State
of Himachal Pradesh Vs. Prem Chand [2002] Insc 546 (16 December 2002)
S. Rajendra
Babu & P. Venkatarama Reddi.Rajendra Babu, J. :
J U D
G M E N T
The
respondent was charged for offences under Sections 302, 307 and 382 of the
Indian Penal Code (for short 'IPC') for committing murder of Dhobi Devi and Madhu
Devi and attempting to commit the murder of Pawan Kumar (PW 4), causing him
grievous injuries and for committing theft of ornaments belonging to Dhobi Devi
and her daughter-in-law Kanta Devi from the house of Majnu Ram.
The
prosecution case, in brief, is that on 10th February, 1992, the respondent came
to the house of Dhobi Devi in the evening and took his meals in the company of
Dhobi Devi, Madhu Devi and Pawan Kumar; that Geeta Devi, wife of Udho Ram, came
to fetch milk from the house of Dhobi Devi and when she asked about the
whereabouts of the man sitting near the hearth, Dhobi Devi informed her that
the respondent is the real brother of her brother-in-law; that the respondent,
after taking meals, slept in the company of Pawan Kumar whereas Madhu Devi, a
minor aged about 3 years, slept with her grand-mother, Dhobi Devi; that in the
morning on 11th February, 1992, the respondent, after taking tea, left the
house; that on the same day, the respondent again came to the house of Dhobi Devi
late at night; that since there was a dog, the respondent asked Dhobi Devi to
tether the dog; that after doing so, Dhobi Devi asked as to who was giving the
calls and the respondent replied that he was the same person who had come to
her house the previous night; that the respondent was asked by Dhobi Devi about
his meals and he said that he had his meals but indicated his willingness to
have 'kheer'; that Dhobi Devi prepared 'kheer' which was taken by the
respondent, Madhu Devi and Pawan Kumar; that thereafter Madhu Devi slept with
Dhobi Devi and Pawan Kumar slept with the respondent who was the real uncle of Pawan
Kumar; that in the night the respondent gagged the mouth of Pawan Kumar and
gave 'danda' blows to Dhobi Devi and immediately, Dhobi Devi called upon Pawan
Kumar to free the dog which was tethered; that Pawan Kumar took out the muffler
from his mouth and ran towards the stairs and when he had hardly covered two to
three stairs the respondent noticed him and caught hold of him from the neck
and caused injuries on his head with the help of iron pipe; that thereafter Pawan
Kumar was caught hold of and his neck was put on the threshold of the door and
the respondent caused injuries on his neck by a 'darati'; that the respondent
after committing the murder of Dhobi Devi put a bundle of quilts on Dhobi Devi
and her minor grand daughter Madhu Devi aged about 3 years who was sleeping
with her; that Madhu Devi being a small child was not able to bear with the
weight of quilts or remove the same and died of suffocation; that the
respondent also inserted 'sansi' in the rectum of Dhobi Devi; that thereafter
the respondent searched the boxes and took the entire jewellery of Dhobi Devi
and her daughter- in-law Kanta Devi and fled away from the scene of crime; that
Kanta Devi on the fateful day had gone to village Majherns to see her off in
her in-laws house; that husband of Dhobi Devi and her son, Krishan alongwith
the mother of Pawan Kumar, Lila Devi had gone to Kullu; that on the intervening
night of 11th and 12th February, 1992 the only occupants in the house were
Dhobi Devi, Madhu Devi and Pawan Kumar. Ajudhia Devi, a neighbour, who visited
the house of Dhobi Devi to give water to the buffalo belonging to her which she
had tethered in the cow-shed of Dhobi Devi found that there was no response to
her calls to Dhobi Devi and saw Dhobi Devi and Madhu Devi underneath the bundle
of quilts and injured Pawan Kumar laying in a serious condition; then she
raised alarm that someone had killed Dhobi Devi and her children and thereupon,
Prem Chand, husband of Ajudhia Devi, heard the cries and came to the house of
Dhobi Devi and found that Pawan Kumar was still breathing and removed the
bundle of quilts and found that Dhobi Devi and Madhu Devi were dead. Prem Chand
immediately informed the Pradhan Udho and thereafter both of them went to the
police station and reported the matter. Pawan Kumar was shifted to the hospital
at Palampur and after being treated in the hospital, he made a statement that
Dhobi Devi and Madhu Devi had been killed by the respondent and he had been
caused injuries by his 'Chachu' Prem Chand. On this when the respondent was
interrogated he made a disclosure statement resulting in the recovery of
ornaments kept concealed in his house. Thereafter, the Investigation Officer
sent the dead bodies of Dhobi Devi and Madhu Devi for post mortem examination
after conducting the necessary inquest. Pawan Kumar, PW 4, was aged about 10
