Smt. Dhanno Devi @ Dhanni Devi and others vs State of Haryana

Alok Singh, J.—All the three accused/appellants are assailing order/judgment dated 27.1.2009 passed by Additional Sessions Judge, Fetehabad in Sessions Trial No.39-ST of 14.11.2007 (FIR No.254 dated 23.4.2006 under Sections 302/34 IPC, P.S. City Fatehabad), whereby learned trial Judge has found them guilty for an offence punishable u/s 302 IPC read with Section 34 IPC and has sentenced all the three accused to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/-each and to further undergo rigorous imprisonment for a period of two months, in case of non-payment of fine.

Brief facts of the present case inter alia are that on 22.4.2006 accused Dhanni Devi and her husband Chand Ram came to the house of complainant Ravi Parcha son of Smt. Lali Devi and asked Smt. Lali Devi (real sister of accused Dhanni Devi) to come to their house in Anaj Mandi Fatehabad, on the next morning for the purpose of going to Dadri; Lali Devi along with Sonu went to the house of the accused on the next morning at about 8.00 a.m.; at about 10.00 a.m. Sunil Kumar, who is real uncle of Ravi Parcha, came to the house of Ravi Parcha and told him that he had received a telephonic message from Jitender son of Chand Ram that Lali Devi has suffered heart attack, therefore, they should immediately reach to Singla Hospital, Bhattu road, Fatehabad; having received information from Sunil Kumar, Ravi Parcha complainant along with his uncle Sunil Kumar and his brother Subhash reached Singla Hospital, Fatehabad, where they found Smt. Lali Devi having injuries marks around her neck and upon her face lying dead in front of the Singla Hospital, Fatehabad; accused Dhanni Devi and her son accused Jitender were standing near the dead body, however, immediately thereafter fled from the spot; Ravi Parcha along with his uncle Sunil Kumar took the dead body of the deceased Lali Devi to the Civil Hospital, Fatehabad. An FIR was got registered with Police Station City Fatehabad on 23.4.2006 at 2.05 p.m. narrating entire above-mentioned events and further stating that Chand Ram his wife Dhanni Devi and son Jitender residents of Grain Market, Fatehabad, after hatching conspiracy, have killed Lali Devi by strangulation and by administering sulphas (poison); motive for murder was dispute regarding landed property pending in the maternal family of the complainant.

We have heard Mr. R.N. Kush, learned counsel for the appellants and Mr. Vinod S. Bhardwaj, learned Additional Advocate General, Haryana, and have carefully perused the record.

There is no eyewitness of the occurrence. Prosecution is banking upon circumstantial evidence as well as two extra-judicial confession made by Dhanni Devi accused before Sham Lal Rathi PW13 and Bal Kishan PW14. Let us, first of all, scrutinize circumstantial evidence.

PW-7 Ravi Parcha, son of deceased Lali Devi, in his statement on oath, has stated that Lali Devi on the call of accused Dhanni Devi had left the house on 23.4.2006 along with Sonu to go to the house of Dhanni Devi. However, in the present case Sonu was not produced in the witness box to state that Lali Devi had reached and entered into the house of Dhanni Devi accused. Likewise, there is no witness to prove that Lali Devi was found dead in the house of Dhanni Devi accused. Rather as per PW7 Ravi Parcha, she was found dead in front of Singla Hospital.

Hon''ble Apex Court in the case of Musheer Khan @ Badshah Khan and Another Vs. State of Madhya Pradesh, , in para Nos.39 to 46, has observed as under:

In a case of circumstantial evidence, one must look for complete chain of circumstances and not on snapped and scattered links which do not make a complete sequence. This Court finds that this case is entirely based on circumstantial evidence. While appreciating circumstantial evidence, the Court must adopt a cautious approach as circumstantial evidence is "inferential evidence" and proof in such a case is derivable by inference from circumstances.

Chief Justice Fletcher Moulton once observed that "proof does not mean rigid mathematical formula" since "that is impossible". However, proof must mean such evidence as would induce a reasonable man to come to a definite conclusion. Circumstantial evidence, on the other hand, has been compared by Lord Coleridge "like a gossamer thread, light and as unsubstantial as the air itself and may vanish with the merest of touches". The learned Judge also observed that such evidence may be strong in parts but it may also leave great gaps and rents through which the accused may escape. Therefore, certain rules have been judicially evolved for appreciation of circumstantial evidence.

To my mind, the first rule is that the facts alleged as the basis of any legal inference from circumstantial evidence must be clearly proved beyond any reasonable doubt. If conviction rests solely on circumstantial evidence, it must create a network from which there is no escape for the accused. The facts evolving out of such circumstantial evidence must be such as not to admit of any inference except that of guilt of the accused. (see Raghav Prapanna Tripathi Vs. The State of Uttar Pradesh,

The second principle is that all the links in the chain of evidence must be proved beyond reasonable doubt and they must exclude the evidence of guilt of any other person that the accused. (see State U.P. Vs. Dr. Ravindra Prakash Mittal,

While appreciating circumstantial evidence, we must remember the principle laid down in Ashraf Ali v. King Emperor, 21 CWN 1152 : 43 IC 241 that when in a criminal case there is conflict between presumption of innocence and any other presumption, the former must prevail.

