 5 on the 7th itself is clear from his admissions that after he received the injuries he did not lose his senses and in fact sat at the place where the incident took place for two ghadis. The High Court itself has commented on the lapses in investigation and the delay in examination of P. W. 5 who was a material witness; none-the-less it merely says ''even so the evidence of Chakradhar P. W. 5 cannot be rejected on account of his delayed examination by the investigating officer. In our opinion the delayed examination does not affect the veracity of Chakradhar Swain". Why when a similar statement made by P. W. 1 regarding the occurrence is not relied on, the statement of P. W. 5 should be relied particularly when such a long delay in his not being examined earlier is not explained.
The High Court said that the Doctor P. W. 22 had not mentioned that there was a bleeding injury on the right side fore-head in certificate Ex. 11/1 although such an injury was mentioned in the Police requisition Ex. 11 of 7-l-66. This comment we may observe is not warranted because the Doctor was not cross-examined in respect of these discrepancies. The mere fact that P. W. 19 had given a requisition to examine P. W. 5 for an injury on the right side does not necessarily ::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 25 establish that the injury was on the right side. A good deal of cross-examination was directed in respect of the Report Ex. 11/2 given by him but nowhere was he asked as to whether .
there was an injury on the left side and why he had omitted to mention it. It is no one's case that there were two wounds one on the left side and the other on the right side. What P. W. 5 says is that Laxmidhar gave him four lathi blows as a result of which he had bleeding injury on the nostril and on the left side of head and he fell down because of this assault. The Doctor however said that this injury was on the right side. While there could have been a mistake whether the injury was on the right. side as spoken by the Doctor or on the left side as spoken by the injured, there could be no mistake as to whether there could be one wound or two wounds because the witness does not speak about his having two wounds one on the left side and the other on the right side. Further P. W. 5 says that the Doctor gave him a discharge slip on the day he was discharged but later took it back after consultation with the Thana Babu and thereafter he did not give him any discharge slip. P. W. 5's blood stained clothes were also seized on the 15th about 10 days after the incident. The witness wants us to believe that for these 10 days he was wearing these blood stained clothes without removing them.
6. In view of all these incongruities we think there is justification in the comment of the learned Advocate for the accused that the delayed examination of P. W. 5 by P. W. 19 would give an opportunity to P. W. 5 to concoct a different version than what actually took place.
8. The above passage would show that the Sessions Judge was trying to reconcile the contradictions in the two statements of P. W. 5 by holding that the accused had both a Katuri and a lathi in his hands. This is so because P. W. I also says that the Appellant had a Katuri and a lathi when he attacked the deceased. It is in our view difficult to comprehend how he could carry a lathi in one hand and a Katuri in the other and still be free to give a Lathi or Katuri blow on the head of the deceased with such force and ::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 26 intensity as would cause the kind of injury which caused the death of the deceased. Be that as it may, the High Court as we have pointed out earlier relied on the statement of P. W. 5 .
made in the Committal Court in holding that the blow was given by a lathi. We however find that the Sessions Judge brought the deposition of P. W. 5 in the Committal Court on record under Section 288 of the Criminal Procedure Code not at the time when P. W. 5 was being examined but after the evidence for the prosecution was closed and after the statement of all the accused were recorded. The next day i e., 8-12-66 it would appear the defence counsel tendered the deposition of P. W. 2 in the Committal Court but the Sessions Judge not only admitted that evidence but also the evidence of P. W. 5 in the Committal Court under Section 288, Criminal Procedure Code. Whether this is the proper procedure need not now concern us but even so the High Court failed to note that in the Committal Court the witness had not said that the Appellant was carrying a Katuri also, but none-the-less in the Sessions Court he insists that he had said so. Similarly he denied that he stated in the Committal Court that the blow on the head was given by a lathi. In any case if the statement in the Committal Court is to be taken the first blow, which was given by the Appellant was with a stick and was on the head and the second blow was on the waist. In the Sessions Court however, he stated that the first blow with a lathi was on the waist and after the deceased fell down it was only then the fatal blow was given on the head. These contradictions ordinarily would by themselves not have much significance but where as in this case the witness for no justifiable reasons was not examined for nearly 10 days and he is found to be telling falsehoods on material aspects of the case it becomes difficult to place any reliance on such testimony particularly when he tries to conform to the evidence of P. W. 1 in the Sessions Court that the first blow was given by a lathi on the waist and the second by a Katuri on the head. When this very statement of P. W 1 has not been relied on by the High Court there is no reason for taking a part of his statement from the ::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 27 Sessions Court and a part from the Committal Court to piece it as a whole for a narration as to how the deceased was killed. There are also other circumstances in this case which though .
may not support the defence version of how the incident took place none-the-less indicate that there have been confabulations and consultations between P. W. 5 and the other witnesses immediately after the death of the deceased.
