Attar Singh vs State of H.P.

Bhawani Singh, J.—By this appeal, the accused assails the judgment of the Sessions Judge, Shimla, in Sessions Trial No. l-S/7 of 1986 decided on 20-8-1986. By this judgment, the learned trial Judge convicted the accused u/s 302/380 of the Indian Penal Code and sentenced him to imprisonment for life u/s 302 and imprisonment for three years u/s 380 of the I.P.C. and a fine of Rs. 3,000/- and in default of payment of fine to further suffer rigorous imprisonment for one year. Fine, when recovered, has been ordered to be paid to the legal heirs of the deceased. A direction that both the sentences will run concurrently has also been issued.

The facts, in brief, are that there is an old lady Smt. Reshmo. She is possessed of some moveable and immovable property in her village Hari Nagar in the form of land and jewellery (about two Tolas of gold). The father of the accused, Sh. Hira Singh, is the son of her Sister.

This lady lives alone in her house. She is visited, quite often, by the accused or his relations. She is issueless. She has a property dispute with Pano Ram and or his wife. Some of the landed property is stated to be in the possession of Pano Ram (P. W-l) and his family. A suit for possession, filed by her, was decreed by the Sub-Judge (I), Shimla in her favour and Pano Ram (P.W-l) has filed an appeal against the same in the court of the District Judge, Shimla, wherein a stay order was obtained on 20-5-1985 on the condition that Smt. Reshmo would be entitled to get Rs. 3,000/- as manse profits per annum till the final disposal of the appeal.

Smt. Reshmo, it appears is unable to look after the Court case herself, may be due to age or distance from her place of living to the Court or due to her petty day to day occupation by seeing Biris and Cigarettes in the village. Therefore, she executed a general power of attorney on 17-9-1985 in favour of the accused to look after those cases and it is in evidence that even before this he had visited the office of her Advocate, Shri Ajay Sood, with the deceased.

According to her will (Ex. P.W-12/A), the cause of execution of the will is age, failing health and being issueless. By this will, she gave her property, after her death, to avoid any dispute about the same to her sister''s son, Shri Hira Singh, one-half share, and Attar Singh accused, one half share, as they are looking after her since long. This will further mentions that larger part of the property has been grabbed by Shri Pano Ram (P.W.I) and the members of his family and makes mention of the pending suit decreed in her favour and the appeal pending before the District Judge, Shimla. This will entitles, in the event of the success of the case, Shri Hira Singh and Attar Singh (accused) to get possession of the property by filing execution petition. During her life time they were to look after her and after her death, the last rites were to be performed by them. Hira Singh as well as Attar Singh (accused) was appointed as executors of the same. The Will was duly executed in the presence of two witnesses by Deed-writer Shri K.R. Chaudhary, Shimla, and registered before the Sub-Registrar on 12-9-1985. It is in evidence that the accused stayed with Smt. Reshmu on 24-9-1985 after his return from Shimla when she was not found in the house in the morning. Before going to sleep, the house was locked. On 25-9-1985, she is stated to have been murdered by fire lit to her body after pouring kerosene oil on her body and injuries caused to her by ''Chakki''.

The matter is reported to the Police by the accused himself.

