State of H.P. vs Kaushalya Devi

Bhawani Singh, J.—This appeal arises out of the judgment of Sessions Judge, Kangra in Sessions case No. 3 of 1979, Session Trial No. 4 of 1979, decided on August 4, 1980. The accused has been acquitted for an offence u/s 302 of the Indian Penal Code, and the State has moved this appeal against this acquittal.

Briefly, the prosecution case is that deceased Badri Ram (80) lived in village Karu. He was given beatings by the accused, who is his wife. The allegation is that on 9-9-1978, during day time, the accused and the deceased had a quarrel and the deceased was given beatings inside the room. Thereafter, he ran away towards a "DANGA" that was there at a short distance and the accused pushed him down the place. Thereafter, a stone was thrown at him which hit the deceased in the head. He died during the night.

This matter was reported to the police by Krishan Datt through report Ext. PW-2/A, and First Information Report was accordingly registered and the Police started investigation.

During the course of investigation, the Police examined a number of witnesses and collected necessary evidence and preferred the challan against the accused.

The accused was examined u/s 313, Criminal Procedure Code. All the incriminating circumstances appearing against her were denied. Her case is that the deceased was mentally deranged prior to the occurrence and used to quarrel and give beatings to the villagers, who were fed up with the deceased. An enquiry in this connection was also conducted by the Police. It has also been explained that on the day of occurrence, the deceased was not inside the room, as alleged. As a matter of fact, lie was outside in the compound sitting on the ''DANGA''. The stories of the ''DANGA'' slipped away with the result that the deceased rolled down the sloppy surface and sustained the injuries. On hearing the noise of the slipping of stones, the accused came out of the house and saw the deceased lying in an injured condition down below the ''DANGA''. He was lifted from there and brought to the house where he ultimately died during the night. It has also been explained that the blood in the clothes, recovered by the Police, was obvious, since the deceased had sustained injuries during the fall from the ''DANGA'' and these clothes were not concealed but kept on the other side of the house. She was not responsible for the commission of the crime; rather, she had given milk and water to the deceased.

Kumari Pushpa (DW-1) has been examined in defence. She states that the deceased, her father, had gone mad. He used to throw stones at the people and beat them. Some-times, he set fire and was twice taken to the Mental Hospital for treatment. The villagers advised her mother to put her thumb impression or signatures on the application to send the deceased to lunatic asylum which her mother refused with the result that the villagers boycotted them. They also sent an application to the Superintendent of Police, Dharamshala and the Havildar, present in the Court, had come for inquiry. On the day of occurrence, she had gone to fetch grass and when she returned at about 2.30 p.m., she found her father lying on a cot in the house. On enquiry, he told her that he was sitting on the retaining wall from where stones slipped and he fell down followed by other stones over him. He was having injuries on his arms and legs. Her elder brother had gone with the deceased to Mental Hospital Amritsar. The deceased had beaten Krishan Datt, Partapi Devi, Smt. Bhagti Devi, Pawan Kumar and Smt. Sharda with Danda and stones and they received bleeding injuries. She identified Parkash Chand, A.S.I, to be the Havildar who had come to the village for enquiry. She also denied that she ever told the accused not to beat the deceased and beat her instead. She also denied the suggestion that the accused has thrown stones over the deceased after he had fallen down from the ''DANGA''. According to her, except the accused and the deceased, none else was in the house.

Parkash Chand (A.S.I.) (DW-3) has also supported Kumari Pushpa (DW-1) in the sense that in May, 1978 he was Head Constable in Police Post Dehra. During this time, Rirku Ram of village Kahru had made an application against Badri Ram that he had threatened to beat him. This application was signed and thumb marked by other villagers, as there was an allegation of beating of other villagers also by the deceased. Legal action was prayed for against the deceased. Pardhan of the Panchayat had also complained against the deceased that he was a quarrel some man and had caused breach of peace in the village. He had gone for enquiry in the village. He came to know in the village that the deceased was not present for the two months, since he had gone to Amritsar. So, he could not do any thing except that he came to know from the villagers that Badri Ram was mentally deranged.

Now, let the evidence of the prosecution be examined and assessed to ascertain whether the acquittal recorded by the trial Judge is legally sustainable in view of the evidence on record.