The fact that the dead body was put on a bamboo platform which was constructed for that purpose in the paddy fields would indicate that the incident may not have taken place as spoken to by the witnesses. The evidence of P. W. 1 shows that on the date of the occurrence he, Mahani Uttam Fakir, Nisakar had discussions for two hours in the house of Bharmar. The question naturally arises as to what they were discussing. Were they discussing as suggested by the learned Advocate for the Appellant as to what story must be told about the death of the deceased? This admission merely indicates that the version in first information was not spontaneous. P. W. 2 says that the Appellant dragged the deceased and Laxmidhar Swain caught hold of the neck of the deceased and threw him on the floor and then the Appellant assaulted him with a Katuri on the head. This caused bleeding injury and death on the spot. The witness further says in cross- examination that there was a quarrel between the deceased and his brother-in-law (Sala) on the date of occurrence. This quarrel between Sala and Behnoi took place two ghadis before sunset. He also said that the deceased never used to stay in his -the witness's house but on the day of the occurrence he was going to stay in his house. On the evidence of P. W. 1, 15 days before the incident, he the deceased's mother and younger son came to live in the deceased's house at Nachhipura. When the deceased found that his house was broken down, he started to build it, on the day of the incident when there was a verbal wrangle and physical struggle between the deceased on one side and the Appellant and P. W. 5 on the other in respect of a rafter brought by the deceased from the house purchased from Fakir Swain. In fact he admits at this ::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 28 time a wooden rafter fell down but it did not cause any injury to the deceased and P. W. 5. The witness also speaks of enmity between P. W. 5 and the deceased because P. W. 5 was .
supporting Sundari. There seems to have been a Criminal Case filed by the deceased against Sundari. P. W. 5 and the Appellant sometime before the incident and according to the witness on the day of the incident P. W. 5 and the Appellant were on one side when the physical struggle as spoken to by P. W. 1 took place against the deceased. Relying on this evidence the learned Advocate for the Appellant contends that on the day of the incident there was a quarrel and a physical struggle about the rafter brought from the house purchased by deceased from Fakir Swain, in which P. W. 5 and the Appellant were on one side and the deceased on the other. In this physical struggle it is contended that blows may have been exchanged between P. W. 5 on the on hand and the deceased on the other in which P. W. 5 caused a fatal injury to the deceased, while deceased was responsible for injuries on P. W.
5. Thereafter it is alleged that P. W. 5 with the help of P. W. 1 and other cooked up and concocted the story against the Appellant and others as they were also inimical and would have a motive for killing the deceased. Whether there is justification for this contention which is merely based on the testimony of P. W. 1 that there was quarrel and physical struggle between the deceased on one side and P. W. 5 and the Appellant on the other, there are several features in this case to which we have referred which will certainly create a doubt as to the veracity of P. W. 5's statement. If P. W. 1's testimony about the occurrence cannot be relied on the same parity of reasoning the evidence of P. W. 5 also is not dependable. The evidence to which we have referred would show that the eye witnesses have not come out with the truth as to how the occurrence took place and where it took place. In the circumstances it would be unsafe to rely on it, in convicting the accused. We accordingly allow the Appeal, set aside the conviction and direct the accused to be released."::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 29
28. Their Lordships of their Hon'ble Supreme Court in Ganesh Bhavan Patel and another v. State .
of Maharashtra, AIR 1979 SC 135 have held that delay of a few hours, simpliciter, in recording the statements of eye-witnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced. Their Lordships have held as under:
"14. Keeping in mind these principles, with the aid of Shri Javali, amicus curiae for appellant No. 2, we have carefully examined the evidence of all the material witnesses and also the judgments of the Courts below.
