Himachal Pradesh High Court
State Of H.P. vs Parkash Chand And Ors. on 8 October, 1996
Equivalent citations: 1997CRILJ1979
Author: Arun Kumar Goel
Bench: Lokeshwar Singh Panta, Arun Kumar Goel
JUDGMENT Arun Kumar Goel, J.
1. Parkash Chand respondent, Smt. Saina Devi his mother and Tek Chand his brother have been acquitted by Shri Janeshwar Goel, Addl. Sessions Judge (1) Kangra Division at Dharamsala in Sessions Case No. 12 of 1986 and Sessions trial No. 9 of 1986. Parkash Chand was charged under Section 302 read with Section 201 of the Indian Penal Code for having committed murder of his wife Smt. Reeta Devi as also for having caused disappearance of the evidence with intention to screen himself from legal punishment. Other two respondents, namely, Tek Chand and Saina Devi were charged under Section 201 read with Section 34 of the I.P.C. for having allegedly committed offence of disappearance of the evidence of the dead body of the wife of Parkash Chand respondent with an intention to screen the said Parkash Chand from legal punishment. It is this acquittal of the respondents which has been impugned by the State in the present appeal.
2. Brief facts of the case are that late Rita Devi was earlier married to one Dr. Joshi of Banars and thereafter she had re-married Milkhi Ram (PW-5). On 24-4-1986 he had divorced late Rita Devi when Rs. 4000/- were paid in cash to her, besides this she was stated to be possessed of her ornaments and clothes. Further ease as revealed from the prosecution story is that on 29-5-1986, Bahadur Singh (PW-1) who is serving as a soldier in the Army saw at about 2.30 p.m. while on his way from Jungle to his house at Village Kandog smoke emanating from the house of the respondents. He immediately went to Sher Singh Subedar informing him about the fire having broken out in the kitchen room of respondent Parkash Chand and as such he (Sher Singh) should accompany him to extinguish the same, who informed this witness to call 3-4 more persons so that the fire could be extinguished. While PW-1 Bahadur Singh was coming out of the house of Sher Singh, he saw Shri Duni Chand, Ranu Ram, Prem Singh, Chuni Lal and Milkhi Ram on the way who were coming with the 'Doli' of the daughter of Vakil Singh. This witness is stated to have informed the aforesaid persons who told him that they would come back after leaving the 'doli' at the house of Vakil Singh. After the aforesaid persons reached the house of Vakil Singh it started raining and after one hour all of them came to the house of Parkash Chand when they saw respondents Saina Devi and Tek Chand standing in the verandah of their house and on enquiries made by Duni Chand regarding their having not raised noise when the fire had broken out in their house, to which enquiry both of them remained silent. Thereafter, Milkhi Ram is stated to have opened the door of the kitchen and all of them saw the dead body of Rita Devi lying burning near the hearth and it was wrapped in a gunny bag. At this stage it may be pointed out that more than half of the dead body had already been burnt. On the asking of Duni Chand, Milhi Ram poured water on the dead body of Rita Devi. Further case of the prosecution is that Pradhan of the panchayat and Chowkidar were called for and then enquiries were made from the respondents Saina Devi and Tek Chand, when Saina Devi made extra-judicial confession regarding the manner in which Rita Devi was done away with by Parkash Chand respondent on the previous night by giving 'Bhaempla' (of iron) blow on the head of Rita Devi which resulted in her death. On the night of 29-5-1986 Pradhan had sent a written report to the police through Bidhi Singh. Police of Police Station Kundhian reached the spot on the next morning i.e. 30-5-1986 and investigation was undertaken by Sappo Singh, H.C. (PW-13). The Ruqa received by this witness was Ex. PG, who made his endorsement on it vide Ex. PG/1 and on the basis whereof FIR Ex. PO was recorded at Police Station, Jawalamukhi. While going to the spot this H.C. also informed the S.H.O. on phone. This witness got the dead body of Rita Devi photographed from PW-10 Rajiv Sood Photographer. After inspecting the dead body, Sappo Singh (PW-13) had filed in the inquest report (Fix. PJ) and the same is signed by him. The statements of Rai Singh and Prem Singh PWs regarding occurrence were not recorded by him, but both of them had identified the dead body.
