Dharam Pal vs State of Punjab

S.S. Dewan, J.

Dharam Pal appellant along with three other accused namely, Bimbla Devi, Assa Ram and Saraswati were brought to trial before the Court of Sessions at Ferozepore, for committing the murder of Subhash Chander. The learned Sessions Judge, Ferozepore, acquitted the aforesaid three accused of the charge. Dharam Pal stands convicted under Section 302, Indian Penal Code and has been sentenced to life imprisonment and a fine of Rs. 2,000/ or in default to undergo further rigorous imprisonment for six months. He appeals.

The victim of the crime is Subhash Chander son of Dharam Pal appellant. The prosecution case herein has no eyewitness of the alleged occurrence and rests entirely on circumstantial evidence. It emerges there from that Angoori Devi complainant was married to Dharam Pal accused about 15 years ago and out of this wedlock, Subhash Chander since deceased was born. Dharam Pal and his parents used to maltreat Angoori Devi on account of less dowry having been brought by her and ultimately when Subhash Chander was of three years old she was driven out of the house by Dharam Pal after giving her beating and since then she had been residing with her parents. Later on Dharam Pal was remarried with Bimbla Devi illegally and on a criminal complaint filed by Angoori Devi against Dharam Pal and Bimbla Devi along with their respective fathers, were convicted. Angoori Devi also filed an application for maintenance against Dharam Pal. On appeal before the Court of Sessions, the conviction and sentence of the accused in that case was upheld and feeling aggrieved by that order, the accused filed a revision in the High Court and the same was also dismissed. It is said that during the pendency of the criminal case, the accused used to threaten Angoori Devi with death or to finish Subhash Chander in case she did not patch up the matter with them. During the days of this occurrence, Subhash Chander since deceased used to reside with Saraswati Devi accused. On 3.11.1984 Hazari Lal and Chanan Ram came to Angoori Devi and informed her that Subhash Chander had been done to death by the accused. Angoori Devi went to the house of the accused to enquire about it and they told her that the dead body of Subhash Chander was lying in the cremation ground. Angoori Devi then reported the matter to the Station House Officer of Police Station City, Abohar regarding the murder of Subhash Chander. When the case was not registered on her application, she contacted the Executive Magistrate, Abohar for getting the dead body of Subhash Chander recovered and subjecting it to post mortem examination. Under the orders of the Executive Magistrate, the dead body of Subhash Chander was dug out from the cremation ground and later on subjected to postmortem examination consequent upon the order dated 11.11.1984 passed by the Judicial Magistrate, Ist Class, Fazilka. Gurdev Singh Assistant Sub Inspector held inquest and sent the dead body to the mortuary for autopsy. On receipt of the post mortem report, the case was registered at the Police Station City, Abohar.

Dr. Partap Singh PW.3 conducted autopsy on the dead body of Subhash Chander on 12th November, 1984 at 11 a.m. and found the following :

"The body was moderately built and nourished. There was green discolouration of the skin over the abdominal wall the iliac fosse. The skin was wrinkled and peeling off at places. The abdomen was distended. The eye balls were sunken. The mouth was half open. The face was softening and had filed white colour. Rigor mortis had passed off. There was no external mark of injury on the body. The stomach contained about 50 CC of semidigested food material. Dark red irregular patches were seen in the posterior wall and interior wall as a result of petrification. The blobs were present on inner surface. The small intestine was inflated due to gases. The postmortem was performed within 7 to 12 days of the death.

Both the lungs were soft and caseous bullae was present. There was clotted blood in the right side of the chest cavity. Both the lungs were congested. There was presence of caseous material in the upper and the middle lobe of both the lungs. There was cavity 3 cms. x 2 cms on the upper lobe of the right lung. Clotted blood was present in the cavity of the lung. There was another cavity on the right lung in its middle base.

The viscera of the deceased was sent to the Chemical Examiner to determine the cause of the death."

Death was opined to be due to poisoning by insecticide of choloro compound and alcohol, Sub Inspector Joginder Singh arrested the accused and after necessary investigation, the accused were challaned and committed.