In this information dated 26-9-1985 at 6.05 P.M. the accused, inter-alia, states that the deceased, who is the real sister of his grandmother, is aged about 64/65; litigation about land dispute is going on for the last about 20/21 years between the deceased and Pannu Ram, resident of the same village, the date of hearing of the case regarding house dispute with Pannu Ram was fixed on 27-9-1985 in the lower Court. The deceased told him and his father Hira Singh that she had become old and unable to walk and, therefore, they (accused and his father) should defend her case and that she would transfer her property in their name by way of a will. On 17-9-1985, the deceased executed a will of her property in his name and in the name of his father in the court of Tehsildar, Shimla, and on the same day, she also executed a general Power of Attorney in his favour. He had gone to meet her on 24-9-1985 at about 12/1 p.m., but she was not at her house and after locating her in the bazar, including inquiries in the office of Shri Ajay Kumar Sood, Advocate, he went back to her house where she was found cooking her meals in the kitchen. They both look meals and went to bed at about 10/10.30 p. m. the deceased slept on the charpai while he slept on the bed spread on the floor. In the morning of 25-9-1985 the deceased might have gone to urinate outside and while coming back into the room, she might not have bolted the door from inside. At about 4 or 4.30 A. m., he heard cities of the deceased and after removing the quilt from his face, he saw the deceased getting up from her bed and her body and bed were burning. She was crying loudly "bachao-bachao". In the light of fire, he saw five persons standing there; smell of kerosene oil was coming out. These five persons might have burnt the deceased by sprinkling kerosene oil on her body. On seeing him getting up, one of the five persons, who was having a beard, put his foot on his Chest and pressed him. He had a revolver in his hand. He also threatened to kill him in case he raised any alarm. One of them picked up a Chaki pather (stone), which was lying there in the room, and struck the same three/four times on the head of the deceased as a result of which she died there and then. Thereafter one person called them out. He recognized the voice which appeared to be that of Pannu Ram. All the five persons left the room. His bed also caught fire. He got up and extinguished the fire of both the beds with his hands and water, while extinguishing the fire, his right arm anterior to the elbow and exterior part of his left hand fingers had also burnt. His khakhi terry cot shirt also burnt from right arm. Out of those five persons, he could identify only that person who having a beard, in case he was shown to him. All these persons were young. He applied mustard oil from the bottle lying in the chala on the burnt portion of his arm and went towards the cemetery side through the path leading from the school. He remained in a nail ah ahead of the cemetery up to about 7.30 p.m. and then went to his house at Annandale where he reached at about 9.30/10 p. m. when all the members of his family had gone to bed. In the morning he narrated this incident at about 10.30 a. m. to his parents and wife. His father had applied blue colour medicine, which was lying in the house, on the burnt portion of the arm and hand. This information forms the first information Report in this case and the police started the investigation.

Vide application (Ex. D.2) dated 28-9-1985, the police applied for the police remand of the accused. In this application, the police mention that the house of the deceased, when visited, was found locked. The Investigating Officer got suspicious because while lodging the First Information Report, the accused had stated that he left the place after closing the door but as the same was found locked on the spot, he got suspicious and the accused having failed to answer satisfactorily, and it being night time having no lighting arrangement for further proceedings for going on the spot, officials were deputed to guard the place of occurrence and he himself returned to the police station. The accused was directed to come to the police station on 27-9-1985 at 9 a. m., which he did, and on interrogation he confessed his guilt and told that he had wrongly got registered the case. In fact, it was he who had done it. On this, the accused was arrested u/s 41(1) of the Code of Criminal Procedure. On 27-9-1985, at 12.15 p. m., in the presence of witnesses a disclosure statement regarding the recovery of keys u/s 27 of the Evidence Act was made and recorded and as a consequence thereof, keys were recovered and taken into possession.

Now, the motive part of the case can be examined to see whether there could be the motive, as asserted by the prosecution, for the accused to kill the deceased. Although proof of motive may not be an essential ingredient to be proved by the prosecution but in this case, motive is the sole basis on which the edifice of the prosecution case rests. It is the source where-from the prosecution story emerges. In this connection, Shri M.S. Guleria, learned Assistant Advocate General, appearing for the State, contends that the accused wanted to come in possession of the property of the deceased at the earliest without waiting for the death of the deceased as by that time the accused was anticipating the change of mind on the part of the deceased and execute some other will relating to her property. Such a motive on the part of the accused cannot be reasonably and possibly inferred. The relationship of the accused and his father with the deceased is well known. They had been visiting the deceased regularly and looking after her. The accused had been looking after her cases as well. This aspect is clear from the fact that the deceased executed the will (Ex. P. W. 12/A) in favour of the accused and his father, Shri Hira Singh. This document is quite comprehensive, relevant part of which has already been described above, and shows that the relationships between the deceased and the accused were affectionate and lasting. She used to call him �Beta-Batch'' as is clear even from the statements of the prosecution witnesses-Miss Sunita (P. W. 6) and Shri Banarasi Dass (P.W. 9).

In addition to this will, the deceased had executed General Power of Attorney dated 12-9-1985 in favour of the accused authorizing him to look after her cases pending in the courts and take all steps relating thereto. In these circumstances, it is absolutely impossible to hold that the accused wanted to hasten the acquisition of her property by killing her. Therefore, in: these circumstances, it can be safely said that there was no motive on the part of the accused to do away with the life of the deceased as the prosecution asserts.