The next principle is that in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and are incapable of explanation upon any other reasonable hypothesis except his guilt.

When a murder charge is to be proved solely on the circumstantial evidence, as in this case, presumption of innocence of the accused must have a dominant role. In Nibaran Chandra Roy v. King Emperor, 11 CWN 1085, it was held that the fact that an accused person was found with a gun in his hand immediately after a gun was fired and a man was killed on the spot from which the gun was fired may be strong circumstantial evidence against the accused, but it is an error of law to hold that the burden of proving innocence lies upon the accused under such circumstances. It seems, therefore, to follow that whatever force a presumption arising u/s 106 of the Evidence Act may have in civil or in less serious criminal cases, in a trial for murder it is extremely weak in comparison with the dominant presumption of innocence.

The same principles have been followed by the Constitution Bench of this Court in Govinda Reddy and Krishna and Another Vs. State of Mysore, where the learned Judges quoted the principles laid down in Hanumant Vs. The State of Madhya Pradesh, . The ratio in Govind quoted in AIR para 5, p. 30 of the Report in Govinda Reddy are: -

5.... ''10. .... in cases where the evidence is of a circumstantial nature, the circumstances [which lead to the conclusion of guilt should be in the first instance] fully establishes, and all the facts so establishes should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be [shown] that which all human probability the act must have been [committed] by the accused.

In view of the dictum of Hon''ble Supreme Court in the case of Musheer Khan (supra), when a murder charge is to be proved solely on the basis of circumstantial evidence, as in the present case, presumption of innocence of accused must have a dominant role unless proved otherwise by cogent evidence proving complete chain of circumstances. In the opinion of this Court, in the present case, chain of circumstantial evidence is completely missing. After perusal of the record, we find that accused Dhanni Devi and deceased Lali Devi were real sisters and both of them were plaintiffs against other family members. There is no material on record to suggest that Dhanni Devi and Lali Devi were contesting any civil dispute against each other. Therefore, motive to murder Lali Devi, as alleged, is also not proved.

Now we would discuss theory of extra-judicial confession. In the present case, prosecution has produced PW-13 Sham Lal Rathi and PW-14 Bal Kishan. PW-13 Sham Lal Rathi has stated on oath that on 23.4.2006 he and Mahender son of Kashmiri Lal Balmiki were standing in front of General Hospital, Fatehabad; at that time accused Dhanni Devi came to them and told that she along with her son Jitender and husband Chand Ram has committed murder of her sister by administering sulphas and thereafter strangulated her and police is adamant to arrest them; Dhanni Devi requested him to produce her before the police. However, in the cross-examination Sham Lal has stated that although he is residing at a distance of half kilometer from Anaj Mani, Fatehabad, however, he was not on visiting terms with the accused persons. He has further stated that he had no conversation with Dhanni Devi nor met her prior to 23.4.2006. PW-14 Bal Kishan son of Moti Ram, resident of Balmiki Basti, Charkhi Dadri, has stated on oath that on 23.4.2006 in the morning at about 9/10.00 a.m. he received a telephone from Dhanni Devi to the effect that Lali Devi had suffered heart attack; having received telephonic call about the heart attack of Lali Devi he along with his family reached General Hospital, Fatehabad, and enquired about the death of Lali Devi from Dhanni Devi accused; Dhanni Devi disclosed that Lali Devi got photographed Priyanka daughter of Dhanni Devi with Sonu son of Nandu resident of Hansi and she wanted to blackmail Priyanka (daughter of Dhanni Devi), therefore, Dhanni Devi accused along with her husband Chand Ram and her son Jitender committed murder of Lali Devi by administering something in lemon water and thereafter strangulated her.

Statements of P-13 and P-14 do not inspire any confidence for the simple reason that Sham Lali Rathi was not on talking or visiting terms with accused. A significant statement like extra-judicial confession is unlikely to be made to a person who has no relationship with the maker of any such statement. Therefore, confession by accused before Sham Lal Rathi seems to be most improbable. Case of the prosecution, as per complainant PW-7, is that motive to murder Lali Devi was land dispute between Lali Devi and accused Dhanni Devi, however, Bal Kishan PW-14 has set up third story that since Lali Devi wanted to blackmail Priyanka (daughter of Dhanni Devi) on account of her photograph with Sonu son of Nandu. Moreover, PW-7 Ravi Parcha has stated that Dhanni Devi and Jitender accused had disappeared from Singla Hospital, therefore, there is no question of their remaining present in the General Hospital thereafter for the purpose of making extra-judicial confession either before PW-13 or PW-14. In our opinion, prosecution has failed to prove theory of extra-judicial confession too.

Therefore, impugned judgment cannot be sustained in the eyes of law. The appeal is allowed. Impugned judgment passed by learned trial Court is set aside and accused are acquitted. Let accused be released forthwith, if are not wanted in any other case.