3. After committing the crime of killing Rita Devi, Parkash Chand put her dead body in a gunny bag and left it in the kitchen. Some wood and shail bark of Biul wood were put on the dead body. Parkash Chand is stated to have left for his work after instructing his mother to put the dead body on fire and according to the prosecution story as revealed by this witness, she had in fact put the dead body to fire and closed the door of the kitchen. Not only this, but she herself benefit went away to jungle after bolting the door.
4. It is in the aforesaid facts and circumstances that the case was sent to trial for the offences with which the respondents were charged before the Court below and after trial all of them were acquitted.
5. Shri D. C. Pathik, learned Additional Advocate General, pointed out that in the instant case, circumstantial evidence coupled with the extra-judicial evidence of respondent Saina Devi made to PW-3 Rai Singh Pradhan in the presence of PW-1 Bahadur Singh and PW-5 Milkhi Ram, it is clearly established that the respondents are guilty of the offences with which they were charged. In support of this appeal he has drawn the attention of this Court to be statements of PW-1 Bahadur Singh, PW-2 Duni Chand, PW-3 Rai Singh. PW-5 Milkhi Ram and PW-12 Dr. Amarjit Singh Dadwal. PW-12 Dr. Amarjit Singh Dadwal performed post-mortem examination of dead body of the deceased, PW-13 Sappo Singh partly investigated the case as well as PW-15 Sita Ram, S.I. S.H.O. who had partly investigated the case. According to Mr. D. C. Pathik, the extra-judicial confession was spontaneous and natural without any threat, promise or inducement having been voluntarily made by the respondent Saina Devi in the presence of her son Tek Chand respondent, which according to him was made with an intention to speak truth and abjure themselves of the charge of guilt. On the other hand, Shri Harish Behal, learned counsel appearing for the respondents while controverting the submissions made on behalf of the appellant has referred to the infirmities and inconsistencies in the prosecution evidence and has pointed out that the acquittal of the respondents calls for no interference in the present appeal. While doing so, Shri Behal has pointed out that the conduct of the so-called persons who are stated to have seen the kitchen of the respondents being on fire and smoke coming from it, was highly unnatural and improper. Besides this, Shri Harish Behal has also pointed out that so-called extra-judicial confession of Saina Devi is no confession in the eyes of law and further according to him admittedly no confession has been made either by Parkash Chand or Tek Chand respondents. As such according to him, there is no evidence either direct or indirect to sustain the prosecution against the respondents. Alternatively, it was argued that in case there is any such extra-judicial confession, as alleged by the prosecution, the same is hit under the provisions of Section 30 of the Evidence Act and his clients are entitled to acquittal. In respect of other circumstances, Shri Behal has drawn the attention of this Court to Ex. PG Ruqa sent by Pradhan on the basis whereof PW-13 slates to have filled in inquest report and has further pointed out that investigation is neither fair nor it reveals the true state of affairs. On these circumstances, Shri Harish Behal has pointed out that the acquittal of the respondents calls for no interference in the present appeal and he has prayed for the dismissal of the appeal in question.