The next aspect of the case relates to the number of recoveries made by the police in connection with this case. First is the recovery of the keys of the lock with which the house of the deceased is alleged to have been locked by the accused after the commission of the offence. The case of the prosecution is that the accused made a statement that after locking the house in question, he had kept the keys hidden in a hole in a wall and the same were recovered at his instance. This recovery is fake and it does not inspire confidence because there was no cause for the accused to conceal the keys, as alleged by the prosecution, when he left the house after closing it in the morning. The accused in his examination u/s 313 of the Code of Criminal Procedure states that he was pressurized by the police to open the lock. In addition to this, Shri Pannu Ram (P.W. l) also states that the accused was in custody at that time on 27-9-1985 and he found that the house of the deceased was in locked condition at that time. The accused opened the house of the deceased. In his cross-examination, he denies the suggestion that no lock was opened by the accused with the keys in his presence. He further states that the keys were with the accused and it was represented that these were recovered from the accused. Shri Surender Kumar (P. W. 3) supports this fact when he says that the accused was having the keys with which the lock (Ex. P. 14) was opened and he opened the lock. The witness along with the police officials entered the room. In his cross-examination, this witness further states that the accused gave keys to the police on 27-9-1985 and thereafter the lock was opened. This happened on the spot at Harinagar. All these facts show that the house was locked by the accused and the keys were with him; so this recovery is not, at all, genuine.

Now, coming to the recovery of ornaments, it appears that there was no reason for the accused to have taken away these ornaments and then concealing them at a place from where they are stated to have been recovered by the police at his instance. These are only a few ornaments weighing hardly about two to as of gold valuing less than Rs. 3000/-during those days while leaving currency notes and coins valuing more than Rs. 3000/-.

Shri Pannu Ram (P. W. 1) in his cross-examination states that on 27-9-1985 the house of the deceased was searched; the police told him that Rs. 2700j-were recovered from the house of the deceased besides ornaments which have been described earlier. This appears to be natural and correct version because it is in evidence that after this incident the accused locked the house and left immediately. In case he wanted to take valuables and had that much time, he could take away the cash also. It can therefore, be safely concluded that on search of the premises, the police recovered not only cash as described in Ex. P. W3/B but also ornaments as given in Ex. P. W. 1/G and the recording of the statement of the accused and consequential recovery of ornaments are, therefore, baseless.

In view of this finding, the identification of the ornaments by Shrimati Dashodha (P. W. 2) is of no significance. Even otherwise, the manner and form in which the identification was conducted does not evoke any reliability. She appears to have seen the deceased wearing these ornaments at one or two occasions in the past and, therefore, it cannot be satisfactorily said that she could recognize them when mixed with other ornaments at the time of identification. In the alternative, if she did so, it was not something showing clear and satisfactory evidence as to the identification because the ornaments of the deceased were quite old and were easily decipherable from those brought from the bazar for the purpose of identification.

Shri M.G. Chitkara, learned Counsel appearing for the accused, has very strenuously contended that the investigation in this case is thoroughly faulty and malaise. It is asserted by him that the police has engineered and initiated his case against the accused at the instance of Pannu Ram (P. W. 1) and his family. Elaborating his submissions, it is urged, that there is no dispute that Pannu Ram (P. W. 1) has grabbed much of the property of the deceased and is in possession thereof despite a decree in her favour by the subordinate court. The matter at this stage, the learned Counsel contends, is pending in the court of District Judge, Shimla, where this witness has obtained a stay order subject to payment of Rs. 3000/-by way of manse-profits every year. Litigation is going on between the parties for the last many years and the deceased was afraid of Pannu Ram. That is why she sought shelter and assistance of the accused and his family. It is further asserted that Pannu Ram (P. W. 1) is a rich man and deals in opium and charas for the last many years and due to his actions, no is in "Bestabey" of the police record. The accused in his statement u/s 313 of the Code of Criminal Procedure also states that he is a poor man; Pannu Ram has threatened that he and his father would be shot dead and that this case had been made against him at the instance of Pannu Ram who deals in opium and charas. The name of Shri Pannu Ram (P. W. 1) was disclosed by the accused in his information to the police.

