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Judgment
Bhawani Singh, J.—These two appeals arise out of the same case. Criminal Appeal No. 470 of 1988 has been filed by the State of Himachal Pradesh for the enhancement of the sentence whereas Criminal Appeal No. 343 of 1988 has been filed by the accused against their conviction. Both of them are being taken up together for decision.
These appeals are directed against the judgment of Sessions Judge, Kullu, in Sessions Trial No. 21 of 1987 whereby the accused have been convicted u/s 302 read with Section 34 of the Indian Penal Code and sentenced to imprisonment for life and a fine of rupees ten thousand. Nand Singh Jhalla has also been convicted u/s 27 of the Indian Arms Act and sentenced to undergo rigorous imprisonment for five years.
The prosecution case is that accused Nand Singh Jhalla (hereafter ''accused'') belongs to the State of Rajasthan and he married co-accused Lata Swaran (hereafter ''co-accused''), daughter of Prem Kaur, deceased, and started living as ''Ghar Jawain'' of the deceased. The deceased was the second wife of late Sardar Kuldip Singh, who predeceased her. She had sufficient movable and immovable property. On 21 -9-1977 she transferred her entire property in favour of Jatinder, minor son of the accused. According to the prosecution, the accused wanted to have this property in his name and her refusal caused frequent quarrels between them. Some landed property was purchased by the deceased in the name of the co-accused which was sold by the co-accused on the active persuasion of the accused. The money so realised was wasted. Further, the deceased purchased the concern known as "Kerala Tyres" on 6-11-1975. She engaged her nephew Chandu Lal to run this business. In the year 1981, she handed over this concern to the accused to be looked after by him. During this time, the accused forged the signatures of Chandu Lal and raised a loan of Rs. 15,000/- from the United Commercial Bank with the result that a suit had to be instituted for the dispossession of the accused. The accused, on the night intervening 30/31-8-1981, set fire to this concern. Criminal proceedings, alleging forgery and fraud, were initiated against the accused in the Court of Additional Chief Judicial Magistrate, Kullu, which ended in compromise. He was convicted u/s 436 of the Indian Penal Code and was sentenced to imprisonment of one year in addition to a fine of Rs. 1000/- for setting fire to the concerned property. From this kind of conduct of the accused, the deceased did not like to transfer her property in his name. On 25-3-1987, she executed another will (Ex. DK) in favour of Jatinder Jhalla, Shakunt Jhalla and Chand Jhalla, sons and daughter of the accused, granddaughter Thakeri alias Asha and Budh Ram, Dhani Ram, Dayalu Ram, Rewat Ram Chandu Lal, brothers, giving them property mentioned in the will. This enraged the accused and they planned to do away with her life . Accordingly, on 17-4-1987, when the deceased, accused Nand Singh Jhalla and co-accused Lata Swaran were alone in her drawing room, she was shot-dead by Nand Singh Jhalla with her licensed gun. Ashok Kumar (P. W. 3) and Gummat Ram (P.W. 4) were living in a room at a short distance from the place of occurrence. On hearing the gun shot, Ashok Kumar (P.W.3) came to the drawing room and while so coming he noticed the accused holding the gun in his hand. The accused immediately threw the gun down where it was ultimately located by the police during the investigation.
4.The First Information Report (Ex. PB) was recorded by Lal Singh (PW. 11) at 11.05 p.m. at the instance of Ashok Kumar (P.W. 3). The police visited the spot and started the investigation wherein Gumat Ram was (P.W. 4) also associated. The door of the drawing room was opened and the accused were found sitting on. Takhat Posh while Smt. Prem Kaur, deceased, was lying dead on the sofa. Private Photographer Vijay Kamboj (P.W. 6) was sent for and on arrival he photographed the dead body as well as the gun. Inquest report (Ex. PR-2) and rough site plan of the drawing room (Ex. PBB) were prepared. The gun (Ex. P. 7), lying on the College Road, was taken into possession and site-plan (Ex. PCC) was also prepared. Pellets (Ex. P-1 to Ex. P-5), Cork (Ex. P. 6) and spent-up cartridges (Ex. P-8 and Ex. P. 9) were also recovered by separate memos. Blood stained articles like seats, sofa, carpet, blood stained wooden pieces and earth from the wall and ceiling, blood stained shirt and pyjama of the accused, letter (Ex. P. 6) from the pocket of the shirt of the accused, golden ornaments worn by the deceased, licence (Ex. PG) of the gun will and revocation deed were also taken into possession vide recovery memos (Ex. PH to Ex. PQ). The police also recorded the statement of witnesses. The dead body of the deceased was subjected to postmortem examination by Doctor Roshan Lal (P.W. 5) and, vide the said report (Ex.PR), he reported that the deceased had died due to injury to brain, shock and hemorrhage as a result of gunshot injury and that the probable time between injury and death was instantaneous and duration between death and postmortem examination was about 24 to 48 hours. The police also took into possession the clothes of the deceased and three pellets (Ex. P. 12 to Ex. P.14), removed from the neck of the deceased, and they were wrapped and duly sealed separately like other articles. The gun, pellets and spentup cartridges etc. were sent to the Director of Forensic Science Laboratory, Chandigarh, and the examination report revealed that the said pellets and spent-up cartridges had been fired through gun (Ex. P. 7) and that irregular lead pieces and one wad had also been fired through the same gun, which was in working order, and further that the above said cartridges etc. could not have been fired through any other gun. The police also collected Chemical Examiner''s report (Ex. PW) and Serologist''s report (Ex. PX). The police on completion of the investigation, proceeded against the accused for commission of offences u/s 302 read with Section 34 of the Indian Penal Code and Section 27 of the Indian Arms Act.
