State of H.P vs Sant Ram and Another

Deepak Gupta, J.—This appeal by the State is directed against the judgement dated 6.1.1999 delivered by the Learned Sessions Judge, Kangra at Dharamshala in Sessions Trial No.19 of 1998 whereby he acquitted the accused of having committed offences punishable under Sections 302 and 201 read with Sections 34 of the Indian Penal Code.

The prosecution story, in brief, is that the accused Premi Devi was married to the deceased Mali Ram. The relationship between them was not cordial. According to the prosecution, the bone of contention was an amount of Rs.30,000/- which had been received as compensation by Premi Devi on account of the death of their son. It is alleged that the deceased Mali Ram was staking claim to that amount. It is further alleged that Mali Ram was a �Ghar Jawai� and the entire property of his in-laws stood in his name. Sant Ram, the other accused is the son of the accused Premi Devi and the deceased Mali Ram .

Mali Ram, deceased was working as a domestic servant in the house of PW-7, Sh. Davinder Sood, resident of Bodha. According to the prosecution, Sant Ram called his father Mali Ram to their home on 16.1.1998. Mali Ram came home and was never seen alive thereafter. His employer Sh. Davinder Sood made enquiries from PW-10, Ravinder Sood who is also a resident of village Bodha who thereafter, informed the Pradhan. The Pradhan informed the police that Mali Ram is missing and it is rumoured that he may have been murdered .

On receipt of this information, the police visited the house of the accused on 20.1.1998 where they recovered one blood stained mattress. This aroused the suspicion of the police and they interrogated Premi Devi and Sant Ram who made disclosure statements that they had kept the body of the deceased at different places in a field belonging to them. The disclosure statements were reduced in writing and thereafter, at the instance of Sant Ram, accused, the dead body of Mali Ram was recovered. The prosecution also alleged that on 22.1.1998, Sant Ram and Premi Devi, accused produced their own clothes before the police and these clothes were blood stained. They also allegedly produced a knife which was used to hack the deceased Mali Ram to death. Thereafter, on 26.1.1998, police took into possession some blood stained soil, pieces of a burnt gunny bag etc. from the house of the accused.

On the basis of the aforesaid material collected by the police, a case under Sections 302 and 201 read with Section 34 of the Indian Penal Code was filed against the accused. On the basis of this evidence, the accused were arraigned. They were charged with having committed the offences detailed here-in-above. They pleaded not guilty to the charges levelled against them and claimed trial. After trial, the accused were acquitted. Hence the present appeal by the State.

We have heard Sh.Vivek Singh Thakur, learned Additional Advocate General on behalf of the State and Sh.Virender Rathore, learned counsel for the respondents accused .

This is a case of a blind murder and nobody witnessed the occurrence. The entire case against the prosecution is based on circumstantial evidence. The prosecution to prove its case relies upon the following circumstances:

Motive: It is alleged that the accused persons had the motive to kill Mali Ram as relations between them and the deceased were not cordial which is apparent from the fact that though the land was in the name of the deceased, he had been ousted from the properly and forced to work as a domestic servant.

Last Seen: According to the prosecution, the deceased was last seen in the company of the accused persons as is clear from the statements of PW/5 and PW/7 and was never seen alive thereafter.

Recovery of blood stained mattress from the house of the accused: A blood stained mattress was found from the house of the accused which was found to have the same blood group as that of the deceased.

Disclosure statements made by the accused that they could identify the place where they had hidden the dead body of the deceased at two different places.

The actual recovery of the head and body of the deceased at the instance of accused Sant Ram.

Other connecting evidence, i.e., recovery of blood stained articles such as clothing, soil etc.

It is well settled law that in the case of circumstantial evidence, the prosecution is required to prove the circumstances and link them in such a fashion that the chain is complete and the only conclusion which can be reached is that the accused is guilty. No other hypothesis other than the guilt of the accused should be possible .

