Himachal Pradesh High Court
R/O Village Kurar vs State Of Himachal Pradesh on 8 March, 2022
Bench: Sabina, Satyen Vaidya
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 8th DAY OF MARCH, 2022
.
BEFORE
HON'BLE MS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CRIMINAL APPEAL No.546 of 2016
Between:-
R/O VILLAGE KURAR,
PARAS RAM SON OF TIRTH RAM,
P.O. GAHIGHAT, TEHSIL KASAULI,
P.S. PARWANOO, DISTRICT SOLAN,
H.P. PRESENTLY UNDERGOING HIS
SENTENCE IN MODEL CENTRAL
JAIL, KANDA, DISTRICT SHIMLA,
HIMACHAL PRADESH
.... APPELLANT
(BY MS. SHEETAL VYAS,
ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
....RESPONDENT
(BY MR. VIKRANT CHANDEL,
DEPUTY ADVOCATE GENERAL)
RESERVED ON : 3rd MARCH, 2022
DECIDED ON : 8th MARCH, 2022.
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2
This appeal coming on for hearing this day, Hon'ble Ms.
Justice Sabina, delivered the following:
.
JUDGMENT
Appellant has filed the appeal challenging the Order/Judgment dated 06/08.08.2016, passed by the trial Court, whereby, he has been convicted and sentenced as under:-
Section 302 Indian : Imprisonment for life and to pay a fine of Penal Code `20,000/-. In case of default of payment of fine, he shall further undergo rigorous imprisonment for six months.
Section 201 Indian : Rigorous imprisonment for three years and Penal Code to pay fine of `5000/-. In case of default of payment of fine, he shall further undergo simple imprisonment for six months.
2. Prosecution case was set in motion on the basis of the statement of complainant Satish Beri. Complainant got recorded his statement that he was having two wives. His one wife was residing in Parwanoo, whereas his other wife was residing in a farmhouse in Village Kurad. He had constructed a house in the name of his second wife Lajya Devi, in the year 2005 and the farmhouse was also in her name. Lajya Devi was residing with her daughter Kritika in the farm ::: Downloaded on - 08/03/2022 20:12:06 :::CIS 3 house. A septic tank had been constructed near the house in the year 2006. On 8th February, 2011, Lajya Devi, wife of the complainant .
informed him that a smell was emanating from the septic tank and when she had opened lid of the septic tank, she found that there was a big polythene bag in the tank. She had informed the police in this regard on 9th February, 2011. Police had reached the spot along with 'Safai Karamchari'. The polythene bag was pulled out from the septic tank. The said bag contained one 'loi' (shawl), shirt, pants, shoes, socks, and human bones. The said articles were taken in possession by the Police and photographs were also taken. It was the talk of the village that Beli Ram @ Vicky was having illicit relations with Kamla.
Beli Ram was working as a cook and belonged to village Karsog. Beli Ram was missing for the last 2½ years. So a suspicion was raised by the complainant that Beli Ram @ Vicky might have been killed by the sons of Kamla Devi and the dead body might have been thrown in the septic tank because the same has been constructed by Durga Dutt son of Kamla Devi.
3. On the basis of the statement of the complainant made on 16th February, 2011, a formal FIR No.23 was registered on 16 th February, 2011 at Police Station, Parwanoo, District Solan, under Section 302 and 201 IPC.
::: Downloaded on - 08/03/2022 20:12:06 :::CIS 44. After completion of investigation and necessary formalities, challan was presented against the appellant and Durga Dutt.
.
5. Charges were framed against the accused under Section 302, 201 read with Section 34 IPC by the trial Court. Accused did not plead guilty of the charges framed against them and claimed trial.
6. In order to prove its case, during trial, prosecution examined 24 witnesses.
7. After the close of prosecution evidence, accused when examined under Section 313 of the Code of Criminal Procedure, prayed that they had been falsely involved in this case.