6. According to prosecution as per so-called extra-judicial confession of Saina Devi, the offence is stated to have been committed by Parkash Chand respondent who hit the head of the deceased with an iron bhiaimpla. when Rita Devi died. In order to ensure that the evidence of the commission of the offence dis-appears with a purpose to screen the offender Parkash Chand. Saina Devi and Tek Chand are stated to have put the dead body to fire on the morning of 29-5-1986 after the same was put in a gunny bag in the kitchen over which bark of Biul tree and wood have been put. In the face of this evidence produced by the prosecution, after the charges framed against the respondents are seen, it is clear that instant offences are alleged to have been committed on or about 29-5-1986 at about 8 AM at village Kandhog. In this view of the matter, there is no charge for having committed the death of Rita Devi in the night of 28-5-1986 as revealed to witnesses by Saina Devi in her extra-judicial confession. The motive for commission of offence attributed to Parkash Chand is that on 28-5-1986 Rita Devi had gone to Village Khodu with aritlces in the Kami, but she came back empty handed. It is at this time that Parkash Chand is stated to have hit the deceased with iron Bhaempla resulting in her death. It is also in prosecution evidence that after commission of the offence, dead body of Rita Devi was put in the gunny bag on the advice of Roshan Lal. Parkash Chand is stated to have left for his labour work on the morning and Saina Devi and Tek Chand left for jungle to collect the grass as per prosecution after the body had been put to fire. So far participation of Saina Devi in the commission of offence of murder is concerned, she had not done anything to commit the said offence nor she has been charged with the same. Needless to point out that the person who makes extra-judicial confession has to slate something in respect of the offences with which all of them arc charged. In respect of the commission of the offence of murder, the statement of Saina Devi even if it be accepted for the sake of argument does not bring home the guilt against Parkash Chand and as such, prosecution cannot derive any benefit out of it. In respect of the part played by her in disappearance of the evidence with a purpose to screen Parkash Chand of the offence of murder it will not be safe to accept the same. No doubt, she has admitted to have lit the fire to the wood that was put on the dead body wrapped in gunny bag of the deceased, yet if a reference is made to the statement of PW-1 Bahadur Singh, he was specific in Court that the dead body was put to fire by Saina Devi whereas before the police in his statement under Section 161 Cr. P.C. he was specific that it was put to fire by Tek Chand. So far PW-5 Milkhi Ram is concerned, he has reason to depose against the respondents because deceased was his divorced wife and for obtaining divorce this witness had to pay Rs. 4000/-. Needless to point out that by now it is well settled that so far extra-judicial confession is concerned, it is a very weak piece of evidence and unless it is corroborated by other reliable and trustworthy evidence, it would not be safe to convict an accused solely on the basis of extra-judicial confession as in the presnt case.
7. A reference when made to Ex. PG, it is clear that PW-3 Rai Singh while sending the ruqa about the incident in question to the police at Police Post Kundian, has not stated anything regarding the extra-judicial confession having been allegedly made by Saina Devi or any other of the two respondents. Had at any stage extra-judicial confession been made in the ordinary course of things, it would have found mention in this Ruqa Ex. PG. On the other hand it is detailed in Ex. PG that on 29-5-1986 between 8 and 9 A.M. Parkash Chand son of Dewan, Saina Devi widow of Dewan Chand and Tek Chand son of Dewan Chand have jointly murdered Rita Devi and her dead body after being put in gunny bag was put to fire which is still burning. When a reference is made to Ex. PJ i.e. inquest report, in column No. 12, a reference is made to the following effect :
^^12 Hkksaiyk ls ekjdj ,d cksjh VkV esa yisVdj o rsy vknh Mky dj fQj ij ydMh Qsd j[k dj vkx yxkbZ xbZ gS A** This clearly indicates that when this inquest report was filled in, the prosecution was aware regarding the deceased having been hit with 'bhaempla', whereas PW-13 HC Sappo Singh is specific in his statement that he had filled in the inquest report Ex. PJ and had not recorded the statements of either Rai Singh or Prem Singh. Record of the case shows that the statement of Bahadur Singh was recorded on 30-5-1986, on the same date statements of Milkhi Rain Ex. PL and that of Rai Singh Ex. PK were recorded by SI SHO Sita Ram (PW-15). This clearly is indicative of the fact that when the forms in respect of inquest report were filled in PW-13 was not aware regarding extra-judicial confession much less the deceased having been hit with an iron bhaempla, it is not understood how the aforesaid fact was noted in the form of inquest in "column No. 12 thereto as reproduced herein-above. It may be clarified here that Shri D. C. Pathik was not in a position to reconcile this factual position.