The Apex Court in Kishori Chand Vs. State of H.P. AIR 1190 SC 2140 laid down the principles relating to cases based on circumstantial evidence in the following terms:

In a case of circumstantial evidence, all the circumstances from which the conclusion of the guilt is to be drawn should be fully and cogently established. All the facts so established should be consistent only with the hypothesis of the guilt of the accused. The proved circumstances should be of a conclusive nature and definite tendency, unerringly pointing towards the guilt of the accused. They should be such as to exclude every hypothesis but the one proposed to be proved. The circumstances must be satisfactorily established and the proved circumstances must bring home the offences to the accused beyond all reasonable doubt. It is not necessary that each circumstance by itself be conclusive but cumulatively must form unbroken chain of events leading to the proof of the guilt of the accused. If those circumstances or some of them can be explained by any of the reasonable hypothesis then the accused must have the benefit of that hypothesis. In assessing the evidence imaginary possibilities have no role to play. What is to be considered are ordinary human probabilities. In other words when there is no direct witness to the commission of murder and the case rests entirely on circumstantial evidence, the circumstances relied on must be fully established. The chain of events furnished by the circumstances should be so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused. If any of the circumstances proved in a case are consistent with the innocence of the accused or the chain of the continuity of the circumstances is broken, the accused is entitled to the benefit of the doubt.

It is in the light of the aforesaid law laid down by the Apex Court that we are considering the various circumstances .

The first circumstance relied upon by the prosecution is that the relationship between the deceased and the accused persons, i.e., his wife and son, were strained. PW/3 Jagdish Chand was a Pradhan of Village Bodha. After him, his wife became Pradhan of the village. He stated that the deceased did not have good relations with his wife Premi Devi. Further according to him, the accused Sant Ram also used to live outside the village and used to come home occasionally .

PW/4 Ravinder Singh is an advocate by profession and is also a resident of Village Bodha. He stated that he knew Mali Ram, deceased. He also knew both the accused persons as they were from his Panchayat. According to him, Mali Ram was working as a domestic servant at Bhawarna whereas Premi Devi used to stay in the village. Mali Ram used to come to the village rarely. He stated that Mal Ram did not have good relations with his wife and son. He also stated that Mali Ram had another son who was working as a conductor. He died in an accident and compensation was awarded to Premi Devi, accused. According to this witness, Mali Ram used to claim a portion of the compensation but Premi Devi refused to give any money to him. He further stated that thereafter, Mali Ram obtained the revenue papers regarding his land from the Patwari with the purpose of selling the same. This witness also stated that Mali Ram had made an oral complaint in this regard to the Panchayat. The only cross-examination in this regard is that no such complaint was made by Mali Ram. He denied the suggestion that Mali Ram and Premi Devi had good relations .

PW/5 Geeta Devi stated that about three days after �Lohri�, she had gone to the house of Mali Ram, Premi Devi and Sant Ram. According to her, she counselled them and asked them to adjust properly with each other. This is her entire statement .

PW/7 Davinder Sood is the employer of Mali Ram, deceased. He stated that Mali Ram worked with him as a domestic servant for about 10 years. According to this witness, Mali Ram did not have good relations with his wife and children. According to him, Mali Ram had told him that he (Mali Ram) had not been allowed to participate in the marriage of his daughter. Further according to him, just before �Lohri�, Sant Ram, accused came to call Mali Ram and told the witness that Mali Ram would return after �Lohri�. This witness was examined on other aspects but there is no cross-examination in regard to what he has stated about the relations between Mali Ram and his family .

From the aforesaid evidence, it is apparent that Mali Ram did not have cordial relations with his wife and son but it is also a fact that he was visiting his house off and on. The allegation that Mali Ram wanted to sell the land which was in his name as �Ghar Jawai� has however not been proved. It is however proved that there was some dispute between Mali Ram and his wife. Therefore, it can be said that all that is proved is that the relationship between the accused and the deceased was strained and nothing more .

The next circumstance relied upon by the prosecution is that the deceased was last seen with the accused persons. PW/7 Davender Sood who was the employer of Mali Ram, deceased clearly stated that just before �Lohri�, Sant Ram had come to Bhawarna and had called Mali Ram to their village. PW/5 Geeta Devi also stated that she came to the house of the deceased three days after the �Lohri�, i.e., on 16.1.1998 when she counselled the accused and the deceased to adjust with each other. Nobody saw the accused thereafter. It is apparent that the accused was last seen in his own house in the company of the accused persons .

PW/4 Ravinder Singh is a witness to the recovery of mattress (Khind), Ext.P/12. According to him, on 20.1.1998, he met the police and accompanied them. The house of the accused was searched and a blood stained mattress was recovered. This mattress was sealed and taken into possession vide memo Ext.PW4/A. According to him, both, he and Rumi Ram had signed the recovery memo. In cross-examination, he stated that he does not remember whether the personal search of the police officials took place before the search of the house of the accused. This is irrelevant as far as the recovery of the mattress is concerned. A mattress cannot be kept hidden on the person of any police official. This witness also stated that the room occupied by Premi Devi was barely 10� x 10� and the kitchen was 4� x 6�. According to this witness, the entire room was searched on that day. There is virtually no cross-examination with regard to the recovery of the mattress, in question. This mattress was sent for chemical examination and as per the report, Ext.PX, human blood of Group �A� was found on the mattress. Therefore, the recovery of the mattress has been proved .