years and was found competent witness. He reiterated what has been narrated by
us earlier. He was very clear in his evidence as to the identity of the
respondent who was present in the court and also clearly identified him in the
court. It is on the basis of his evidence and other material on record through
the evidence of other witnesses, the learned Sessions Judge, Kangra Division,
found that the prosecution had been able to prove the following points against
the respondent :-
1) On 10-2-1992 and on 11-2-1992, the accused came to the house of
Dhobi Devi, the deceased;
2) Pawan
Kumar, the injured witness was living in the house of Dhobi Devi and this fact
has been admitted by the accused;
3) Pawan
Kumar received grievous injuries seven in number from the hand of the accused;
4)
Accused is the real "Chacha" of Pawan Kumar and he made no mistake to
identify the accused on both the occasions i.e. 10-2-1992 and 11-2-1992;
5) The
accused, after committing murder of Dhobi Devi and Madhu aged three years
caused grievous injuries to Pawan Kumar, removed the jewellery from the house
and silently left the house during the intervening night of 11th and 12
February, 1992;
6) The
ornaments, which were removed by the accused from the house of Dhobi Devi after
committing the double murder, were got recovered by him after making the
disclosure statement from his house;
7) The
ornaments have been duly identified by Kanta Devi (PW 8) in the presence of the
Executive Magistrate, Shri Salig Ram (PW 10);
8) The
accused was arrested on 13.2.1992 when the name of accused was disclosed by Pawan
Kumar from his house. The arrest has been admitted by the accused;
9) The
accused after committing the murder put bundle of quilts on the bodies of Dhobi
Devi and Madhu, aged about 3 years. Madhu died due to suffocation as per report
of Doctor. Madhu being a little child, it was not possible for her to remove
the weighty quilts from her body and died;
10) It
is also proved on record that death of Dhobi Devi is homicidal as testified by
PW 1 Dr. V.P. Sood;
11)
That the injuries were ante-mortem and were sufficient to cause death in the
ordinary course of nature;
12)
The Doctor further clarified that the suffocation could be caused by blocking
the nose and mouth with the help of hand or otherwise by placing quilts and
clothes, etc. upon Madhu, deceased.
On the
basis of this conclusion, the learned Sessions Judge found that the case was
established that Prem Chand, the respondent, alone had committed the murder of
Dhobi Devi and Madhu Devi and caused grievous injuries to Pawan Kumar and
removed the jewellery; that the said conclusion was beyond any reasonable
doubt. After hearing the respondent on sentence the learned Judge felt that the
murders had been committed by the respondent in a ghastly, fiendish and
gruesome manner of his victims who were helpless and attempted to kill Pawan
Kumar for gain. Holding this case falls in the category of rarest of the rare
cases, the learned Sessions Judge convicted the respondent and sentenced him to
death and made a reference to the High Court for confirmation of the same.
The
High Court took up the criminal reference and criminal appeal together for
consideration. The High Court held as under:
"After
going through the material evidence against the appellant, consisting of
testimony of PWs 1, 2, 4 to 8, 19 and 20, we do find that there is some amount
of consistency in their evidence which could have been based for the conviction
of the accused. However, mere congruity or consistency is not the sole test of
truth. The force of the evidence does not depend merely on the credit attached
to the 'factum probandam' but to the result by which process of reasoning, it
indirectly establishes in the mind of the Judge. Of course, if direct evidence
is credible, it is superior to any other class and more satisfactory to the
judicial mind. However, it must be borne in mind how easy it is to fabricate
direct evidence. For example, how simple a matter it is for a witness to swear
falsely; "I saw "A" dealing the fatal blow". It is also
stated that circumstances cannot lie.
It is
also equally fallacious as appears from every day's experience.
Circumstances
do lie most cruelly. The innocent often succumbs to the unfounded suspicions
from circumstances which appears to tell strongly against him the true bearing
which the accused has neither the opportunity nor often means to explain. The
truth is that either kind of the evidence whether direct or circumstantial, has
its peculiar advantages and defects. Sometimes even falsehood is given an
adroit appearance of truth, so that truth dis-appears and falsehood comes on
the surface.
The
instant case appears to be one of those cases. There are many inherent
improbabilities in the prosecution case so far as the participation of the
appellant is concerned.