To connect the accused with the crime, the prosecution examined as many as eleven witnesses. Hazari Lal PW.4 deposed to have informed Angoori Devi regarding the death of her son Subhash Chander. Angoori Devi P.W.5 is the first informant, Shiv Lal PW.7 deposed that in his presence Dharam Pal and his wife Bimbla Devi accused offered tea to Subhash Chander who refused to take it but on their persistence he took it and that when Subhash Chander represented that his mouth had gone bitter after taking tea, Dharam Pal got his Saltish biscuits and that on the following morning he (witness) learnt about the death of Subhash Chander. Jagir Singh PW8 deposed that Dharam Pal confessed his guilt before him. Dr. Tarlok Singh PW9 deposed that on examination of the viscera, choloro compound was found in the stomach, spleen, kidney, liver and the viscera of Subhash Chander deceased. Sub Inspector Joginder Singh PW.11 investigated the case. When examined under Section 313, Cr.P.C., the accused denied the prosecution allegations and pleaded false implication in the case. Dr. A.R. Talwar and Hari Chand were examined in defence.

As it is manifest from the above, the case against Dharam Pal appellant is sought to be rested only on certain isolated circumstances. There is no eyewitness of the occurrence and it is well settled that in these circumstances, the chain of evidence must be so complete and conclusive as to lead to on other hypothesis except the guilt of the accused. This is indeed far from being the case here.

Nobody except Hazari Lal PW.4 claims to have seen some persons returning from the cremation ground after burying Subhash Chander prior to 7 a.m., on 3rd November, 1984. He accompanied by Chanan Ram informed Angoori Devi about the death of her son Subhash Chander. The statement of Hazari Lal PW4 does not inspire confidence because he is categorical in his assertion that burial does not take place between the sun set and the sun rise and the evidence of this witness was recorded by the Police after about four months of the occurrence. Regarding the time of death of Subhash Chander, the statements of Hazari Lal PW.4 and Shiv Lal PW.7 are at variance. According to Hazari Lal, he had seen some persons returning from the cremation ground after burying the dead body of Subhash Chander at about 7 a.m. on 3rd November, 1984 but according to Shiv Lal PW he went to the house of the appellant on the same day at about 12 noon to see T.V. in connection with the murder of Smt. Indira Gandhi and found Subhash Chander present there. This witness had again seen Subhash Chander along with his father Dharam Pal at about 4.30 p.m. near the shop of one Hari Ram. There is thus no evidence on the record to show that Subhash Chander was killed by the appellant on 3.11.1984 and the inference on his unnatural death is also difficult to be raised in the circumstances of the case.

The case being one entirely of circumstantial evidence and lacking direct ocular testimony, the issue of motive, therefore, assumes some significance. Here, what meets the eye is the virtual lack of any substantial evidence on this point. Once, the extrajudicial confession allegedly made by the appellant before Jagir Singh PW8 having been rejected by the trial Court, there is nothing worthwhile to sustain the theory propounded by Angoori Devi, wife of the appellant that when she was turned out by the appellant from his house she filed a criminal case under Section 494 Indian Penal Code, against the appellant for having married Bimla Devi during the subsistence of his first marriage and that having been convicted in that case, the appellant wanted her to patch up with him or else he would kill her or her son Subhash Chander. No evidence worth the name has been produced by Angoori Devi on the record to show that when she was threatened by the appellant to kill her or her son Subhash Chander, either she moved for security proceedings against him or took any action to save the life of her son. It is significant to note that when she was turned out by appellant from his house. Subhash Chander was about three years old. It is an admitted fact that Angoori Devi never visited the house of the appellant to meet her son prior to this occurrence nor she moved any Court to obtain the custody of her son. On the present record, there appears to be no option but to hold that the prosecution has singularly failed to prove and perhaps even to suggest any plausible motive for the crime sought to be attributed to the appellant.

The prosecution evidence with regard to the participation of three other accused was rejected by the trial Court as unreliable. Now, if the evidence of the prosecution witnesses was disbelieved by the trial Court in regard to the participation of three acquitted accused. It is difficult to see how it can be accepted so far as the part assigned to the appellant is concerned. The conviction of the appellant is founded solely on the evidence of trumped up witnesses whose testimony could not be said to inspire confidence in the mind of the Court. We do not find if safe to convict the appellant on the basis of the circumstantial evidence discussed above.

The prosecution evidence (after excluding the extrajudicial confession and the alleged recovery of the dead body from the cremation ground) does not carry this case beyond causing a mere suspicion against the appellant. As has been authoritatively said, between mere suspicion and legal proof, there is a wide gap which has to be traversed by concrete legal evidence, far from there being such evidence, we are of the view that indeed there is nothing worth the name to bridge the gap existing there. The prosecution must be held to fail to bring the charge home against the appellant. The appeal is hereby accepted and the conviction and sentence of the appellant are set aside and he is acquitted of the charge.