The charge has been denied by the accused. In their statements u/s 313 of the Code of Criminal Procedure, the accused have denied the relevant aspects of the prosecution case. The accused submits that he belongs to Rajasthan and after marrying the co-accused, daughter of the deceased, he started living in the house of the deceased who had lot of property-movable and immovable. He has denied that Ashok Kumar (P.W. 3) and Gumat Ram (P.W. 4) were at the spot on that night. He has also denied that he was there in the drawing room of the deceased along with the co-accused and Ashok Kumar. He has also denied that Ashok Kumar ever saw him holding the gun and then throwing the same towards the College Road. He has also denied that he was bolted along with the co-accused in sides the room by Ashok Kumar while he went to lodge the First Information Report. It is also denied by him that Ashok Kumar came to the place of occurrence and found them sitting in the drawing room and that the investigation was carried on in the presence of Ashok Kumar and Gumat Ram. He has also denied the execution as well as signing of the letter (Ex. PC), although admitted the execution of application (Ex. PS). It is also denie by him that he used to maltreat the deceased in order to compel her to give her property to him, which she was not inclined to give to him since she apprehended that the accused would alienate the same. As regards the property purchased and then sold by the co-accused, he states that the same was done by the deceased. He states that he and his wife, the co-accused, came to know about the execution of the will (Ex. PY) in 1977 while they were in custody. Then he states that Ashok Kumar (P. W. 3) and Gumat Ram (P. W. 4) deposed falsely against them because they wanted him to run away from Kullu, as he was an outsider. While answering question No. 49, he explains as under:
Ans. On the night of incident, I was sitting along with my wife in the bed room while my wife was giving milk to the child. At that time, my mother-in-law, was in the drawing room. Thereafter, we heard some noise of the people and I thought that it was Thakri daughter of one Sh. Dayalu Ram who used to come there off and on being of bad character. When I and my wife came out on hearing the noise, we found that mother-in-law was lying injured on the Sofa and blood was coming out from the injuries and she was dead. Then I came to report the matter to the police. The police had accompanied me to the house of my mother-in-law without recording the FIR and after the police entered the house, we were not allowed to go inside the house and I remained outside the house, while my wife was on the slab of the house. Thereafter Moti Ram HC brought me and my wife to police station. At that time, I saw S/Sh. Dayalu Ram and Dhani Ram witnesses sitting at the police station. S/Shri Dayalu Ram and Dhani Ram had enmity against me, and they had once set my factory on fire because they wanted that I should run away from this place. They had also made a case u/s 302 IPC against me which was later on converted into a case u/s 326 IPC and I was acquitted in that case. S/Shri Ashok, Dayalu Ram etc. were witnesses in that case. It is a false case and I and my wife have been implicated falsely.
Similarly, the co-accused has also denied the prosecution version against both of them. While answering Question No. 50, she states that the case has been initiated falsely by Dayalu, Ashok Kumar alias Khokhi (P.W. 3) and Dhani Ram (P.W. 8) because they had been persuading her to divorce her husband, being an outsider, but she had declined to do so. Finally, in. her explanation to question No. 52, she narrates
On the night of incident in question when I was giving milk to child and my husband was writing and both of us were sitting in the bed room, we heard noise and thereafter we came out and saw that my mother was lying dead on sofa and blood was oozing out of the injuries. Thereafter my husband went to call the police and after the police came there, we were not allowed to go inside the house and thereafter, I do not know what had happened. After I was arrested in this case S/Sh. Dayalu, Dhani Ram and Ashok Kumar alias Khokhi have been coming to me in the Judicial lock up and have been persuading me that 1 should divorce my husband. They have been asking me that after divorcing my husband, the property will be distributed in equal shares and will get the share thereof, but I declined to do so.
In addition to above, it appears from the trend of the cross-examination that they had also taken the defence of enmity with the prosecution witnesses and other relations of the deceased being interested in her property and also inimical towards them since a long time and many of them had been appearing as prosecution witnesses in those cases against them. The genuineness of the latest will (Ex. DK) has heen denied.
From the evidence on record, it appears quite clear that the present case depends entirely on circumstantial evidence and, therefore, the principles laid down by the Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, have to be kept in mind for determining whether the prosecution has been able to prove the case against the accused. Further, it is also noticeable in this case that the material prosecution witnesses are not only relations of the deceased but they are inimical to the accused and interested in her property.