The
entire case hinges upon the direct and circumstantial evidence. The central
evidence consists of PWs 4, 5, 6, 7, 8, 19 and 20 besides the medical evidence
consisting of PWs 1 and 2. The motive alleged by the prosecution is theft.
Further the incident is stated to have been witnessed by Pawan Kumar (PW 4) an
injured person. It is needless to say that when there is acceptable evidence of
the eye witnesses to the commission of an offence the question of motive cannot
loom large.
However,
the Courts cannot lose sight of the fact that when motive forms an integral
part of the prosecution case and circumstances depicted by the factual position
existing at the spot through the documentary evidence does not corroborate the
testimony of the eye witnesses, then the prosecution story becomes doubtful and
hence unacceptable. In the instant case, no doubt, PW 4 Pawan Kumar an injured
person, should, ordinarily, be the most competent and reliable witness but the
question is as to whether he falls in that category. We answer it in the
negative." The High Court merely took into consideration the site plan
Exhibit PW 20/A and referred to various positions of different rooms and place
where the four beds were kept. The High Court on that basis, which was not the
case of defence either, tried to make out a case and proceeded to suspect the
evidence tendered before the court. This conclusion of the High Court is based
upon the fact that the building in which the occurrence took place is a double storeyed
building; that each storey had three rooms; that there were four beds lying at
place where both the deceased and the injured were sleeping at places marked in
the sketch; that if really Pawan Kumar was sleeping with the respondent and Madhu
Devi with her grand-mother Dhobi Devi, there would have been only two beds and
not four and this document therefore proved that the testimony of Pawan Kumar
was doubtful. The High Court proceeded further to analyse the evidence tendered
by PW 4, Pawan Kumar with meticulous detail and as to where the 'masala ghotne
ka danda' (P-10) and hollow iron pipe (Exhibit P11) stained with blood had been
found at place. The High Court also differed as to when the respondent began to
give blows to Dhobi Devi and Madhu Devi and why the respondent should have
intended to kill Pawan Kumar by inflicting 'darati blow on his neck. The High
Court found it difficult to believe that the injury inflicted on Pawan Kumar
within a few seconds after attacking Dhobi Devi with a new kind of weapon
namely a hollow iron pipe and it is difficult to think that he could change the
weapon within a few seconds. It was not possible for the respondent to pick up
the pipe from kitchen and use it as a weapon of offence.
The
above sequence of facts narrated by PW 4 in his testimony appeared to the High
Court to be unnatural. It is on this basis the High Court concluded that the
evidence of eye witness PW 4 was not worthy of belief. The High Court also
disbelieved the recovery of apparel of the respondent as well as the other
evidence and noticed that the circumstances indicating commission of theft in
the form of scattering of clothes etc. were existing at the scene of occurrence
and further commented as to why these facts were not indicated in the inquest
report despite the fact that it formed integral part of the offence committed
by the respondent as was the case of the prosecution. The High Court concluded
that death was not caused in consequence of the use of various weapons by one
man - the respondent and held that prosecution had not been able to establish
the case and, by giving the benefit of doubt, acquitted the respondent. Hence,
this appeal has been filed by special leave.
As the
respondent was not represented, we requested Shri P.V.Dinesh, Advocate, to act
as amicus curiae. He has contended that PW.4, the injured witness, who is also
the eye witness to the incident, is not worthy of belief. He pointed out that
when he was sleeping with the accused, the accused gagged his mouth with
muffler and thereafter inflicted a danda blow to Dhobi Devi, the deceased. When
PW.4 heard the sound of Dhobi Devi directing him to free the dog, he took out
the muffler from his mouth and ran towards the stairs by the time the accused
caught hold of him and inflicted injuries. It is contended that the statement
cannot be true because he had also stated in the course of cross- examination
that he woke up when he heard the cries of his grandmother and moreover he lays
emphasis on the presence of one Ramesh, who had visited the house of Dhobi Devi
on 10.2.1992. However, the prosecution has not made any attempt to identify who
Ramesh is, particularly when on the second day, they heard a call to release
the dog and when they asked him as to who the caller was, he stated that he was
the same person who had come the previous day and, therefore, it was absolutely
necessary to identify who that Ramesh is. He further submitted that PW.4 could
have mistaken that his Chacha was involved in the incident and he had hardly
seen the accused. In his life, only twice PW.4 has seen his Chacha, that is, on
the nights of 10th and 11th
February, 1992 and in
the absence of Test Identification Parade, the identity of the accused was not
properly established. He also contended that PW.4 regained consciousness in the
hospital between 1 and 2 p.m. the next day and at that time PW.4 had told that
his Chacha has committed the offence and it is also the case of the prosecution
that PWs.5, 6 and 7 have come to know about the offence at about 9 p.m. and
they saw the injured PW.4 in a very serious condition and the prosecution has
not explained as to why they took three hours to take PW.4 to the hospital.