Perusal of the statement of Pannu Ram (P. W.l) shows that he knows about the relationship of the accused with the deceased and the execution of the will in favour of the accused and his father. He admits his litigation with the deceased and that the same was decided in her favour and that the appeal against the same is pending before the District Judge and that the accused used to accompany the lady in connection with that. He has been joined by the police in the investigation of this case and is a witness to all the essential recoveries and facts in this case along with Surender Kumar (P. W. 3). This witness has also been joined in the investigation and he states that he knows Pannu Ram (P. W. 1) since long with whom he has relations since long and that Pannu Ram is a rich man and dealing with opium and charas. He further states that his father had litigation with one Roshan Lal in which Pannu Ram appeared as their witness. He also admits that a case u/s 325 of the Indian Penal Code was registered against him at Boileauganj Police Station in which Pannu Ram (P. W. 1) stood surety for him in the year 1981 and appeared as a witness.

Shri Banarasi Dass (P. W. 9) also states that he was living in Hari Nagar for the last 20 years. He does not go to the house of Pannu Ram (P. W. 1) as some misdeeds are committed in the house of Pannu Ram. By misdeeds, he means that Pannu Ram deals in Opium and Charas.

The inclusion of these persons in the investigation of this case by the police, more particularly, when Pannu Ram (P. W 1) was named by the accused in his earliest information to the police as the person at whose instance the deceased was alleged to have been killed, is strange. Rather it can be concluded that, Pannu Ram (P. W. 1) in order to save himself it appears, assured the police of complete help and support in the investigation of this case and succeeded in wreaking vengeance against the accused for not only naming him responsible for the murder of the -, deceased but also eliminated him from pursuing the pending court cases and acquisition of the property of the deceased. No reason can be ascertained as to why the police took them Pannu Ram (P. W. 1) and Surender Kumar (P. W. 3)-to Annandale, a far off place for effecting the recovery of ornaments when local witnesses could have been easily associated to make it at least look fair and proper. Same is the case with respect to other recoveries at the house of the deceased where there are number of houses situate nearby.

Lastly, conduct part of the accused needs to be examined as much stress has been laid by the prosecution on this aspect. It is asserted that the conduct of the accused after the commission of the offence was such that the only inference which can be drawn is that the offence has been committed by him. In this connection, it is submitted that instead of reporting the matter to the police, the accused went first to his house, then to the medico shop of Ravi Kant (P. W. 7) on 25-9-1985 at about 8 a. m. and purchased Burnol tube for application on the burns. On being asked as to the cause of the same, he falsely explained that the burns were due to falling of ghee. The statement of this witness does not inspire confidence because at this time the accused was at his residence at Annandale and this place is situate at a distance of more than 10 km and before reaching the road a long steep climb has to be covered. Secondly, it is not possible to remember the dress of anyone at such a time as has been stated by this witness. It is clear from his statement that the accused was shown to him by the police on 5-10-1985. Further, the accused is stated to have gone to Sairi and visited a dispensary. There, he was treated by Smt. Raj Kumari (P. W. 4). To her, the accused explained that the burns were due to the oil falling from a burning stove. The register of the dispensary, when seen, creates doubts as to the visit and treatment of the accused at this place although the prosecution has made an effort to explain the mistakes relating to the entries, however, as such mistakes cannot normally happen, therefore, no assistance can be derived out of the same. (The entry which allegedly pertains to the accused is 533 followed by 527 and 528 and so on. This entry is then scored off). His visit to this dispensary, as asserted by the prosecution,'' is further eliminated by Shrimati Nirmala Devi (P. W. 5) when she states that she could not say whether the accused took lunch in her hotel or not as so many persons take meal in the hotel and she stated this fact to the police. This witness has been declared hostile on this statement. However, she states in her cross-examination by the Public Prosecutor that: was examined by the police. I did not state before the police that accused who was in custody and whose name is Attar Singh had come in the hotel at about 1 P. M. on 25-9-1985 and took meals.''" Her statement, recorded by the police to the contrary, shows that the police had wrongly recorded her statement against the accused; it appears, to support this version that the accused had visited Sairi. The conclusions drawn by the trial court as to the conduct of the accused having given false explanation as to the burns on his arms are, therefore, patently wrong. The accused has admitted that while extinguishing the fire, he sustained burn injuries and he had applied mustard oil to the same from a bottle at the house of the deceased and then his father had applied blue colour medicine which was lying in the house. This appears rather natural and, if this is so, there was no necessity of going to the medico shop of Ravi Kant (P.W. 7) at 8 a. m. for the purchase of Burnol and then to Sairi to seek medical aid from Shrimati Raj Kumari (P.W. 4) at Primary Health Centre, a place at a distance of more than 25 km rather than coming four furlongs to have medical facility at proper Shimla where Medical College, District Level Hospital and large number of local medical Practitioners are available. The story set-up by the prosecution on this aspect cannot be possibly and reasonably believed.