Krishan Datt (PW-2) was given the information by Amrit Ram, Member Gram Panchayat, and he was asked to report the matter to the police. His statement shows that he was not told precisely as to who had actually killed the deceased. He admits that the deceased was mentally deranged and used to abuse others for nothing. He also admits that a year back from the day of the incident, people had assembled and planned to file a complaint to the Deputy Commissioner about the mental condition of the deceased, but they were not supported by the accused and her daughter, with the result that the complaint could not be initiated, This means that this witness has no personal knowledge nor he was given the name of the accused by Amrit Ram (PW-3), who in his own statement states that he was informed by Smt. Sheelan and Sharda that the deceased had been murdered by the accused. On hearing this, he went to the house of the accused where he found that the dead body of the deceased was lying naked and the family members were making preparations for cremation. He noticed injury marks on the head, arms and other parts of the body of the deceased. He sent Krishan Datt (PW-2) to lodge the report and asked the family members of the deceased not to cremate the dead body till the Police reached. After the information was conveyed, the Police reached in the evening. According to him, there used to be quarrel between the deceased and his wife and the deceased used to give beatings to the accused. Although he denies that the deceased was not suffering from any mental ailment, yet he could give no reason why the deceased used to abuse and beat others. He contradicts Krishan Datt (PW-2) when he states that no complaint against the deceased was ever initiated or that the family of the deceased was boycotted by the villagers. He admits that the family members of the deceased did not object when he told them not to cremate the dead body till the arrival of the Police. He also admits that Krishan Datt (PW-2) was simply asked by him to report the matter to the Police that Badri had been killed. This shows that this witness did not have exact information as to who killed the deceased; otherwise, it was quite natural for him to have conveyed to Krishan Datt (PW-2) the name of the assailant as the same was necessary for reporting the matter to the Police. He is thus a witness whose testimony cannot be considered to be dependable at all.

Then comes Smt. Shellan Devi (PW-4). She states that on 10th or 9th September, 1978, she heard some sort of quarrel going on in the house of the deceased between the deceased and his wife Smt. Kaushalya Devi. The deceased cried loudly and said "LOKO BACHAO MARI DITTA MARI DITTA". At that time, Kumari Pushpa, daughter of the deceased was saying and requesting the accused not to give beatings to the deceased and was insisting that instead of beating the deceased, she should be beaten. However, the accused asked her daughter Smt. Pushpa Kumari that she should keep aside, so that she could settle scores with the deceased for ever by finishing him. The deceased ran out of the room followed by the accused and when he reached near the ''DANGA'', the accused pushed him down. The accused threw a stone which hit the head of the deceased. At this time she was standing in her court-yard from where the house of the deceased was visible. In cross-examination, she admits that in between her house and the house of the deceased there is cultivated land and the distance is forty yards. She also states that maize crops as well as trees were there in between this area and during those days maize crop was standing in the fields. This witness is equally unreliable for the reasons that the version given by her as to the utterances of the deceased, presence of Kumari Pushpa, manner of beating are absolutely contradicted by the other witnesses of the prosecution. Further, it cannot be said that she witnessed the incident as she narrates, since in the month of September maize crop is very high. Secondly, there were number of trees in this area. In such a situation, it was impossible for her to hear the cries as well as witness the incident as she has stated in her version. More over, she has also made a number of improvements in her version. Besides, her conduct is questionable in the sense that she did not come to help the deceased nor visited his house after the incident.

Shri Agya Ram (PW-5) is another witness of the prosecution examined to prove the statement (Ext. PW-5/A), recoveries of clothes like shirt, Pazama and Chadar stained with blood (Ext. P-l to Ext. P-3). These recoveries are quite insignificant, since the clothes in question were recovered from a place that was open and easily accessible. Presence of blood stains was obvious since the deceased had sustained injuries and these facts have not been denied even by the accused.

Pawan Kumar (PW-6) is an important witness of the prosecution. He states that when he went to his cow-shed, he found the deceased sitting and blood was oozing out from injuries on his head and person. On his enquiry, the deceased told him "KI MUJE KAIJSHALYA MER1 BIBI NE MARA HA1 AUR DANGE SAY DHAKKA DE DIYA HAT. He offered to take him to his house, but the deceased told him that in case he was taken to his house, he would be beaten again by the accused. Then the accused and Hari Chand came there and all of them took the deceased to his house.

n cross-examination, he admits that he did not talk to anybody about the aforesaid talk of the deceased. The version of this witness appears to be exaggerated. It is strange that he did not tell any one about the facts that were given to him by the deceased. The accused has admitted the presence of Pawan Kumar but not of Hari Chand. According to her explanation, Pawan Kumar came to the place at a subsequent stage and helped her in bringing the deceased to her house. In case Hari Chand was present, prosecution has failed to examine him in this case.