8. In addition to Milkhi Ram (PW-5) being a person interested to get the respondents prosecuted as detailed above, when his statement is read with that of PW-6 Chuni Lal and PW-3 Rai Singh, it is evident that either the first two are telling lie or Rai Singh Pradhan (PW-3) have not come out with the true facts. In this behalf, it may be appropriate to mention that statement of PW-3 clearly speaks of his having come to know regarding the occurrence from Saina Devi as to how it has taken place. In these circumstances, it would not be safe to accept the statements of so-called witnesses in whose presence the extra-judicial confession is alleged to have been made by the respondent Saina Devi.
9. So far the recovery of 'bhaempla' vide recovery memo Ex. PL is concerned, suffice it to say that firstly there is no evidence to show that the offence was committed with it and if so-called extra-judicial confession of Saina Devi is excluded, then there is no evidence to connect Ex. P2 with the commission of the alleged offence. Needless to point out that mere recovery of so-called weapon of offence is of no consequence nor can it be said to be a circumstance to bring home the guilt against the respondents. Similarly, for what reason either Parkash Chand would commit the offence or Saina Devi would ensure the disappearance of evidence in the peculiar background of the case that the marriage had taken place between Parkash Chand and Rita Devi a few days ago. Nothing has been brought on record so as to persuade this Court to come to the conclusion that death of Rita Devi has been caused by Parkash Chand respondent. So on this ground also the prosecution case must also fail.
10. On the other hand, if the explanation given by the respondents in their statements under Section 313 Cr. P.C. appear to be more plausible as well as acceptable. So far Parkash Chand respondent's explanation is concerned, he has specifically stated that the witnesses have falsely deposed against him and when he left for his work at 7 AM in the morning, the deceased was hale and hearty, in the evening when he returned from his work, he was shocked to discover that his wife had died. His further explanation is that his marriage with Rita Devi was not liked by Milkhi Ram, who was un-happy on this ground and this respondent had expressed his suspicion against Mili Ram. Explanation of Tek Chand respondent is that Parkash Chand respondent is his elder brother had left for his work on 7 A. M., whereas he and his mother left at about 8.30 A.M. for jungle to graze their cattle and to work in the field. At such time Rita Devi was working in the kitchen. In the evening, after rain fall was over, when they returned they found number of persons in their kitchen when it was discovered that Rita Devi had died and somebody had burnt her body. Similar is the explanation of Saina Devi who had further gone on record to say that on enquiry from Rai Singh and police about her suspicion she had indicated her suspicion on Milkhi Ram (PW-5).
11. Prosecution evidence as discussed above and looking to the other attending circumstances, it would not be safe and proper to convict the respondents by accepting the submissions of the learned Additional Advocate General. No doubt, faced with this situation, Shri D.C. Pathik pointed out that some discrepancies and inconsistencies in the prosecution evidence do not in any manner either dilute or otherwise impair the extra-judicial confession which according to him was natural as well as spontaneous. It may not be out of place to mention that the trial Court on appreciation of evidence has rightly come to the conclusion in acquitting the respondents. In this context, it may further be not out of place to point out that it is by now well settled that where two views are possible on appreciation of evidence as in the present case, then the one favourable to the accused needs to be followed which otherwise seems to be correct approach because presumption is in favour of innocence of an accused and it is for the prosecution to rebut the same by leading reliable evidence. In this context reference may be made to the observations of the Hon'ble Apex Court made in Ramesh Babulal Doshi v. State of Gujarat, AIR 1996 SC 2035 : (1996 Cri LJ 2867) to the following effect:
"7. ... This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous "or demonstrably unsustainable. If the appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then and then only reappraise the evidence to arrive at its own conclusions. In keeping with the above principles we have therefore to first ascertain whether the findings of the trial Court arc sustainable or not."
When the judgment of the trial Court is tested on the principles laid down in this judgment, it would be seen that the findings, recorded by the trial Court call for no interference. Needless to reiterate that the view taken by the Court below is balanced based on proper appreciation of evidence and correct application of law, as such, there is no merit in this appeal.
12. As a result of the aforesaid discussion, the present appeal is devoid of any merit and it is dismissed accordingly.