Shri Ashok Kumar (P.W. 3) states that the deceased was his grand-mother and he had been residing with her since his childhood. He also states that Shri Gamut Ram (P.W. 4) is his maternal grand-fafher who had stayed with him that night since he had come to Kullu for medical treatment which he could not avail for the reason that the Hospital was closed due to holiday. He states that at about 10 or 10.30 p.m. when he had just gone to his bed, he heard the noise of gunshot. He came out and saw the accused holding gun in his hand and on seeing him, the accused threw away the gun to the College Road. After that the accused went to his room and he followed him. When he entered the room, he found the deadbody of his grandmother on the sofa and blood was oozing out from her body. The accused and the co-accused were present there. He bolted the door from outside and went to his room where he narrated the entire story to Shri Gumat Ram (P.W. 4). After telling Shri Gumat Ram that he was going to lodge the First Information Report in the Police Station, he went to do so leaving the accused in the care of Shri Gumat Ram. Police accompanied him to the spot and on opening the bolt of the door in his presence, the deadbody of the deceased was found lying on the sofa and the accused and the co-accused were sitting on the Takhat-Posh. The police made number of recoveries, which included gun (Ex. P. 7), and prepared number of recovery memos which were signed by him and Gumat Ram (P.W. 4) and one Bala Rajan. The clothes of the accused had blood stains and the same were taken into possession by the police after encircling the blood stains with pen-pencil. Letter (Ex. PC) was also recovered from the shirt pocket of the accused in addition to a will executed by Shri Kuldip Singh in favour of Shrimati Prem Kaur and two revocations. The police took into possession number of other articles as well. Prior to the incident in question, he had seen and heard quarrels between the accused and the deceased over property as the accused had been asking her to give her property to him. In cross-examination, he states that neither he nor Gumat Ram went to any doctor in the hospital and before 17-4-1987, Gumat Ram did not come to him regarding treatment nor did he ever stay with him. He admits that the room in which he was residing belonged to Dayalu, who was his real uncle, and that he does not live there every day and comes to stay there off and on. He also admits that front of the room in which he was residing, there is a verandah and when they come out of these rooms, they have to enter into the verandah. So in order to go to the room of the deceased, it is necessary to go to the verandah. The distance, he states, is 15 feet and not 30 feet from his room to the room of the deceased. There are living rooms adjacent to the drawing room of the deceased in addition to a kitchen to which there are independent passages. He denied that before coming out of the room on. hearing the gun shot, he had talked with Gumat Ram. He further states that he saw the accused crossing the door out of the room of the deceased when he came out of his room after hearing the gun shot and when he had crossed his door and had covered two feet towards the room of the accused, he saw the accused crossing the door of his room towards the verandah. The accused had thrown away the gun and thereafter he had immediately entered the drawing room and he also followed him to the drawing room. He had seen him throwing away the gun from the verandah when he was there. He admits that he did not talk to the accused when he threw away the gun and he only followed him to the drawing room. He did not talk to the co-accused nor he touched the deceased when he went to the drawing room since he was perplexed and surprised and went straight hack to his room to inform Gumat Ram (P. W. 4). He states that Gumat Ram did not enter the drawing room after he informed him about the incident.
Further, he admits that there are five tenants residing in that building. Their names are Trivender Mehta, Kirpa Ram, Girdhari Lal, Krishan Kumar, David Mission Wala and Kumari Satya Rani. They are residing there with their families. These tenants are residing in the upper storey and also in the lower storey. He could not say that if one shouts loudly in the drawing room mentioned above, the voice is audible to the tenants residing in that storey on in the lower storey. He also admits that there is Panchayat office adjoining to the said building, S.D.M. office at 50 yards and hospital building at the same distance. Besides, the offices of the Deputy Commissioner, Electricity Board and the Police Station, at a short distance, are also there. He denies that the accused was already in the police station when he reached there and that the accused was requesting the police time and again to lodge the report and the police saw the deceased lying on the sofa and the accused and the co-accused sitting on the Takhet Posh in that room. He did not care to see where the gun had fallen when he reported the matter to the police. The police had seen and recovered the gun after it had gone inside the house and thereafter he came out to recover the gun although he admits that the police had entered the house through the side where the accused had thrown the gun. The police reached the spot at about 11.30 p.m. and the gun was recovered at about 12 p.m. or 1 a.m. The police had sent a police official to police station for finger print detector. Thereafter, on the arrival of the detector, the police put powder on the gun and took photographs of the gun and that of the dead body. He did not see himself as to how the finger prints were detected by the police on the gun. The gun was lying adjoining the road. He knew Shri N.C. Balarajan who was also with the police, while the police was effecting the recoveries. He could not tell the date when the accused had quarreled with the deceased last before the incident but they had been quarrelling with her on many occasions. He did not see the accused firing the gun shot. The police had recorded his statement twice and lie could not say that if it was recorded three times and he had not.stated before the police that the accused had fired the gun shot in his presence. Taker is his cousin sister and Dayalu and Dhani Ram are his uncles. He admits that Taker was visiting the deceased off and on, though she was not living continuously with the deceased. He denies that he had appeared as a witness in the Court of Chief Judicial Magistrate, Kullu, against the accused. The accused had implicated them in a false case. He had heard the statement Ex. DB and the same was correct since he had made this statement against the accused in the Court of Chief Judicial Magistrate. He denies the suggestion that he, Dyalu and Dhani Ram etc. had killed the deceased so that she was not able to execute any latest will after the execution of the will da ted 25-3-1987.