15. As noted by the Trial Court, one unusual feature which projects its shadow on the evidence of P. Ws. Welji, Pramila and Kuvarbai and casts a serious doubt about their being eye-witnesses of the occurrence, is the undue delay on the part of the investigating officer in recording their statements. Although these witnesses were or could be available for examination when the investigating officer visited the scene of occurrence or soon thereafter, their statements under S. 161 Cr. P. C. were recorded on the following day. Welji (P. W. 3) was examined at 8 a. m., Pramila at 9.15 on 9.30 a. m., and Kuvarbai at 1 p. m. Delay of a few hours, simplicites, in recording the statements of eye- witnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if ::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 30 there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye-
.
witness to be introduced. A catena of circumstances which lend such significance to this delay exists in the instant case.
18. In this connection, the second circumstance, which enhances the potentiality of this delay as a factor undermining the prosecution case, is the order of priority or sequence in which the investigating officer recorded the statements of witnesses. Normally, in a case where the commission of the crime is alleged to have been seen by witnesses who are easily available, a prudent investigator would give to the examination of such witnesses precedence over the evidence of other witnesses. Here, the natural order of priorities seems to have been reversed. The investigating officer first recorded the statement of Ravji, in all probability, between 12.45 and 3 a. m. on the 30th, of Constable Shinde at 4 a. m. and thereafter of Welji, Kanjibhai (P. W. 7) Santukbai (P. W. 6), Pramila, and Kuvarbai, between 8 a. m. and 1 p. m.
29. Thus considered in the light of the surrounding circumstances, this inordinate delay in registration of the 'F. I. R.' and further delay in recording the statements of the material witnesses, casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story."
29. Division Bench of Calcutta High Court in Jamiruddin Molla vs. The State and others, 1991 Cri.L.J. 356 has held that in a criminal trial it is for the prosecution to offer explanation for the lapse of the Investigating Officer in not examining the witness ::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 31 immediately after the incident occurred. Their Lordships have held as under:
.
12 P.W. 3 was examined on 30-8-81 whereas the incident took place on 15-7-81. It may also be mentioned that F.I.R. was lodged long after the incident. No explanation was given by the prosecution for not examining P.W. 3 immediately after the incident occurred. But the learned Judge found certain explanation for the lapse of the Investigating Officer. He stated that although the Investigating Officer has not given any explanation as to why P.W. 3 was examined after 1 1/2 months but since he was implicated in a criminal case arising out of the assault of the brother of the appellant 'naturally therefore the witnesses would not venture to appear before the Investigating Officer to make statement'. In our view, it was for the prosecution to offer explanation. It was not for the learned Judge to make out a case for the prosecution. It was for the Investigating Officer to find out likely witnesses in course of investigation. The witnesses would not come voluntarily to the Investigating Officer for making statement.
In our view the learned Judge misdirected himself in trying to offer explanation for the prosecution."
30. The Division Bench of Bombay High Court in Raja Sharnappa Zinge and Two others vs. State of Maharashtra, 1996 (2) Crimes 314 has held that inordinate delay in interrogation of witness during investigation is sufficient ground to exclude his testimony in considering involvement of accused in crime. The Division Bench has held as under:
::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 32"[8] We have heard Mr. D.B. Bhosale, for the appellants Smt. S.J. Pingulkar, Additional Public Prosecutor for the State of Maharashtra at considerable length. We have also perused the .
material exhibits, the deposition of the witnesses and the impugned judgment. After giving our anxious consideration to the matter, we are of the view that this appeal deserves to be partly allowed. In our view, the appellant Dilip Sharnappa Zinge deserves the benefit of doubt on all counts and although the conviction and sentence of appellants Raja Sharnappa Zinge and Sanjay Sharnappa Zinge deserves to be confirmed under section 302 read with 34 I.P.C., they deserve to be acquitted under section 506 read with 34 I.P.C. The crucial question in this appeal is whether the evidence of the four eye-witnesses examined by the prosecution inspires confidence or not? We now propose answering the same.
rThe informant Jagannath P.W. 3 in his statement in the trial Court has described extensively as to why and how the incident took place. We do not propose repeating the aforesaid facts because it is on their basis that we have set out the prosecution story as contained in paragraph 2. The manner of assault deposed to by him viz., of appellants Raja and Sanjay assaulting the deceased with axe and knife respectively is corroborated by the nature of the ante mortem injuries suffered by the deceased P.W. 11 Dr. Manohar More who performed the autopsy on the dead body of the deceased clearly stated that these injuries could be caused by the knife and axe which were shown to him while he was deposing the trial Court.