8. Accused examined one witness in their defence.
9. Learned trial Court, vide impugned judgment dated 6.8.2016, ordered the acquittal of accused Durga Dutt, under Section 201 of the Indian Penal Code of the charges framed against him and conviction of appellant Paras Ram under Section 302 and 201 IPC.
Hence, the present appeal filed by appellant Paras Ram.
10. Ms. Sheetal Vyas, learned counsel for the appellant has submitted that the prosecution has miserably failed to prove its case.
There was unexplained delay in lodging the FIR. As per the prosecution story, murder had been committed in the year 2008. If that be so, there was no occasion for PW-4 Lajya Devi, to have found that foul smell was emanating from the septic tank in February, 2011. As ::: Downloaded on - 08/03/2022 20:12:06 :::CIS 5 per medical evidence on record, in case a dead body had been thrown in the septic tank in the year 2008, the same would have decomposed .
within 24-36 hours and would have emanated foul smell. Hence, there was no occasion for emanation of foul smell in February, 2011, in case a dead body had been thrown in the tank in the year 2008. PW-3 Rita Devi, wife of the appellant was not having cordial relations with the appellant and due to this reason she has falsely involved the appellant r to in this case. In her cross-examination PW-3 has stated that she had left the company of the appellant in January 2008. Hence, her presence in the house of the appellant on 15 th June, 2008 was belied.
In case PW-3 Rita Devi knew that appellant had committed the murder of Beli Ram, she should have immediately reported the matter to the police. Neither PW-3 Rita Devi, nor PW-5 Pat Ram and PW-6 Seema Devi, reported the matter to the police regarding commission of offence by the appellant and remained silent for more than 2½ years. Hence, it was evident that the witnesses had concocted a false story to falsely involve the appellant in this case. Appellant had no motive to commit murder of Beli Ram as the deceased was residing with the mother of the appellant for the last so many years. Rather the father of the appellant could have had a grievance against the deceased.
11. Mr. Vikrant Chandel, learned Deputy Advocate General, on the other hand, has opposed the appeal and has submitted that the ::: Downloaded on - 08/03/2022 20:12:06 :::CIS 6 prosecution had been successful in proving its case. From the evidence on record, it was duly established that the appellant had .
committed the murder of Beli Ram as he (deceased) was having illicit relations with his (appellant) mother.
12. It has been held by Hon'ble the Supreme Court in Krishnan v. State represented by inspector of Police, 2008(15) SCC, 430 as under:-
"15. Before adverting to the above-stated arguments advanced by the learned counsel for the parties, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the commission of the offences and the prosecution case entirely rests on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:-
(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;
(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human ::: Downloaded on - 08/03/2022 20:12:06 :::CIS 7 probability the crime was committed by the accused and none else; and
(iv) the circumstantial evidence in order to sustain .
conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
13. In the present case, FIR was registered at the instance of PW-1, Satish Beri. The said witness had deposed as per the contents of the FIR.
14. PW-4, Lajya Devi, wife of PW-1, has corroborated the testimony of PW-1. In addition to her statement recorded under Section 161 Cr.P.C., she deposed during trial that in the year 2008, severe foul smell started coming out from the bath room and it used to spread inside the house. Presuming that there was leakage in the sewerage, she started putting phenol balls in the bath room. On 7th February, 2011, while she was cutting bushes near the septic tank, she thought that the septic tank must be overflowing and then she opened the cover of the septic tank and noticed one polythene bag floating over the water inside the septic tank. She closed the lid and got scared. On 9th February 2011, her husband had informed the police that there was a floating object in the septic tank.
::: Downloaded on - 08/03/2022 20:12:06 :::CIS 815. Although PW-1 and PW-4 have deposed to the effect that they had discovered the polythene bag in the septic tank in February .
