Ram Mehar vs State of Haryana

R.L. Anand, J.

Shri Ram Mehar son of Munshi Ram, a young person of 32 years at the time of his conviction has filed the present criminal appeal and has been directed against the judgment and order dated 23.4.1987 passed by the court of Sessions Judge, Sonepat who convicted the appellant under section 302 I.P.C. and sentenced him to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 300/. In default of payment of fine he was directed to undergo rigorous imprisonment for three months.

The brief facts of the case are that accused Ram Mehar faced a charge under Sections 302 and 301 of the Indian Penal Code while his wife Smt. Krishna faced a charge under section 201 of the Indian Penal Code. Both of them pleaded not guilty to the charge and claimed a trial. The story of the prosecutions runs as under :

The deceased in this case is one Hoshiar Singh son of Shri Baru, a Teli by profession and he belonged to village Khidwali District Rohtak. The offences are alleged to have been committed within the area of village Bhainswal Kalan, District Rohtak. According to the prosecution, Hoshiar Singh alias Hoshiara deceased took away Rs. 6,000/ from his home for the purpose of purchasing a buffalo. He came to the house of his sister Smt. Roshni and her husband Shri Ali Sher (PW.12) at village Pipli Khera which is about 10/12 kilometres away from village Bhainswal Kalan. He reached his sister''s home on 22.6.1986. Ali Sher sold his buffalo for a sum of Rs. 4,000/ to him and issued him a receipt Ex.PF for the purpose of transit (rahdari). The receipt was executed by Shri Ali Sher PW. It also bore the thumb impression of Hoshiar Singh deceased and attested by Ved Singh Sarpanch of the village. The deceased kept the receipt Ex.PF and the remaining cash in a purse and started for his village with the buffalo on 23.6.1986. A Mohri Ex.P.6 was tied to the buffalo. Accused Ram Mehar has built his residential kotha in his field at outskirts of the village. The deceased plodded the distance between village Pipli Khera and Bhainswal Kalan during the day. He came to the kotha of accused Ram Mehar in the evening. Smt. Krishna accused was present there. The deceased requested her for shelter for the night. She provided him meals and gave him a cot to rest in the night. The buffalo was tethered nearby. It was at that time that Shri Amar Singh Sarpanch of village Bhainswal (PW.13) happened to pass that way. He saw the deceased lying on the cot outside the house of accused Ram Mehar with buffalo tied nearby. He also saw accused Krishna doing her household work. Ram Mehar came from outstation back in the evening. He made enquiries from Smt. Krishna accused as to why and how the deceased was there. He searched the person of the deceased when he was asleep and found Rs. 1,800/ in his pocket. Ram Mehar took a kassi and killed the deceased with same. He cut his body into pieces. He dug a pit in his field which adjoins his kotha and buried the dead body alongwith the clothes thereof which consisted of chaddar Ex.P.1, Dhoti Ex.P.2 and shirt Ex.P.3. He removed the cash and purse Ex.P.7. The purse contained receipt Ex.PF. Thereafter, he placed the blood stained kassi Ex.P.4, blood stained cot Ex.P.5, empty purse Ex.P.7 contained receipt Ex.PF and Mohri Ex.P.6 in his kotha and locked the same. He let the buffalo loose which roamed about in the village. The next day it was seized by the panchayat. A munadi was held and since no person came to claim the buffalo, it was entrusted to one Tara till the actual owner of the buffalo came forward to claim it. Accused Ram Mehar also watered his field where the dead body had been buried. After sometime, the dead body was dug out by stray dogs and it started giving foul smell. It is also the story of the prosecution that the wife and brother of Shri Hoshiar deceased became apprehensive about the well being of Hoshiara deceased when he failed to return home for about a week. Shri Jaga Ram P.W.10, elder brother of the deceased and Shri Sube Singh (PW.11) wife''s brother of the deceased came out in search of the deceased. Finally they came to the house of Shri Ali Sher PW at village Pipli Khera. On enquiries, Ali Sher told them about the deceased having purchased the buffalo from him and his having left the village alongwith the buffalo on 23.6.1986. Shri Jage Ram (PW.10), Shri Sube Singh (PW.11) and Shri Ali Sher (PW.14) carried out the search of the deceased for about a fortnight. It was then that they came to know that the buffalo was taken away by Hoshiara deceased at village Bhainswal. They came there and found the buffalor tethered at the house of Tara who demanded Rs. 150/ on account of expenses for upkeep of the buffalo. The buffalo was left with Shri Sube Singh of Village Katwal and all of them went to their respective houses. After a few days more, i.e. on 16.7.1986, Sube Singh PW came to know that a dead body was lying burried in the field at village Bhainswal and its clothes were visible. Sube Singh and Jage Ram reached the field which belonged to the accused. They found the dead body lying under the earth in the field of jawar. Bad smell was coming out of it and clothes thereon were visible. Sube Singh went to village and brought Zile Singh, Munshi Ram and Amar Singh chowkidar of the said village. They dug out the clothes from below which a dead body in the form of bones came out. There was no hair on the scalp of the dead body. From the dhoti, chaddar and shirt covering the dead body, Shri Jage Ram, Sube Singh came to the conclusion that the dead body was of Hoshiar Singh. Thereafter, Jage Ram PW left Sube Singh and the village chowkidar to guard the dead body and he himself went to the Police Station Gohana where statement of Jage Ram was converted into F.I.R. on the same day. Investigation was taken up by S.I. Raj Kumar, the then S.H.O., Police Station Gohana. He accompanied Jage Ram PW to the spot which was about 11/2 kilometres towards east of the abadi of village Bhainswal. He found Sube Singh, Munshi Ram, Zile Singh chowkidar, Amar Singh Sarpanch and a few others at the spot. He conducted investigation proceedings. He also prepared site plan of the place of recovery. He sent memo Ex.PA to the hospital that it was not possible to carry the dead body to the hospital and a request was made that the postmortem on the dead body should be carried out at the spot. Dr. V.K. Bansal, Medical Officer, Civil Hospital, Gohana came to the spot and he got the matter referred to the Forensic Science Department, Medical College Hospital, Rohtak where the post mortem on the dead body was conducted by Dr. S.S. Oberoi on 24.7.1986.