He admits that he had moved an application with an affidavit in the court for the cancellation of the bail in favour of the co-accused since he apprehended danger from her and the application was disposed of by giving an oral warning to the co-accused not. to give threats to him again. He denies the suggestion that he was residing in the house of Kali Dass and was there on the day of the occurrence and he had not seen the incident at all.
Shri Gumat Ram (P.W. 4) states that he is distantly related to Ashok Kumar (P.W. 3) as his maternal grandfather. He had come to the Civil Hospital where he met Ashok Kumar who told him that the Hospital was closed on account of holiday and he was taken by him to his house. Ashok Kumar (P.W. 3) came back to the room after seeing the television at about 9 p.m. and at 10.30 p.m. they heard the sound of gunshot. On hearing this, Ashok Kumar came out of the room and on return told him that the old lady had been killed. Ashok. Kumar also told him that the accused had thrown away the gun towards the College Road. He was made to sit in the room which was bolted before Ashok Kumar went to lodge the report. The accused were inside the room where they were found when the police reached at the spot. The police took into possession the gun and certain photographs were also taken during this investigation. The police also took into possession one letter from the shirt pocket of the accused. He visited the house of Ashok Kumar only that night for the first time. Ashok Kumar also resides in the house of his Uncle Chandu near the Octroi Post at Kullu. Mostly, Ashok Kumar used to reside in the house of Prem Kumar. He had not seen Ashok Kumar in the house of Prem Kaur before that date since he had visited that house on that day for the first time. He denies the suggestion that he had seen the accused and the co-accused on that day for the first time rather he had seen both of them at Kullu 15 years back in the house of Prem Kaur and he had also visited the house of Prem Kaur 15 years back. He had visited the hospital at Kullu after about four days after 17-4-1987. Ashok Kumar had talked to him before he had left the room and had confirmed from him if the gun fire was heard by him i(Gumat Ram) also. Ashok Kumar came back after about two minutes. He admits that the gun was brought by the police when it reached the house of the accused and that the police had shown the gun to him and Ashok Kumar and had asked them to identify the same and they had identified the same accordingly. The television room has two doors and, as such, there are two ways to come out of that room. He denies the suggestion that 1he accused had come from his room after about halt an hour of the arrival of the police on the spot. He further states that Dayalu is distantly related to him as son-in-law and admits that Thakeri is daughter of Dayalu. He did not know that Smt. Thakeri is unmarried but admits that she has two children out of them one is being brought up by him. Dhani Ram is brother of Dayalu and so also Chandu. He had not seen the accused with the gun nor he saw him throwing the gun. He denies the suggestion that he was not present in the house on that night. The witness resiled from his statement and was declaimed hostile and then during his cross-examination by the Public Prosecutor he states that Ashok Kumar went out of the room without talking to him and he had bolted the door of the drawing room and not of the kitchen room when Ashok Kumar had gone away. He further states that the gun was not brought by the police when it came to the house of the deceased for the first tirsie nor the same was shown to him and Ashok Kumar.
He did not know the position of the rooms of the house of the deceased and that Ashok Kumar had gone to report the matter to the police of his own and had not asked him to do so. He admits that the powder was put on the gun in the drawing room where the gun was brought and not where the gun was lying. He further states that Dayalu is related to him as son-in-law and that Thakri, daughter of Dayalu, used to reside in the house of the deceased. He admits that Thakri has two children and one of them is being brought up by him but denies having any knowledge of her being unmarried. Dhani Ram and Chandu are brothers of Dayalu. He did not see the accused with the gun nor he saw him throwing the same. He admits that Ashok Kumar and the Head Constable had gone out of the house and had brought the gun which was sealed in a packet in his presence. He also admits that powder was put on the gun in the drawing room when the gun was brought there and not at the place where the gun was lying.
The third important witness in the case is Dhani Ram (P.W. 8). He states that the deceased was his father''s sister and Dayalu is his real brother. He also states that Budh Ram is his brother and the deceased had executed his will in March 1987 not only in his favour but also in favour of his father and other brothers including the co-accused and that an application for succession had been moved in the Court. According to him, his brother Dayalu had constructed two rooms on the upper storey of the house of the deceased and he had been visiting that house. Ashok Kumar had been residing in that house right from the beginning and the house of Kali Dass is at a distance of 200 metres from this house. Chandu Lai is his brother and Ashok Kumar {P. W. 3) used to reside with the deceased and sometimes in the house of Chandu Lai and Kali Dass. Smt. Thakri is the daughter of his brother and she used to reside off'' and on with the deceased. He denied that many persons used to visit her. Gupat Ram is father-in-law of his brother who used to visit the house of the deceased occasionally. He admits that there are many houses around the house of the deceased and that the tenants used to reside in the house of the deceased. He denied that they murdered the deceased so that she was not able to change the will that had been executed in their favour. He admits that he had appeared as a witness in the Court of Chief Judicial Magistrate, Kullu , agsinst the accused.