So far as other witnesses are concerned, we find that P.W. 9 Babu Chikalgi only fixes the date, time, place of incident and the presence of Jagannath. He in a general manner stated that the accused persons assaulted Prakash. He does not even say that they are the same persons who are present in the Court. Thus, in our view, his evidence corroborates the presence of Jagannath on the date, time and place of incident and fixes the date, time and place of incident.::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 33
As regards P.W. 10 Machindra we find that we cannot place any reliance on his testimony because in his cross- examination he admitted that he was deposing falsely at the .
instance of the police. For reason best known to it, the prosecution has not chosen to get this witness declared hostile. In such a situation we are left with no other option but to eliminate his evidence.
This brings us to the statement of eye-witness P.W. 12 Raja @ Motilal. the version of assault as given out by him is same as that deposed to by Jagannath P.W. 3. He too like Jagannath stated that appellant Dilip had caught hold of the hands of the deceased Prakash while appellants Raja and Sanjay were assaulting him with axe and knife respectively.
Mr. Bhosale, learned Counsel for the appellants urged that no reliance can be placed on the testimony of this witness because he was interrogated under section 161 of the Code of Criminal Procedure as late as 22-2-1993 and no cogent explanation has been furnished by the prosecution for the aforesaid delay of two months in his interrogation. The witness tried to explain this delay in his interrogation by alleging that he had gone to Latur but there is no mention of this fact in his statement under section 161 of the Code of Criminal Procedure and when he was confronted with this omission all what he could say was that he could not say as to why the police had not mentioned it in his statement under section 161 of the Code of Criminal Procedure. In our view this inordinate delay in his interrogation during investigation is itself a sufficient ground for excluding his testimony in considering the question of involvement of the appellants in the instant crime. In this context it would be apposite to refer to the observations of Their Lordships of the Apex Court in paragraphs 15 and 18 in the case reported in A.I.R. 1979 S.C. 135, (G.B. Patel v. State of Maharashtra)1, which are to the following effect.
"15.....Delay of few hours, simpliciter, in recording the statements of eye-witnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume ::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 34 such a character if there are concomitant circumstances to suggest that the investigator was deliberately making time with a view to decide about the shape to be given to the case .
and the eye-witnesses to be introduced."
"18.....Normally, in case where the commission of the crime is alleged to have been seen by witnesses who are easily available, a prudent investigator would give to the examination of such witnesses precedence over the evidence of other witnesses."
Mr. Bhosale also urged that this witness has tried to make improvements in his statement in the trial Court which erode his credibility. In this connection he invited our attention to the fact that although in his statement in the trial Court this witness has attributed the role of catching hold of the hands of the deceased to appellant Dilip but in his statement recorded under section 161 of the Code of Criminal Procedure there is no mention of it. Mr. Bhosale invited our attention to that portion of the statement of this witness contained in para two of his cross-examination wherein he stated, when confronted with this omission, that he had mentioned it to the police and could not assign any reason for the aforesaid omission."
31. Division Bench of Bombay High Court in Janardhan Ragho Mhatre and others vs The State of Maharashtra, 1996 Cri.L.J. 4180 has reiterated that prompt interrogation lends assurance about credibility of witnesses. Division Bench has held as under:
"[15] Another circumstance which lends assurance to the claim of these eye-witnesses of having seen the incident is their promptly being interrogated by P.S.I. Nallawade under section 161 Cr.P.C. Radhabai was interrogated by him on the date of the incident itself and Vithabai and Anandi the next ::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 35 day. Prompt interrogation under section 161 Cr.P.C. lends assurance to the Court about the credibility of a witness and goes a long way to dispel any doubt in the mind of the Court .
about a witness being a got up."
32. Division Bench of Bombay High Court in Bhalchandra Namdeo Shinde vs. State of Maharashtra, 2003 (3) Crimes 525 has held that unexplained long delay in recording statement of material eye-witness during investigation will render evidence of such witness unreliable. Division Bench has held as under:
"[20] The Supreme Court has considered what is the consequence of unjustified and unexplained long delay in recording the statement of material eye-witness in the case of (Balakrushna Swain v. The State of Orissa) A. I. R. 1971 S. C.
804. The Supreme Court has held that unjustified and unexplained long delay on the part of Investigating Officer in recording statement of material eye-witness during investigation of murder case will render the evidence of such witness unrealiable."
33. The learned trial Court has given undue importance to the statement of the accused recorded under Section 313 of the Criminal Procedure Code.