PWs.5, 6 and 7 also did not make any attempt to hospitalise PW.4 though his
condition was so serious. Another discrepancy the learned amicus curiae has
tried to point out, is that PW.4's deposition that his mouth was gagged with
the help of muffler is an improvement as no such statement had been made by him
to the police and that course was adopted only to see that he should not be
asked the question as to why he did not make any noise at the time of the
offence to draw the attention of the neighbours. He submitted that the accused
has three names and, therefore, whether PW.4 had identified the accused
correctly is also doubtful. The medical evidence is also contrary to the
evidence tendered by PW.4 inasmuch as he has stated that he was hit by blunt
weapon whereas the doctor stated that injury no. 3 was with "margins so
regular and well defined covered with blood clots." He further drew our
attention to the fact that the accused visited on the 10th night and left the
house on 11th morning and again came back on the night of 11th. The motive
attributed by the prosecution is theft and if the accused had an idea to commit
theft he could have done the same on the 10th itself. The explanation offered
by the prosecution is that his presence was made known to PW.6 when he left the
place. PW.6 also could not also properly identify the accused. He commented
upon the recoveries having been effected of the blood stained clothes and the same
were of the accused.
The
accused had been arrested in the presence of Binda who was the father of PW.4
and also the brother of the accused, but he was not examined as a witness in
the case. He, therefore, contended that the manner in which the accused was
stated to have been apprehended by PW.19 is doubtful due to many circumstances.
The recovery of stolen articles and silver ornaments would not establish
anything because the value of the same being very little, the accused would not
commit such a heinous offence. He contended that the offence could not have
been committed by a single person because there was double murder and different
kinds of weapons had been used in different rooms.
Though
PW.4 is a child witness, he has been clear and cogent in giving his evidence. Inspite
of being put to severe cross-examination he has come out clean and he has stuck
to the statements made by him. Whether he woke up at the call of his
grandmother is a matter which can be understood because what he has stated
earlier was that when his grandmother was calling him to release the dog and
when he was about to run, he was beaten and by that time the accused had
already inflicted 'danda' blow to Dhobi Devi. Therefore, the version given by
him is a consistent with what he has stated earlier. The attempt of the learned
amicus curiae to attach importance to the presence of one Ramesh on 10th February 1992 cannot assume any significance
because PW.4 is categorical in identifying the accused as having committed the
offence. When he had clearly seen the accused at least on two occasions whom he
had known to be his Chacha there was no need to hold further Test
Identification Parade. In what condition he was at the time when PWs.5, 6 and 7
saw him or whether he could have removed him to hospital and what facilities
they had will not militate against the evidence tendered by PW.4 before the
court. The contention that PW.4 having been gagged in the mouth with a muffler
was not stated earlier but an improvement made before the court is not very
material as it is a detail of minor nature. The visit of the accused on the
10th February 1992 night appears to us only to survey the situation and after
ensuring himself that it was possible for him to commit the crime, he returned
the next day. Non-examination of Binda, father of PW.4 and the brother of the accused,
will not carry the matter any further because their evidence would not
establish any connection with the crime committed by the accused. Fact remains
that the accused had been apprehended and produced before the court. In this
background, we find no merit in any of the contentions advanced by the learned
amicus curiae on behalf of the respondent.
The
learned counsel, however, pleaded that in the special features of this case, in
the event we did not agree with him, the sentence to be imposed upon the
accused should not be capital but the lesser one. Relying upon the decision of
this Court in Suresh vs. State of U.P., 1981 (2) SCC 569, the learned amicus
curiae submitted that when the prosecution case is based solely on the evidence
of a child, who is stated to be present at the time of occurrence of the
offence and was injured by the accused and owing to his state of mind and state
of his body, his testimony though reliable as regards conviction but need not
be acted upon as regards imposition of death sentence and therefore urged that
the death sentence may be reduced to the lesser punishment.