Dayalu Ram has not been produced by the police.
Lai Singh, Inspector (P. W. 11) was the S.H.O. during this time. He states that on 17-4-1987, the matter (V. P. Bhatnagar and Bhawani Singh, JJ.) was reported to him by Ashok Kumar (P.W. 3) at 11 p.m. (Ex. PB). He went to the spot where he asked for Gumat Ram (P. W. 4) who was brought before him by Ashok Kumar (P. W. 3). He opened the bolt of the drawing room and saw the dead body of the deceased lying on the sofa and the accused and the co-accused were on the Takhat Posh in the said room. They were taken to the adjoining room where Amar Singh, S.I. interrogated them. Ashok Kumar (P. W. 3) showed him the place where the gun was thrown. Photographs of the same and of the dead body were taken and Prem Singh, Head Proficient (P.W. 2) was summoned to the spot who examined the gun and went away. Further investigation was carried, recoveries made and duly sealed. Blood stained clothes, namely, shirt (Ex. P. 10) and Pyajama (Ex. P. 11) were taken into possession vide recovery memo. (Ex, PM). These were taken from the person of the accused. Letter (Ex. P.C.) was also recovered from the pocket of the shirt of the accused and was taken into possession vide recovery memo. (Ex. PQ). Will dated 21-9-1977 (Ex. PD), two revocation letters (Ex. PE and Ex. PF) and copy of the Report Rojnamcha (Ex. PA) were taken into possession vide recovery memo. (Ex. PO) besides the gun licence and the revolver. Inquest Report (Ex. PR/2) was prepared and the deadbody was sent for postmortem examination and the post mortem report is Ex. PR/1. Site plans (Ex. PBB and Ex. PCC) were also prepared. They pertain to the drawing room and the place where the gun was lying.
He summoned the tenants of that house but they declined to make any statement on the ground that there had been daily quarrels in between the accused and the deceased and they were not ready to make any statement. He sent for Dayahi and Dhani Ram at the instance of Ashok Kumar who had revealed that these persons were the kith and kin of the deceased.
He denies that the accused was with him at the police station before he went to the spot and that the accused had handed over the letter (Ex. PC) at the police station that night before he went to the spot and that he had gone to the house of the deceased with the accused.
He denies that Prem Singh (P. W. 2) had come to him in the drawing room with the gun itself and that formalities with respect to the examination of the gun etc. were made in the drawing room itself the statements of Ashok Kumar (P.W. 3) and Gumat Ram (P.W. 4) were recorded on 18-4-1987. He states that instead of three there are two entrances to the drawing room hut denies that through the door from the drawing room one can go to the residential room of the accused and that another way to go to the room of the accused is from the side of the kit chen. Again states, that there is only one entrance to the drawing room and the same is through the main door. Gumat Ram (P. W. 4) was standing at the door of the kitchen room. He admits that if one is sitting in the drawing room and the main door is bolted from outside, the person sitting inside the drawing room can go through the other door from the drawing room provided that door is not bolted from the other side. He further states that he did not remember the names of the tenants whom he had called nor he remembers the names of other persons who had come from the adjoining houses. He did not know till 17-4-1987 that murder had been committed and as such he did not arrest him on 17-4-1987. The accused was arrested on 18-4-1987 when he came to the conclusion that murder had been committed by him. He was arrested from the house of the deceased. From the statements of Ashok Kumar (P.W. 3) and Gumat Ram (P. W. 4) he came to the conclusion that the co-accused was also involved in the murder. He did not receive any complaints against the accused prior to the occurrence in question at the police station. He denied the suggestion that the murder was committed by Dayalu, Dhani Ram and Ashok Kumar and Thakri in whose favour the will had been executed by the deceased.
According to Dr. Roshan Lal (P. W. 5), the deceased had died due to injury to brain (vital organ) shock and hemorrhage as a result of the gun shot injury. The probable time between injury and death was spontaneous and between death and postmortem about 24 to 48 hours. In cross-exami nation he states that the death in this case had taken place within one minute of the gun shot injuries which were caused from a distance of 3 to 6 feet.
Prem Singh (P.W. 2) examined the gun. According to him, the gun was lying on the drain-half inside and half outside near the road and the house of the deceased. It was being guarded by a constable when he reached there. He did not touch the gun till the S.H.O. came there and on this arrival, it was examined at his instance. He put powder on the butt of the gun and balance point but he did not see any signs of fingers on that part of the gun. He had examined the gun with the mag nifying glass. There were no finger prints on that. He had left the gun and he had come back.