The prosecution further alleges that the conduct of the accused in not lodging the First Information Report promptly on the commission of the offence on 25-9-1985 indicates his faulty conduct subsequent to the commission of the offence. On this account as well, it asserts, the culpability of the accused in the commission of the offence can be sustained. This proposition of the prosecution cannot be accepted looking to the manner and method of investigation and the recoveries brought in to rope in the accused in the commission of this offence, as already discussed above. The accused is an outsider at the place of occurrence in the eye of many more particularly, Pannu Ram (P.W. 1), Surender Kumar (P. W. 3) and Ors.. He is a person a non grate at that place. As the accused had been a relation of the deceased and was assisting her in the litigation against Pannu Ram (P.W. 1) and was to acquire the property of the deceased in future by virtue of her will, execution of which was known to all of them coupled with the facts that the assailants, many in number, came into the house of the deceased and started the act of killing her and on showing protest by the accused, one of them put his leg on the chest of the accused and threatened with dire consequences in case he raised hue and cry. In such a situation, it can be said that the accused got terrified and immediately thereafter left the place, through a place not commonly frequented by people by concealing himself, obviously toward off any possible attack on himself before reaching his house at Annandale on 25-9-1985 at about 9.30/10 p. m. On the next morning he is found in a perplexed condition of mind by his father (D.W. 2). On being asked as to why he had not gone to the police station, the accused told him that out of fear from Pannu Ram etc., he could not go to the police station. Further, he thought that he should inform police station Boileauganj, thinking it to be the nearest police station from the place of occurrence. He was asked by the police of police station Boileauganj to go to police station Dhalli, situate at a distant place, where they reached at about 4 p. m. on that very day.

Shri Hira Singh (D. W. 2) states that the accused was given beatings by the police inside the police station and he heard his cries. He has 3/1/2 big has of land, double storied house out of which four or five rooms had been rented out. He is a pensioner and is Up-Vaid in Ayurvedic. The accused is married and has three children and is an employee in the water Pollution Board.

Sarju Devi is the God-sister of Pannu Ram and they have good relations and there is thick abadi near his house.

In the circumstances described above, it cannot be con clouded reasonably and genuinely that the delay in lodging the First Information Report by the accused reflects adversely on his conduct. The delay has been reasonably explained.

There is no eye witness to the occurrence. The whole case depends upon the circumstantial evidence. Principles have been clearly laid down in numerous judicial pronouncements. It is relevant to quote Sharad Birdhichand Sarda Vs. State of Maharashtra, , wherein it has been observed as under:

Aclose analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ''must or should'' and not ''may be'' established. There is not only a grammatical but a legal distinction between ''may be proved'' and ''must be or should be proved'' as was held by this Court in Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra, where the following observations were made: "certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between ''may be'' and ''must be'' is long and divides vague conjectures from sure conclusions".

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

(3) The circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

Further, in Prem Thakur Vs. State of Punjab, Chief Justice Y.V. Chandrachud, speaking for the Court, observed in para-11 as under:

The High Court could not but be aware of the principle that in a case which depends wholly upon circumstantial evidence, the circumstances must be of such a nature as to be capable of supporting the exclusive hypothesis that the accused is quality of the crime of which he is charged. That is to say, the circumstances relied upon as establishing the involvement of the accused in the crime must clinch the issue of guilt.

Keeping these principles in mind and adverting to the case in hand, the prosecution has not been able to establish the circumstances justifying the conclusion that the offence was committed by the accused. Motive on the part of the accused, set-up by the prosecution, has failed, so has the recoveries made during the course of investigation. The conduct attributed to the accused, including false explanation given for sustaining the burns, has also dashed to the ground. It remains a matter of mystery as to how all this had happened. However the facts and evidence brought on the record of this case indicate that the accused is not responsible for the commission of the crime.

The result is there is force in this appeal; the same is allowed. The judgment of conviction and sentence passed by the learned Sessions Judge Shimla, are hereby set-aside and the accused is acquitted of the charge. He is stated to be in jail. He is set at liberty forthwith.