2011 as PW-4 had informed PW-1 that there was foul smell emanating from the septic tank, but the said part of their statements fails to inspire confidence to the effect that the lid of the septic tank had been opened as it was emanating foul smell due to the presence of human bones lying in the polythene bag. It is the prosecution story that the murder had been committed in June 2008. If that be so, the foul smell from the septic tank would have been noticed immediately after the dead body was thrown in the septic tank. PW-15 Dr. Rahul Gupta, in his cross-
examination has deposed that in a septic tank decomposition process is very fast and the human dead body may get bloated within 24-36 hours and as the soft tissues of the body will undergo liquefaction it would emit foul smell. PW-1 Satish Beri has not deposed to the effect that any foul smell was emanating from the septic tank since the year 2008. It appears that PW-4 Lajya Devi improved her version, while appearing in the witness-box, by saying that the foul smell had started emanating from the bath room in the year 2008. Rather she has tried to built up a case that the foul smell continued emanating from the Year 2008 onwards till the lid of the tank was opened. As per medical evidence, the body would have decomposed within days from its having been thrown in the septic tank. Obviously, after decomposition ::: Downloaded on - 08/03/2022 20:12:06 :::CIS 9 of the body there was no occasion for emanation of foul smell from the septic tank on account of the throwing of the dead body in the septic .
tank in the year 2008. In the case, the bag had been thrown in the septic tank in February, 2011 even then the articles in the bag would not have emitted foul smell. Hence, the version of PW-4 to the effect that on 7th February, 2011 the foul smell had been coming from the septic tank on account of the presence of the polythene bag which contained human bones appears to be false. It is not understandable as to why none from the neighbourhood complained about the emanation of foul smell in the area for a long time as suggested by PW-4 during trial.
16. The bones, which were recovered from the septic tank were sent for DNA examination. As per the report Ex.PX-1, mandible bone with teeth belonged to the biological offspring of Himi Devi and Deep Ram. A complete DNA profile also showed that the mandible bone with teeth belonged to a male. Thus, it can be said that the bones, which were recovered from the polythene bag, which had been taken out from the septic tank, belonged to the biological offspring of Himi Devi and Deep Ram.
17. Himi Devi had been examined as PW-17 and she deposed that Beli Ram was her son and he was residing with Kamla. Wife of Beli Ram, i.e., Nirmala Devi was residing with her daughters in their ::: Downloaded on - 08/03/2022 20:12:06 :::CIS 10 house, whereas, Beli Ram was residing with Kamla. Thus, it can be said that the human bones, which were recovered from the polythene .
lying in the septic tank near the house of PW-4 Lajya Devi, were of deceased Beli Ram @ Vicky.
18. The next question that requires consideration is as to whether appellant had committed the murder of Beli Ram @ Vicky. In this regard, the prosecution case mainly rests on the testimony of PW-3 Rita Devi.
19. to PW-3 Rita Devi deposed that she got married to appellant Paras Ram in the year 1999. Her mother-in-law, Kamla was residing with Beli Ram as his wife. Her father-in-law was residing in Jabli.
Kamla had left her husband. On 15th June, 2008, she had gone to the residence of Beli Ram and had inquired about her mother-in-law. Beli Ram told her that Kamla had quarrelled with him and had gone away.
Thereafter, Beli Ram had left, to look for Kamla. At about 2.30 a.m., Beli Ram returned home under the influence of liquor and was also carrying a bottle of liquor in his hand. Paras Ram was constructing kitchen and she was washing the utensils in the kitchen. Beli Ram and Paras Ram started quarreling with each other and went away. She sent her daughter to ascertain about the whereabouts of Beli Ram and Paras Ram. Her daughter informed her that Beli Ram and Paras Ram were taking liquor. She served food to her husband Paras Ram and ::: Downloaded on - 08/03/2022 20:12:06 :::CIS 11 her neighbour's daughter-in-law informed her that Beli Ram and Paras Ram were quarreling with each other. She sent her brother-in-law to .
intervene and stop their quarrel. Her brother-in-law Durga Ram told her that he would not intervene. Thereafter, Paras Ram came to her room and she noticed that buttons of his shirt were broken and his shirt was torn. Paras Ram took out a knife from the Alamirah and concealed the same in his clothes. She took away the knife and Paras Ram vowed that he would kill Vicky. In the meantime, Beli Ram came to their house and started abusing Paras Ram. Paras Ram slapped Beli Ram and as a result he fell down. Thereafter, Beli Ram went away.