The prosecution has also produced certain documents. Among them are Ex. PA, a report dated 22-6-1982 to the police, police station Kullu, thereby suggesting that the relations between the deceased and the accused were not cordial and they were involved in litigation and the deceased was apprehending danger to her life on the return of the accused who had gone somewhere along with his wife. Another document is Ex. PC dated 17-4-1987. It is a report to the police pointing out that the deceased had given shelter to Thakri, daughter of Dayalu and two persons from Punjab had come to take her and as the deceased instead of sending her with them was sheltering her. These people had threatened the co-accused saying that the deceased be asked to send Thakri with them or else there would be bloodshed. There persons were known to Thakri since she had been hiding herself from these persons and in case any harm was done to her and the deceased, the responsibility would be of Thakri Devi. Then, there is report of Forensic Expert (Ex. PV) according to which the 12 bore crime cartridge cases (marked C-1 and C-2) had been fired through the right and the left barrel of the 12 bore DBBL gun, that is, the gun in question, and the irregular lead pieces and the wad were also fired through the same gun. The report of the Chemical Examiner C Ex. PW) also noticed blood on the articles sent for blooddetection. There is report of the Serologist and Chemical Examiner (Ex. PX) relevant only to the extent that on items Nos. 43 and 49 blood group ''B'' was noticed although regarding others, the same could not be determined. Ex. P.Y is the original will dated 21 -9-1977, registered with Sub-Registrar. Kullu. This indicates that Jatinder Singh s\\o the accused had been adopted by her with the consent of the accused and the co-accused and the child was being brought-up by her like her own son with natural affection for him. The entire property, movable and immovable,, has been given to Jatinder Singh and none else. Then there is will (Ex. DK) whereby the property has been given to Jatinder Singh, Jhatla, Sliakunt Jhalla and Chand, children of the accused and her brother Budh Ram and nephews, namely, Dayalu Ram, Dhani Ram, Rewat Ram and Chandu Lai etc.
Copies of judgment (Ex. PDD) showing conviction u/s 436 of the Indian Penal Code relating to the setting on fire the concern Kerala Tyres and Anr. (Ex. PEE) Under Sections 326, 465 and 468 of the Indian Penal Code have been placed on the record of this case by the prosecution to show the involvement of the accused in these cases and his relationship with the deceased.
These are some of the material aspects of the prose caution case on the basis of which it is asserted that the circum stances are clear enough to prove the case against the accused and the co-accused. Let this be appreciated and conclusions drawn in the light of the evidence that has come on the record of this case.
The prosecution alleges motive for the commission of the crime. According to it, the motive for the commission of the offence was the property of the deceased. The accused wanted to grab it and in order to prevent her from parting with the same in favour of anyone other than him, the crime was commit ted. We are not convinced by this kind of motive. According to the first will (Ex. PY) dated 21-9-1977, Jatinder Singh Jhalla, son of the accused has been adopted as son by the deceased with the consent of the parents. He was being brought up like her own son by the deceased. She had natural affection for him and whole of the property has been given to him by this document. There is no evidence of resentment by the accused on the execution of this will towards the deceased. Reference to report No. 3 dated 22-6-82 to show that the deceased was apprehending danger to her life at the hands of the accused, is not of much relevance and significance for the reason that it pertains to the year 1982 and no harm of any kind was caused to the deceased by the accused. Further, no action appears to have been taken by the police on this report nor the accused has been asked to explain it. So far as the execution of the second will (Ex. DK) dated 25-3-1987 is concerned, it appears that the accused had no knowledge of its execution. By this deed, the property has been bequeathed not only in favour of the children of the accused but also in favour of Budhi Ram (brother), Dayalu Ram, Dhani Ram, Rewat Ram and Thakri Devi. These people appear to be iinstrumental in the execution of this will and are the new beneficiaries of the properties of the deceased. Their past conduct points out that they had been creating rift and misunderstanding between, the accused and the deceased. They appear to be responsible for the initiation of certain cases against the accused and appeared against him as witnesses. On the other hand, the attempt of the accused had been to appease the deceased with the result that some of the cases were compromised. The case of the prosecution that the accused wanted to eliminate her, does not appear to be based on any reason. As a matter of fect it was in the interest of the accused to have endeavored to i change the mind of the deceased in order to prevent her from alienating the property in anyone else''s favour in case he knew about the execution of the second will. If this is the position, then, who could be intending to eliminate her? Obiviously, someone who was beneficiary from out of the second will so that after the execution of the same, the accused could not succeed in changing her mind and revoke the second will and succeed in getting the whole property. The facts that the accused wanted to grab the whole property and the deceased did not want to give any property to him for the reason that he had sold the land that was purchased by the deceased in favour of the co-accused is not of much relevance and value for the reason that the deceased had given the whole property to their son Jatinder Singh Jhalla and even if the first will (Ex. PY) was revoked, even then the property was to come to the co-accused as a matter of course. The conclusion, therefore, is that the motive part of the prosecution case is thoroughly week shaky and un-believable.