Smt. Kanta Devi (PW-11) found the deceased sitting at the cow-shed of Pawan Kumar with bleeding head injury. Although the deceased requested to put him inside the cow-shed of Pawan Kumar, yet she could not do so, since the accused prevented her from doing so. According to her, the deceased was sitting. This witness has also not narrated the incident to any one which discloses that she had not seen the incident.

Smt. Ram Pyari (PW-12) states that while passing in front of the house of the deceased she heard cries from his house; the deceased was saying "MAT MAARO MAT MARRI; MAAIU DITTA MAARI DITTA". The accused was saying "TUMNE MUJHE TANG HE KAR DIYA HAL AAJ MAINE MAAR HI DENA HAI". This version of hers contradicts the version given by Smt. Sheelan Devi (PW-4). On being declared hostile, she states that she heard Pushpa telling the accused that she should not beat the deceased and instead the accused should beat her. She also admits that when the deceased came near the ''DANGA'', the accused pushed him down and was also hit by a stone which caused bleeding injury. This witness has not only given contradictory version as already observed, but also exaggerated the incident. She has little knowledge about the relationship of the accused with the deceased. Similarly, she had no knowledge about this family''s relationship with the villagers and has no knowledge about his mental sickness. She admits that in between the house of the accused and the house of Sheelan Devi there was standing maize crop, besides, a number of trees. She has changed her version while appearing in the Court. More over, she did not narrate this incident to any one, thereby indicating that she had not seen the occurrence.

Similarly, Smt. Rameshwari Devi (PW-13) has also contradicted other witnesses as to the utterance of the deceased. However, she admits that the deceased had been going to Amritsar for medical treatment.

Equally undependable is the statement of Shiv Datt (PW-14). Equally unacceptable is his version that the court-yard of the deceased was visible from his place, despite the maize crop and the trees in between these two points. He has also made a number of improvements in his version given u/s 161, Code of Criminal Procedure and the one given in the Court.

The medical report is that the deceased died of head injury and rupture of kidney. It does not specifically say as to whether the head injury was responsible for the death or the rupture of kidney. It is, in this way, completely vague as to the exact cause of the death of the deceased. Post mortem examination, conducted by Dr. M.L. Dhar (PW-1), describes the following injuries:

Lacerated wound 4th right Web space 2" in size.

Lacerated wound on back of right elbow 2"xl" in size.

Multiple small lacerated wounds over right for-arm and right leg.

Two lacerated wounds right fronts parietal region 1" each x 1" apart. Huge ecchymosed present over from to parietal and right temporal region. Underlying fracture of right temporoperiatal bone.

Areas of Ecchymosis over front of upper part and lower part of chest.

Ecchymosis over the right lumbar region.

Multiple ecchymosis over right arm and back.

It has been stated by the Doctor that these injuries can be caused in case a man rolls with force from a height of 13 to 14 feet on irregular surface. In cross-examination, he states that it is unlikely that a man of the age of the deceased with the nature of injuries described in the report would cover a distance of twenty-five meters after receiving the injuries.

A perusal of the evidence, discussed above, leaves no manner of doubt that the prosecution witnesses have come forward with contradictory versions. They have not only made improvements in their statements, but have also behaved in a strange fashion. It appears that they were not the eye witnesses to the occurrence. They have been picked up by the prosecution to support its version of the matter and in that process; they have given different account of the whole issue. It is not possible that the accused could have given beatings to the deceased not only in the room where they are alleged to have quarreled, but also by throwing a stone at him after pushing him down the Danga. This is not just possible. Rather, the true occurrence appears to have been narrated by the accused in her explanation u/s 313 of the Code of Criminal Procedure, as well as through the defence witnesses.

In our view, the prosecution has not succeeded in establishing the case against the accused and the acquittal ordered by the trial Court is quite justified. More over, it is an appeal against acquittal. We see no perversity in the approach of the trial Court while appreciating the evidence and acquitting the accused, who is about 71 year old by this time. This appeal fails and is, therefore, dismissed.