Accused has only admitted that Lekh Ram was present in his house and has taken liquor with him. The other ::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 36 circumstance relied upon by the trial court is that recoveries were effected on the basis of disclosure .
statement Ext. PW-3/A, which led to recovery of hammer, alleged weapon of offence. PW-3 Dila Ram has deposed that the accused had made disclosure statement Ext. PW-3/A. In his cross-examination he has testified that the accused did not get the hammer recovered. He has also deposed that Ext. P-1 was shown to him at police post Namhol, including the pants and shirt Ext. P6 and Ext. P7. PW-8 Prem Lal has deposed that accused has got hammer recovered in his presence.
In his cross-examination, he has admitted that he was called by the police to the spot because no neighbour was ready to join the investigation. In his cross-
examination he has deposed that disclosure statement was recorded by the police at his village after the recovery of hammer and the clothes. PW-3 Dila Ram, witness of recovery, was declared hostile. He has not supported the case of the prosecution. Thus, the recovery of the hammer at the instance of accused is doubtful.
::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 3734. Mr. M.K. Khan, learned Additional Advocate General, has drawn the attention of the Court to the .
extra-judicial confession made by accused to Dila Ram.
According to PW-3 Dila Ram, the accused told in his presence that he has killed his wife and at that time, the witness Prem Lal, BDC member was also present.
However, PW-8 Prem Lal has not uttered even a single word about the extra-judicial confession made by accused before them.
35. The learned trial court has taken the blood of deceased on clothes as circumstance against the accused. It has come on record that the accused has lifted the dead body of the deceased. The possibility of his clothes stained with blood of deceased, thus, can not be ruled out.
36. The matter is required to be considered from another angle. We have seen the nature of injuries. There are multiple injuries on the body of deceased as per post mortem report Ext. PW-1/A. There are injuries on the private parts of the deceased as well. It has come in the inquest report that the Salwar of the deceased was ::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 38 reversed. PW-1 Dr N.K. Sankhyan has noticed the following injuries on the private parts of the body of .
deceased:
(17) Purplish red coloured contusion was present, extending from iliac crests on both sides to vulva, parieneal and peri anal regions. It was 38 cm in length on left side and 36 cm on left side, on dissection, subcutaneous tissues, muscles were grossly contused with presence of multiple big clots, moreso on left side, there was fracture of pelvis on left side. Clotted blood was present about 200/300 ml. there was laceration of urethral opening with presence of bleeding. Bleeding and clotted blood was present in the vaginal orfic ralongwith laceration of vagina on both sides, laceration on each side was 2cm x 3 cm.
37. He has also deposed that injures on the private parts of the deceased could be caused when the private part was naked. The accused would not have removed the clothes of the deceased before allegedly killing her. He has also admitted in his cross-
examination that the handle of the hammer appeared to be newly prepared with rough surface. He has admitted that there may be more than one weapon of offence and there may be more than one person involved in causing the injuries. There is material on record that accused had gone to the police station to inform about the death ::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 39 of his wife. In case, accused had killed his wife, he would not have gone to the police station to lodge the report.
.
PW-7 Kishori Lal in his statement has deposed that he visited house of accused in the morning since he received a telephone from another driver that accused had come to the police station and telling that his wife had been killed by someone. Thereafter, he was asked to confirm whether it was true and false. He telephonically informed the police that the accused was telling the true facts. PW-7 Kishori Lal in his examination-in-chief has also deposed that accused had come to his house after some time, who told that he also informed the police regarding the death of his wife. In the instant case, the prosecution has failed to prove the entire chain of circumstances against the accused.
38. Consequently, in view of analysis and discussion made hereinabove, the prosecution has failed to prove the case for offence under section 302 of the Indian Penal Code beyond reasonable doubt against the accused.
::: Downloaded on - 15/04/2017 17:46:11 :::HCHP 4039. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 20.7.2010 rendered in .
Sessions Trial No. 17 of 2009 is set aside. Accused is acquitted of the charge framed against him by giving him benefit of doubt. Fine amount, if already deposited, be refunded to the accused. Since the accused is in jail, he be released forthwith, if not required in any other case.
40. The Registry is directed to prepare the release warrant of accused and send the same to the Superintendent of Jail concerned in conformity with this judgment forthwith.
(Justice Rajiv Sharma), Judge.
(Justice Sureshwar Thakur), Judge.
13.3.2015 *awasthi* ::: Downloaded on - 15/04/2017 17:46:11 :::HCHP