The next important circumstance relied upon by the prosecution is the disclosure statements, Ext.PW4/B and Ext.PW4/C made by the accused persons u/s 27 of the Indian Evidence Act. The dead body of the deceased was thereafter recovered at the instance of the accused and therefore, according to the prosecution, these disclosure statements combined with the recovery of the dead body are sufficient to convict the accused .

One of tHe main grounds relied upon by the learned Trial Court to discard these disclosure statements is that though the statements are made by the two persons separately but their language is identical and they are identical copies of each other. There is no denial of the fact that the disclosure statements are virtually identical. In both the statements, it is stated that the two accused persons had taken the parts of the body of the deceased and had buried the same at two separate places and they alone are aware about the spots where the body parts of the deceased were buried .

According to PW/4, Ravinder Singh and PW/16, Investigating Officer, these statements were recorded in the same dialect and exactly as per the version of the accused persons. The learned Trial Court held that this does not appear to be true since the accused could not have been aware as to which part of the statement would be admissible and which would not be admissible and such a person would have made a detailed disclosure statement and not only a statement which is admissible u/s 27 of the Act .

We are not in agreement with this finding of the learned Trial Court. When an accused makes a confessional statement only that portion which is admissible has to be read in evidence. The statement of the accused which have been recorded is only with regard to the place where the accused had allegedly hidden the dead body of the deceased. Assuming that the Investigating Officer did not write the other portion of the statement, this does not mean that the statement is untrue or involuntary .

Another reason to doubt the statement is that one of the witnesses, Ravinder Singh (PW/4) was standing at a distance of 10-15 feet when the disclosure statements were being recorded. It is also proved that 40-50 persons from the village had gathered at the house of the accused at the time when these disclosure statements were made. According to the defence, it is not understandable why the statement was got signed from a person who was unable to hear the exact words since he was standing at a distance of 10-15 feet .

The answer to this is simple. PW/4 who has witnessed the statement is an advocate. According to him, he was associated on 20.1.1998 by the police in the investigation. He went to the house of the accused and on the search of the house, a blood stained mattress (Khind), Ext.P/12 was recovered. The police recovered the mattress and memo was prepared and he signed the same. Thereafter, Sant Ram was interrogated by the police. According to this witness, Sant Ram had stated during interrogation that after killing Mali Ram, they had buried his body at two different places, i.e., head at one place and other part of the body at another place in Harkholi in the fields belonging to the accused. He stated that he and Fhandi Ram were witnesses to the statement. He also stated that Premi Devi who was interrogated separately but about the same time made a similar statement and he also signed the disclosure statement made by her. This witness has been cross-examined at great length. He stated that he was standing at a distance of 10-15 feet and could not hear what exactly was told by the accused but he has clearly stated that the accused did state that they had buried the body of the deceased in Harkholi. He then goes on to state that the police recorded the statements made by the accused. He further stated that the disclosure statements were recorded in the same dialect in which they were made by the accused .

We are of the considered view that the learned Trial Court gravely erred in holding that the disclosure statements had not been proved. In fact, the statements, in question, stand proved .

Now we come to the recovery of the body parts of the deceased. According to PW/4, after the accused were arrested and interrogated and made the statements that they had buried the body parts of the deceased in different places in Harkholi, the two accused led the police party towards the place which was about 2� kms. away from the house of the accused. They proceeded to the spot on foot. The police, other witnesses and the accused went to the spot then the accused Sant Ram pointed out the spots where the body parts of the deceased were buried and after digging out the same, the body parts were recovered. Firstly, the body of the deceased was found and then Sant Ram pointed out the place where the head had been buried and then the head of the deceased was also recovered. Clothes on the dead body were burnt. There was a gunny bag lying in the trench which was taken into possession by the police. The photographs of the spot were taken immediately at the spot. First of all, the photographs of the spots as pointed out and then the spots after they were dug up were taken. Then the photographs of the body and head of the deceased were also taken. Thereafter, the inquest report was prepared. PW/4 also stated that when the police alongwith the accused left for the spot, the house was locked. According to him, they reached the place from where the body was recovered between 12 noon to 3 p.m. He admitted that a number of people had assembled there. According to him, till that time, it could not be ascertained which weapon had been used. This is the entire cross examination as far as the recovery of the body parts of the deceased is concerned .