Paras Ram hit Beli Ram with a wooden log on his head and as a result, Beli Ram fell down. Thereafter, she left for the house of her brother-in-
law and did not return home. She told her sister-in-law that Paras Ram and Beli Ram were quarreling. Her husband came to the house of her brother-in-law and his clothes were stained with blood. While she was standing with her sister-in-law, Paras Ram disclosed that he had finished Beli Ram. She also noticed blood on the hands of Paras Ram.
Paras Ram told his sister that she should not tell anyone about the incident. At that time her brother-in-law and children were also present.
Thereafter, Paras Ram and Durga Dutt went behind the house. Paras Ram had told her to clean the blood, which was lying on the floor. She went inside the room, but turned back as foul smell was coming from ::: Downloaded on - 08/03/2022 20:12:06 :::CIS 12 the room. Thereafter, her brother-in-law went to drop her sister-in-law at her parental house. In the evening when she inquired from her .
husband as to what they had done with Beli Ram, he threatened her with dire consequences. She lived in her in-laws house for about nine months and thereafter left for her parental house. She narrated the incident to Pat Ram and told him that she did not want to go to her in-laws house as she was scared of her husband. The said witness, in her cross-examination, deposed that she had left the company of Paras Ram in January 2008. Paras Ram had given severe beatings to her and thrown her out of the house. She admitted it as correct that she had taken a room on rent in village Datyar, after January, 2008.
20. Statement of PW-3, being unnatural, fails to inspire confidence. PW-3 in her cross-examination deposed that she had left the company of her husband in January, 2008. There is no explanation as to why she was present in the house of the appellant on 15 th June, 2008. Since PW-3 was not on good terms with her husband, she should have immediately informed the Police that her husband had told her that he had committed murder of Beli Ram. There is also no explanation as to why in the year 2011 she got recorded her statement with regard to incident, which had occurred on 15 th June, 2008. The conduct of PW-3 is most unnatural and the story put forth by her with regard to the incident appears to be an afterthought and a concocted ::: Downloaded on - 08/03/2022 20:12:06 :::CIS 13 story. In normal circumstances, she was expected to have immediately inform the police regarding the incident, especially when she was not .
having cordial relations with her husband as she has stated in her cross-examination that she had been shunted out of the house by the appellant after giving severe beatings to her.
21. Prosecution has also placed reliance on the testimony of PW-5 Pat Ram. The said witness has deposed that he was ward member of Rajpur ward of Jabli Panchayat for the last 6½ years.
Parents of PW-3 Rita Devi were residing at a distance of 4 kilometers from his house. In the year 2009, PW-3 had called him with regard to the dispute with her husband. PW-3 had told him that her husband wanted to kill her as he had also killed a person named Beli Ram @ Vicky on an earlier occasion. PW-3 had further told him that Beli Ram had been killed with a 'Danda'. He further stated that he had seen deceased Beli Ram about 2-2½ years prior to the year 2009.
22. It is not understandable as to why PW-5 did not inform the police about his conversation with PW-3. The said witness was a ward member and was expected to have informed the police about his conversation with PW-3. He has also alleged that he had recorded the conversation in his mobile. Hence, the statement of PW-5 Pat Ram, being unnatural, fails to inspire confidence.
::: Downloaded on - 08/03/2022 20:12:06 :::CIS 1423. Prosecution has also placed reliance on the testimony of PW-6 Seema Devi. The said witness deposed that Kamla Devi was .
residing with Beli Ram in a separate house. Accused persons belong to her village. Beli Ram was residing with Kamla Devi for 12/13 years prior to the year 2008. Father of accused was residing at Jabli and was not having cordial relations with Kamla Devi. She had not seen Beli Ram after the year 2008. Wife of Paras Ram had told her about 2 years back that her husband Paras Ram had killed Beli Ram. Durga Dutt and Paras Ram, had disposed of the dead body of Beli Ram. Wife of accused Paras Ram had further told her that he would kill her in case she disclosed to anybody about the killing of Beli Ram. She had told her to inform the police, but she told her that in case she told the said fact to police, he would kill her. Whenever, she inquired from Kamla about the whereabouts of Beli Ram, she told her that he was working in some Dhaba at Shoghi. In her cross-examination, she deposed that she had come to know about the killing of Beli Ram after 1-1½ years of the incident and her mother-in-law was present with her at that time.