Next comes the occurrence of 17-4-1987 in which the deceased was murdered. Two witnesses, namely, Ashok Kumar (P.W. 3) and Gumat Ram (P.W. 4) have been strongly relied upon by the prosecution to assert and prove that the murder was committed by the accused and the co-accused. It is difficult to believe the testimony of these witnesses due to number of factors and circumstances which are of grossly suspicious nature. It is difficult to believe that Ashok Kumar) was living in the room that night where the prosecution alleges nor can it be said that Gumat Ram (P.W. 4) was this quest that night. It is not easy to accept that Gumat Ram P.W.4) had come to the hospital for medical check-up and could not do so since the hospital was closed. It may be closed but duty doctors are normally available. Further, Ashok Kumar (P.W. 3) is an employee in the hospital and if they had met each other, Gumat Ram (P.W. 4) could be easily shown to the duty doctor or someone else nearby. Gumat Ram (P.W. 4) is coming to stay with Ashok Kumar (P.W. 3) after 15 years. They are relatives and it cannot be believed that Ashok Kumar would leave him in the room and himself go to watch the television in the room of the deceased for hours together. Who served him food and at what time and where, there is no evidence. Further, hearing of gunshot by him and going to the drawing room alone is not only surprising but unbelievable. In case both these witnesses were in the same room, it was natural for both of them to have gone to find out from where the sound of the gun fire had come. How did they come to the conclusion that it was fired only in. the drawing room and nowhere else? Many people are living in the building and in the neighborhood. His statement that he saw the accused holding the gun that was thrown down as soon as the witness was seen by the accused is unacceptable. Again, the version that he followed the accused to the drawing room where accused was locked along with the co-accused is not only strange but a made-up affair. This kind of evidence is not only imaginary but also concocted. It is not a case where the presence of these two witnesses could be natural; rather the presence of the accused and the co-accused is natural since they are not only the close relative of the deceased but they are living in the adjacent room.... There is evidence which points out that the accused used to live in this room off and on since he was occupying the accommodation in the nearby house of Chandu Lal who is his uncle. One more fact is noticeable. Ex. PC, relied upon by the prosecution, was written at 7 p.m. According to Ashok Kumar (P.W. 3), he was with the deceased, watching television programme between 6 p.m. to 9 p. m. As per his version, the accused and the co-accused were also there. If this was so, in that case the accused was writing this document at that place but this witness does not say so, which means either he was not there, as already concluded above, or the accused was not there. On this score also, the testimony of Ashok Kumar is infirm, contradictory and unbelievable. The reliance of the prosecution on Ex. PC is of no consequence and is meaningless. In case it is an incriminating document as the prosecution wants it to be used, it is unnatural that the accused should have kept the same in his pocket to facilitate the task of the police in involving him in the commission of this offence. Its recovery is, therefore, fake and the version of the accused that it had already been given to the police, has substance. It simply mentions certain facts which cannot be termed baseless, looking to the behavior, conduct and relationship of Smt. Thakri Devi.
The presence of Ashok Kumar (P.W. 3) and Gumat Ram (P. W. 4) is excluded by the facts that in case deceased war. killed by the accused, it cannot be believed that he would be holding gun for some time to enable Ashok Kumar (P.W. 3) to see it before the same was thrown down. Further, the way they gave contradictory versions as to the place and the manner the gun was examined, shows that they did not know anything about this aspect of the matter including the place where the gun was ultimately found, which appears from the fact that the police could not have taken that much of time in locating it as according to it, these facts about the gun had been narrated by Ashok Kumar (P.W. 3). The police could have straightaway found it on arrival at the spot.
The gun (Ex. P. 7) is, of course, owned by the deceased. but its use by the accused is eliminated by its examination Prem Singh (P.W. 2), who examined the same, has specifically stated that he did not detect any finger prints on the butt of the said gun.
It appears that these witnesses were not present to see the occurrence. On coming to know of the gun shot, the accused and the co-accused went to the drawing room where; the deceased was found dead. The accused went to report the matter to the police and the police without recording the! report came to the spot and made inquiries about the whole affair relating to the deceased, her relations, including the; accused and the co-accused. These witnesses as well as her: near relations were called and associated in the investigation. Although the First Information Report has been shown to have been recorded at 11 p.m. but it was not actually recorded at this time since the copy to the ill aqua Magistrate was received at 4.30p.m. on 18-44987. Why this delay ? It could be handed over during the night itself, say, with in one or two hours of the occurrence since the ill aqua Magistrate is available in the same town at a short distance. It was quite easy for the police to have them as witnesses against the accused or else they could be the accused in the case since the motive on which the prosecution basis its case can be asserted more clearly against them as compared to the present accused. They were all inimical towards the accused and the co-accused. As is apparent from the evidence on record, they were the beneficiaries of the latest will and their intention to eliminate the deceased to prevent her from revoking the will could be there. They involved the accused and the co-accused with clear motive in their minds.
In view of the evaluation of the matter on this aspect,) it is quite clear that the witnesses of the prosecution are neither natural nor trustworthy and it is safe, therefore, to discard their testimony.
The prosecution case suffers from another defect as well. There are large number of Government officers nearby the house of the deceased. Even in this building, there are numher of tenants living with their families. They have no been included as witnesses. The explanation of the Investigating Officer that they did not want to come forward and be ''witnesses in the case for the reason that quarrels were happening daily in the family, is thoroughly unbelievable. The conclusion that can be easily drawn is that these witnesses have been (picked up by the prosecution conveniently looking to the peculiar facts and circumstances of this case.