The other witness to the recovery of body parts of the deceased is Sh.Madan Chauhan who at the relevant time was posted as SDM, Palampur. According to him, on 20.1.1998, he received a telephonic message from the DSP, Palampur that a murder has been committed and the body has been buried and, therefore, he should come to the spot. He thereafter, reached village Bodha at about 12.30 p.m by jeep. The police and a large number of people of the area were present there. The accused were also present there at that time. This witness was informed that the accused had told that the body was buried at a distance of 2� kms. Then this witness alongwith the police and other persons accompanied the accused to the place where the body was buried. When they reached there, Sant Ram, accused went to the place where some bushes had been kept. He then dug out the place and a headless body was recovered which had burnt clothes on it. Thereafter, Sant Ram, accused identified the spot where the head had been buried and after digging out the same, took out the head. The photographs were taken and memo, Ext.PW4/D was prepared with regard to the recovery of the dead body. In cross-examination, he stated that when he reached village Bodha, there was talk amongst the villagers that the body of the deceased had been buried about 2� kms. from there. He however, denied the suggestion that from the talk of the villagers, the exact place where the body was buried could be deciphered. This is the entire cross-examination of this witness .

From the statements of these two witnesses, it is more than apparent that both the accused led the police party and the witnesses to the place where they had buried the body parts of the deceased. Thereafter, accused Sant Ram identified the particular places where the body parts were buried and the only argument made on behalf of the accused is that the villagers knew by this time that the body was buried in that area and it cannot be said with certainty that it was the accused alone who knew where the body was buried .

In our opinion, this argument is totally without merit. After the accused had made the disclosure statements that the dead body had been buried in Harkholi, the villagers may have rushed towards Harkholi. The accused made the disclosure statements not in a closed or confined place but at a place where a large number of people have gathered. The villagers would have known what is the area referred to as Harkholi. A murder in a remote area arouses the interest of every person and every villager wants to get involved and there is nothing extraordinary in the villagers having reached the area prior to the police and the accused. However, both the witnesses have clearly stated that it was Sant Ram who specifically pointed out the spot where the body of the deceased was buried and the spot where the head was buried. The exact place where the body was buried could only have been known to the person who buried the same and to nobody else. The learned Sessions Judge, in our opinion, gravely erred in holding that the recovery of the body has not been proved .

It is true that like in many other cases, the police has been over-zealous and the recoveries of the knife etc. which have taken place after 20.1.1998 cannot be said to be proved in accordance with law. Admittedly, on 20.1.1998, the accused was arrested. The room, as pointed out above, was only 10�x10� and the kitchen was only 4�x6�. The police must have searched the room and the kitchen thoroughly and it cannot be believed that after 20.1.1998, some other articles such as knife and blood stained clothes were recovered from the premises of the accused. The prosecution has, therefore, failed to prove the recovery of the weapon of offence and other connected material which was allegedly recovered after 20.1.1998 .

Sh.Vivek Singh Thakur, learned Additional Advocate General contends that from the circumstances proved on record, it can be said without any manner of doubt that it is the accused alone who murdered the deceased .

Sh.Thakur has placed reliance on the judgment of the Apex Court in State of Rajasthan Vs. Kashi Ram 2006(12) SCC 254 wherein it was held that if the accused fails to give satisfactory explanation to the incriminating circumstances which were specially in his knowledge then the provisions of Section 106 of the Indian Evidence Act are attracted and thus if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company with the deceased .

To the similar extent is the judgment of the Supreme Court in Balram Prasad Agrawal Vs. State of Bihar and others,

On the other hand, Sh.Virender Rathore, learned counsel for the accused submits that no disclosure statements were made by the accused and the disclosure statements, if any, are not voluntary. According to Sh.Rathore, the accused were in fact, taken into custody on 19.1.1998 but the arrest was shown to have been taken place on 20.1.1998. It is further alleged that the accused were beaten up and forced to make disclosure statements. It is also alleged that 40-50 persons had gathered at the spot and, therefore, the disclosure statements cannot be relied upon. In this behalf, reliance has been placed on the statement of PW/3 Jagdish Chand who was the ex-Pradhan of the area. According to him, on 19.1.1998, the villagers had complained that Mali Ram had come to his house but had not been seen for the last 3-4 days. Further, there was a rumour that there was some dispute at night and Mali Ram may have been killed. He stated that thereafter, he telephoned the police at about 9.30 or 9.40 p.m and the police reached at about midnight but they went back as it was too late and next day, they came in the morning of 20.1.1998 and went to the house of the accused. Even if the statement of this witness is accepted, according to him on 19.1.1998 when the police came, they did not go to the house of the accused. No material is placed on record to show that the police took any action on 19.1.1998. At that time, this was a case of suspicion and nobody had seen any offence being committed and the police after talking to the Pradhan may have decided not to take any further action at night .