The
High Court, by examining the evidence with reference to the rough sketch
prepared by the I.O., drew an inference that there should have been two beds in
the room if the evidence of PW.4 is to the effect that he was sleeping with the
respondent and that three-year old Madhu Devi was sleeping with her grandmother
is to be believed. In Tori Singh & Anr. vs. State of U.P., AIR 1962 SC 399,
this Court had occasion to consider the admissibility of a plan drawn to scale
by a draftsman in which after getting information from the witnesses where
exactly the assailants and the victim stood at the time of commission of the
offence, the draftsman put down the places in the map, it was held that such a
plan drawn to scale was admissible after the witnesses corroborated the
statements of the draftsman that they had shown him the places and would not be
hit by Section 162 CrPC. Another sketch also had been prepared in that case by
the Sub-Inspector on the basis of what the witness had stated to him but the
same was ruled as inadmissible in view of Section 162 CrPC. The sketch/map in
the present case has been prepared by the I.O. and particularly when no
evidence has been adduced with reference to the sketch by the witnesses such
statement even if admissible in evidence and is not hit by Section 162 CrPC,
still it cannot be of much use unless some of the witnesses state as to the
state of affairs at the scene. No such attempt has been made nor evidence has
been adduced through any of the witnesses. Therefore, we think that the caution
indicated in that decision should be borne in mind.
The
High Court held that as the site plan indicated that there were four beds, the
testimony of PW.4 has become doubtful. It is difficult to accept the view taken
by the High Court that when the clear evidence tendered by PW.4 is to the
effect that the small child of three years was sleeping with her grandmother
and that PW.4, who is nephew of the respondent, was sleeping in the same bed,
it would not mean that the existence of the other two beds could be doubted. In
that view, the High Court has attached undue significance to this aspect of the
matter and has misled itself. PW.4 who is a very young boy, was an inmate of
the house on the fateful day was seriously injured and Dhobi Devi and Madhu Devi
were murdered by the respondent. The fact that PW.4 sustained injuries on that
day cannot be seriously disputed. The circumstances in which PW.4 sustained
those injuries have been clearly explained by him and the manner in which the
respondent attacked Dhobi Devi and Madhu Devi and later on himself cannot be
doubted at all. The presence of the respondent on 10.2.1992 is established by
evidence of Geeta Devi. That indicates that the respondent having noticed that
there was an old lady with a small child and PW.4, Pawan Kumar was a young boy,
took the opportunity to do away with them but he could not execute his plan
completely because Pawan Kumar survived, though the respondent had caused him
grievous injuries. PW.4 had in the course of his evidence has clearly deposed
that his "Chachu" has committed the murder of his "Nani"
and sister Madhu Devi and he caused injuries to him with the help of iron pipe
and sickle. PW.4 has in clear and cogent manner described the incidence that
had taken place. When he is related to the respondent there is no reason to
suspect that he had given any tutored version or there is no clarity or
consistency in his evidence. Even discarding the recoveries that are stated to
have been effected, it is clear that there is enough evidence on record to show
that the respondent committed the murder of Dhobi Devi and Madhu Devi as held
by the Sessions Court. But, the High Court, was carried away by figments of
imagination, by incorrectly and unduly relying upon rough sketch of the scene
of crime. We do not think that unless with reference to the rough sketch the
scene was recreated before the court through the evidence of one or the other
witness, the High Court could have placed much reliance upon that aspect.
Therefore,
we have no hesitation in setting aside the order made by the High Court
acquitting the respondent and restoring the conviction passed by the Sessions
Court.
Though
the Sessions Court has imposed death sentence upon the respondent by an order
made on 29.9.1992, the High Court by its judgement dated 28.4.1993 acquitted
him. In view of the following observations of this Court in Suresh vs. State of
U.P. [supra]:
"Children,
in the first place, mix up what they see with what they like to imagine to have
seen and besides, a little tutoring is inevitable in their case in order to
lend coherence and consistency to their disjointed thoughts which tend to
stray. The extreme sentence cannot seek its main support from evidence of this
kind which, even if true, is not safe enough to act upon for putting out a
life". [p.574] and keeping in mind the fact that there is a long time gap
between the date of the murder and conviction now by us and particularly when
in the intervening period there is an order of acquittal in favour of the
respondent, we do not think it is expedient to award the capital sentence upon
the respondent. Therefore, we reduce the sentence to life imprisonment while
upholding the conviction given by the Sessions Court. The appeal is allowed
accordingly. If the respondent is on bail, the same shall stand cancelled and
he shall surrender forthwith to serve out his sentence in accordance with law.
Before
we part with this case, we place on record our appreciation of the valuable assitance
rendered by Shri P.V.Dinesh as Amicus Curiae.
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