Om Parkash vs State of Haryana

H.S. Rai, J.

Om Parkash, Bhagwan Das and Satya Devi were convicted by Additional Sessions Judge, Hisar under Section 302 read with Section 34 of the Indian Penal Code, 201 of the Indian Penal Code and 404 of the Indian Penal Code and were sentenced to imprisonment for life rigorous imprisonment for one year and rigorous imprisonment for one year respectively.

Feeling aggrieved they have filed this appeal.

On 23rd of November 1986 at about 800 A.M. a dead, body was found lying near the public latrines in the common place in Dhanak Mohalla, Hisar. Phool Chand, President of Dhanak Sabha, Hisar, informed the police. A case was registered and during the investigation it transpired that the appellants strangulated Bhagwanti deceased to death and threw her dead body at that place. The appellants were arrested, challaned, tried and convicted as mentioned in the opening part of the judgment.

The prosecution in support of its case examined PW 3 Dr. P.K. Singhal, Medical Officer, Civil Hospital, Balabgarb who conducted autopsy on the dead body of Bhagwanti deceased on 23rd of November 1986 at 1.15. P.M. and found that she had died due to as phyxia as a result of strangulation which was antemortem in nature and sufficient to cause death in the ordinary course of nature. The time that elapsed between death and postmortem, according to the doctor, was within 36 hours.

PW 1 Sham Sunder stated that the deceased was his mother. Satya Devi appellant was working in their house and the deceased had given Rs. 11,000/ to Satya Devi as a loan and was receiving monthly interest at the rate of 3% every month.

On 22nd of November 1986 Sham Sunder came late to his house and found that his mother was not in the house. His wife informed him that his mother was to go to a Jagrata and was to sleep there for the night.

On 23rd of November 1986 he heard noise in the Mohalla that a dead body of an aged lady was lying in the Dhanak Mohalla. He and his wife went there and found that the dead body was of his mother. She always used to wear one gold bangle each on, both her hands and two ear rings on her person but all the ornaments were missing.

PW 2 Kamla wife of Dharam Chand stated that on 22nd of November 1986 at about 5 P.M. she had seen Bhagwanti deceased passing in front of her house and on enquiry. Bhagwanti told her she was going to Satya Devi appellant''s house for getting her money back. At about 6 P.M. Lachhman Dass husband of Bhagwanti came that side and enquired from her about Bhagwanti and she told him that Bhagwanti had gone to Satya Devi''s house. At the asking of Lachhman Sass, she went to Satya Devi''s house and was informed by Satya Devi that Bhagwanti was not in her house although the young son of Satya Devi had informed her that Bhagwanti was inside. She came back and informed Lachhman Dass that Bhagwanti was not at the house of Satya Devi.

PW 4 Sham Sunder draftsman prepared site plan Ex. PB.

PW 5 Dewan Chand stated that in his presence Bhagwan Das appellant made disclosure statement Ex, PC disclosing that he had kept concealed one gold bangle in his residential house in a trunk and could get the same recovered. His statement was recorded and the bangle was recovered. This was on 26th of November 1986. Then again on 27th of November 1986 Satya Devi appellant made a disclosure statement Ex. PE. that she had kept concealed one gold bangle in the trunk lying at her residential house and could got the same recovered and she also got the bangle recovered.

On the same day, Om Parkash appellant made a statement Ex. PE that he had kept concealed two earrings in a wooden Peti in his house and could get the same recovered and he also got the pair of earrings recovered. Dewan Chand had attested the memos of recovery.

PW 6 Hans Raj, a retired Sub Inspector of Police stated that on 25th of November 1986 Satya Devi and Om Parkash appellant came to him and made extra judicial confession, to the effect that the alongs with Bhagwan Das appellant had caused the death of Bhagwanti deceard by strangulation. He produced them before the Investigating Officer.

PW 7 S.I. Bhim Singh and PW8 Inspector. Nothu Ram are Investigating Officers

After the close of the prosecution case, the appellant in them statement under Section 313 Cr.P.C. denied the prosecution allegations and pleaded false implication.

In their defence DW 1. A.S.I. Zile Singh had proved certain statements recorded by him during investigation. DW 2, H.C. Jiwan Ram is a formal witness. DW 3 H.C. Ram Singh had produced the service record of A.S.I. Zile Singh and DW 4 Raj Kumar constable had produced the character roll file of S.I. Hans Raj.

We have heard the learned counsel for the parties and gone through the evidence with their help.

The prosecution case rests on circumstantial evidence. According to the prosecution, there are three circumstances which prove the case against the appellants:

(i) Last seen evidence by Kamla PW.

(ii) Extra judicial confession made before Hans Raj PW and

(iii) Recovery of gold bangles and earrings from the appellants.

As far as last seen evidence is concerned, according to Kamla PW she had seen the deceased going to the house of Satya Devi accused. She does not say that the accused and the deceased were going together or deceased was seen in the company of the accused. Even she did not mention in her statement under section 161 Cr.P.C. before the police with which she was duly confronted that she had told Lachhman Dass that deceased Bhagwanti had gone to the house of Satya Devi appellant. Moreover, Kamla is a relation of the deceased and also otherwise associated with her family. Her testimony is not such, when seen in the light of improvements made by her from her police statement, which inspires complete confidence.

As far as extra judicial confession before Hans Raj is concerned, it suffers from inherent infirmities. Hans Raj is a retired police officer. His house is situated opposite to the house of the complainant. His evidence does not show that the accused had some special relationship with him. According to him, he is running a shop of cloth merchant and the accused had come to purchase cloth from his shop many times. Apart from this, according to the statement before the police, with which he was duly confronted, Om Parkash and Staya Devi accused had made a joint confession but in the court to over come this legal infirmity he stated that both had made the confession one after the other. Extra judicial confession before a such person with whom the accused had no special relationship, who otherwise is close to the deceased family and is a retired police officer, cannot be taken as one which can be implicitly relied upon.

The third circumstance appearing against the accused is the recovery of gold ornaments. It is not disputed that no identification of the ornaments was held. They are of ordinary make and in the absence of any special mark of identification, this recovery cannot be of much value against the appellants.

All the three circumstances appearing against the appellants in prosecution case are not legally established. It cannot be said that the chain of circumstances confirms the guilt of the accused beyond reasonable doubt. There are lot of loopholes in the prosecution evidence which clearly show that the accusedappellants might not be the persons who killed the deceased. In the circumstances of the case, the appellants are given the benefit of doubt. Their appeal is accepted. Their conviction and the sentence are set aside and they are acquitted.