Reliance placed by Sh. Rathore on the judgment of this Court in Malkiat Singh & another Vs. State of H.P, Latest HLJ 2009(2) 1104 is totally misplaced. The facts of that case were totally different. In that case, in the disclosure statements, the accused had not given any identity of the land from where the body was recovered. Similarly, the judgment of this Court in Raj Kumar Vs. State of H.P, Latest HLJ 2009(2) 1357 is not relevant to the facts of this case. 34. In Gambhir Vs. State of Maharashtra, the Apex Court held as follows:

The law regarding circumstantial evidence is wellsettled. When a case rests upon the circumstantial evidence, such evidence must satisfy three tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

In the present case, we find that certain circumstances have been proved against the accused as held by us above. The prosecution has been able to prove that the deceased did not have cordial relations with his wife and son. It is also proved that the accused was last seen in his own house in the company of the accused persons. Most importantly, the accused persons have not given any explanation as to when the deceased left the house .

Section 106 of the Indian Evidence Act reads as follows:

Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

There is no doubt about the fact that just before �Lohri�, the deceased accompanied the accused, Sant Ram to his house. He was seen there by a number of persons and last stayed there. Therefore, it is the accused alone who could give an explanation as to when the deceased who is the husband of one accused and the father of the other left the house .

In Kashi Ram�s case supra, the Apex Court held as follows:-

It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatiable with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Mad 218 .

There is considerable force in the argument of counsel for the State that in the facts of this case as well it should be held that the respondent having been seen last with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since, the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by Section 106 of the Evidence Act. This circumstance, therefore, provides the missing link in the chain of circumstances which prove his guilt beyond reasonable doubt.

Another very important aspect is that the prosecution has proved the disclosure statements Ext.PW4/B and PW4/C. The mere fact that the wording of these two statements is virtually identical does not mean that they were not made by the accused. The disclosure statements are one line statements wherein the accused have only stated that both of them had hidden the body of the deceased which was in two pieces at two different spots at Harkoli and these two persons alone knew about such spots. Short statements like these, especially when recorded in the local dialect, can be identical. The disclosure statements have been proved by PW/4 who is an Advocate and we have no reason to doubt his statement .

The most important circumstance which the prosecution has proved to the hilt is the recovery of the body parts at the instance of the accused. This has been proved not only by the statement of PW/4 who is an advocate but also by the statement of PW/6 who was the SDM of the area at the relevant time. Even if the statements of other witnesses are not taken into consideration, the statements of these witnesses clearly prove beyond doubt that the accused led the police officials and the witnesses to the spot, in question and identified the exact place where the body was buried and then identified the exact spot where the head was buried .

We have already held above that the mere fact that a number of people had gathered at the spot does not show that the recovery of the body parts of the deceased was not made at the instance of the accused. It was only the person who had buried the body parts who could have identified the exact spots .

The prosecution has proved the circumstances to the hilt. These circumstances clearly show that the deceased was having strained relations with his wife, he was called by his son and went to the village and was last seen in the company of his wife and son in the village. He was never seen thereafter and there is no explanation by the accused in this regard. The prosecution has also proved the disclosure statements and the recovery of the body parts of the deceased pursuant to the disclosure statements at the instance of the accused. These circumstances, in our view, are sufficient to hold both the accused guilty of having murdered the deceased Mali Ram and also of having caused disappearance of the evidence of the offence. Therefore, the accused are held guilty of having committed offences punishable under Sections 302 and 201, IPC .

In view of the above discussion, we set aside the judgment of the learned Sessions Judge, Kangra at Dharmashala acquitting the accused and convict the accused of having committed offences punishable under Sections 302 and 201 read with Section 34 of the Indian Penal Code .

Now to hear the accused on the issue of quantum, the matter be listed on 7.1.2011. The bail bonds of the accused are cancelled and they be produced before us on the said date.