The assessment of the evidence by the learned trial Judge has been thoroughly inapt and faulty. The evidence of the witnesses has been wrongly appreciated and accepted. Similarly, it has been wrongly concluded that the relations of the accused with the deceased were strained. It is not understood how the trial Judge could use the judgments against the accused when he was acquitted in one case by the High Court and in the other by the Sessions Court. The explanation of the accused that he was an outsider and these people were making efforts to compel him to leave the place in order to grab the property of the deceased seems to be correct. This assertion of the accused is also supported by the explanation of the co-accused also who was being compelled by them to divorce the accused.
The principle of Mast seen with the deceased'' has been wrongly applied in the present case. It is not established as to who was actually with the deceased before her death. At least accused and co-accused stand eliminated and their appearance in the drawing room starts from the stage when they came out of their accommodation as a result of noise that was being created by the people. Obviously they must have heard the gun shots and knew about the incident. This kind of evidence further eliminates the possibility of the accused and the co- accused being responsible for the commission of the offence. None out of these people has been added as a witness in the case by the police. It is a serious lapse and renders the whole pro secution story completely doubtful. There is no iota of evidence against the co-accused. No conspiracy can be inferred. Her inclusion appears to be simply because she is the wife of the accused and she may not have yielded to the pressure exerted by these relations of the deceased to divorce the accused and further to keep her away as the future recipient of the property of the deceased. The conclusion that her involvement in the case was due to her conduct for having kept silent after the occurrence, ce, instead of raising hue and cry, is wrong; no such inferen-can be drawn since the police has not collected any evidence on this aspect of the case. Further, different people react to circumstances differently some raise hue and cry while other keep quiet. The accused and the co-accused were, as a matter of fact, doing everything possible in this connection. She remained with the dead body whereas the accused went to the Police Station to lodge the report.
The learned Sessions Judge has wrongly concluded that the accused raised inconsistent defences in this case. This is not true. As a matter of fact, both the accused have explained rightly and comprehensively all the circumstances appearing against them. In fact it was for the prosecution to prove the case against the accused and in case it fails to do so, the court cannot make use of the defence, may be inconsis tent, in aid of the prosecution for the conviction in the case. The presence of blood stains on the clothes of the accused also shows that he touched the dead body after the incident. Moreover, he could not have got the stains had he fired the gun from the distance stated by the doctor in his deposition. Further, had he been the killer he would not have touched the dead body at all.
On the other hand, absence of blood stains on the clothes of either Ashok Kumar (P.W. 3) or Gumat Ram (P.W. 4) shows their absence at the scene of occurrence. Otherwise it was natural for them to have attended and therefore, touched the dead body of the deceased and sustained blood stains on their clothes. Their presence, as disclosed by Shri Vijay Kam oj (P.W. 6) and relied upon by the learned Sessions Judge, is clearly doubtful for the reason that he could not be exjected to lemain there for two hours only to take a few photographs. In the alternative, they may have been collected by the polic within the span of two hours during which time he was there although it is doubtful how he could know them without any past acquaintance.
Again, their conduct is unusual in the sense that they did not raise any hue and cry to collect people on their coming to know al out the murder of the deceased. They did not associate anyone out of the many living in the premises nor took any of them of the police station to lodge the Fitst Information Report. Their behavior in this regard is quite trange and suspicious and in such a situation, the only inference that can be drawn easily, leasonably and aptly is that they did not see the occurience and were called by the police soon after the incident when the incident was reported by the accused. Otherwise, if the story of the prosecution is to be believed, the police should have arrested the accused and the coaccused there and then at the spot and the version of the Investigating Officer shows that he was doument full as to the involvement of the accused in the commission of the crime as a result of which he was arrested on 18-4-1987 on the basis of the statements of Ashok Kumar (P.W. 3) and Gumat Ram (P.W.4). In case the accused was to be arrested on their statements, it: could have been done, as already observed, on 17-4-1987 when the police visited the spot since their statements were recorded, according to the prosecution, at that time. In addition to this, non mention of the names of the accused and the co-accused in the First Information Report further indicates that the accused war not the perpetrator of the crime and the investigating agency was not clear as to his participation and, therefore, it is easy to infer and conclude that things changed on coming together of the relations and persons inimical towards the accused and the co-accused.
Finally, something more about the gun needs to be noticed. Not only that the visions of witnesses as to the place of examination of the gun are contradictory, but absence of scratch marks on the gun due to the same being thrown from such a height to the rough surface down below, further creates doubt not only in the version of Ashok Kumar (P.W. 3) but also in the versions of Prem Singh (P.W. 2) and the Investigating Officer.
We have examined the matter quite exhaustively. We feel that the evidence adduced by the prosecution is not at jail cogent and convincing. In such a situation, it is not only wrong but hazardous to sustain the judgment of conviction by the trial Judge. Accordingly, we allow the appeal filed by the accused and the co-accused and set-aside their convictions and sentences. They are acquitted of all the charges. Accused Nand Singh Jhalla is stated to be in Jail. He is ordered to be set free forthwith. Co-accused is on bail. All surety bonds and bail bonds executed by this accused at any stage of the trial are hereby terminated. Fine, if any paid, be refunded to them.
In view of the above, the appeal filed by the State of Himachal Pradesh is hereby dismissed.