24. Thus, the conduct of PW-6 is also most unnatural. The said witness never bothered to inform the police about the disclosure made to her by PW-3 Rita Devi. The said witness had no threat from the accused and could have informed the Police about the incident ::: Downloaded on - 08/03/2022 20:12:06 :::CIS 15 narrated to her by PW-3 Rita Devi. Hence, the testimony of this witness also fails to advance the prosecution story.
.
25. After going through the statements of material witnesses examined during trial as discussed above, we are of the opinion that the prosecution story is rendered doubtful. So far as PW-3 Rita Devi is concerned, she has not narrated the incident, which had taken place in the year 2008, to anybody and has deposed with regard to the commission of offence after the polythene bag containing human bones was recovered from the septic tank constructed near the house of PW-4 Lajya Devi. The conduct of PW-3 is most unnatural and as a result her statement is rendered doubtful. Moreover, as stated by PW-3, she had left the house of the appellant in January 2008 and the occurrence, which had allegedly taken place on 15 th June, 2008, stated by her, stands belied.
26. So far as PW-5 Pat Ram and PW-6 Seema Devi, are concerned, they have deposed about the incident narrated to them by PW-3 Rita Devi. The said witness also never bothered to immediately inform the Police regarding the incident. Their statements, being hear-say, fail to inspire confidence especially when the testimony of PW-3 Rita Devi herself is doubtful.
27. It is also surprising that as per the prosecution story Beli Ram @ Vicky had gone missing in the year 2008, but nobody had ::: Downloaded on - 08/03/2022 20:12:06 :::CIS 16 lodged any report in this regard. Neither Kamla, with whom he was allegedly residing, nor parents of Beli Ram @ Vicky or his first wife had .
lodged the report regarding him being missing. It has also come in evidence that Beli Ram was residing with Kamla for the last 12/13 years prior to the year 2008. Under these circumstances, it cannot be said that the appellant had any grudge to commit the murder of Beli Ram @ Vicky due to his relationship with his (appellant's) mother.
Since Beli Ram was residing with mother of the appellant for the last number of years, it can be presumed that the relationship of Kamla and Beli Ram had been duly accepted by her relatives.
28. It is a settled preposition of law that the prosecution has to prove its case beyond the shadow of reasonable doubt and has to complete the chain of circumstances leading to the inference of the guilt of the accused and negate the possibility of innocence of the accused. The circumstances have to be conclusive in nature excluding every possible hypothesis except the guilt of the accused. However, in the present case, the prosecution has failed to establish the chain of circumstances leading towards the guilt of the accused beyond the shadow of reasonable doubt. Rather, the possibility that somebody-
else might have committed the offence cannot be ruled out. Whenever there is doubt in the prosecution story, the benefit of the same has to be extended to the accused.
::: Downloaded on - 08/03/2022 20:12:06 :::CIS 1729. After carefully going through the evidence on record, we are of the opinion that the prosecution has failed to establish its case .
against the appellant beyond the shadow of reasonable doubt.
Accordingly, the appeal is allowed. Appellant is acquitted of the charges framed against him under Section 302 and 201 of the Indian Penal Code.
30. In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, appellant Paras Ram, is directed to furnish a personal bond in the sum of Rs.25,000/-, and a surety in the like amount, before the Registrar (Judicial) of this Court, which shall be effective for a period of six months, with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellant aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.
31. Release warrants be prepared accordingly.
(Sabina) Judge (Satyen Vaidya) Judge March 08, 2022 (ps) ::: Downloaded on - 08/03/2022 20:12:06 :::CIS