The investigation was further carried out by S.I. Raj Kumar. The Investigating Officer searched for the accused but their kotha nearby the place of recovery was found to be locked. It is the case of the State that these two accused persons went to Pirthi Singh Lambardar of village Khidwali on 25.7.1986 and they made an extra judicial confession as regards the shelter given by Krishna to the deceased. It was also confessed by these people that the deceased was carrying Rs. 1,800/ in cash with him and that Ram Mehar appellant had murdered the deceased with a kassi and robbed him of the said amount. Thereafter, both the accused i.e. Ram Mehar and his wife Krishna buried his dead body inside the field underneath the ground and later on the dogs dug out the dead body and spread foul smell. The two accused persons Ram Mehar and his wife stayed with Pirthi Singh PW for the night and he produced them before S.I. Raj Kumar on 26.7.1986. They were arrested. Ram Mehar accused was interrogated in the presence of Ali Sher and Zile Singh PW, disclosed that the had kept concealed one kassi, one cot, a purse and a Mohri in the kotha in his field and he could get the same recovered by pointing out the place of concealment. The statement was signed by Ram Mehar appellant and attested by Ali Sher and Zile Singh PWs. Then accused led the police party to his kotha and produced a key from underneath a chaukhat of the room. He opened the lock and produced a Mohri, a purse, blood stained cot and a blood stained kassi. These articles were seized and were taken into possession. The cot and kassi were sent to the Forensic Science Laboratory and on receipt of report to the effect that both were stained with blood, challan under sections 302 and 302/201 I.P.C. was filed in the court of Area Magistrate who supplied copies of the documents as required under law and committed the case to the court of Sessions vide commitment order dated 26.9.1986. Vide order dated 25.10.1986 learned Sessions Judge, Sonepat framed a charge under section 302 of the Indian Penal Code against Shri Ram Mehar and his wife Krishna. Charges were read over and explained to the accused to which they pleaded not guilty and claimed a trial.

In order to prove the charge, prosecution examined Dr. V.K. Bansal, Medical Officer, Kali Ram Patwari, Constable Dewan Singh, Head Constable Satbir, Head Constable Pritam Singh, S.I. Ram Chander, Constable Rattan Singh, Pirthi Singh, Amar Singh, Jage Ram, Sube Singh, Ved Singh, Amar Singh, Ali Sher, Zile Singh, Dr. S.S. Oberoi and S.I. Raj Kumar as P.W.1 to P.W.17 respectively. Prosecution also tendered in evidence Ex.PM report of the F.S.L., Haryana, Madhuban and Ex.PM/1 that of the Serologist. Affidavits of formal witnesses Constable Dewan Singh (PW.3), Head Constable Satbir Singh (PW.4), Head Constable Pritam Singh (PW.5), S.I. Ram Chander (PW.6) and Constable Rattan Singh (PW.7) were tendered in evidence.

Statement of the accused was recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. Accused denied those circumstances and stated that they have been falsely implicated. According to Ram Mehar appellant he was running a tea shop at Sonepat. His father and mother are alive. They are five brothers. All are married. He has no house or kotha either in the village or in the field. One Ram Mehar Lohar lodged a false report against him in P.S. Gohana. That case is still pending. He also deposed that he made an application to the higher authorities against him in July, 1986. He was brought to the C.I.A. Staff Sonepat for interrogation at Sonepat and from there he was brought to Police Station, Gohana on 14.7.1986 and his arrest was shown fictitiously on 26.7.1986. Smt. Krishna took up the same defence as that of her husband.

The accused when called upon the enter into their defence, appellant Ram Mehar produced a receipt issued by Municipal Committee, Sonepat showing that during the financial year 198586 the accused had paid charges for distribution of food at Sonepat.

Learned Trial Court acquitted Smt. Krishna. Trial Court also acquitted Ram Mehar against the charge under section 302 I.P.C. However, Ram Mehar was sentenced and convicted under section 201 I.P.C. in the manner stated above. Feeling aggrieved against his conviction and sentence, the present appeal.

In para 9 of the impugned judgment, the Trial Court rightly held that there was hardly any substantive evidence against Krishna. So far as Krishna is concerned, prosecution wants to rely upon statement of the witnesses namely Amar Singh Sarpanch of Bhainswal and Shri Prithi Singh Lambardar of village Khidwali. Statement of Amar Singh before the police was to the effect that he passed by the side of Kotha of Ram Mehar and he saw Hoshiar Singh lying on the cot and buffalo was tethered near him and at that time Krishna was doing household work. When Amar Singh Sarpanch of village Bhainswal appeared as PW.13, he did not support the story of the prosecution. According to him he did not see any body sitting on the cot in front of the house of the accused. He also did not support the prosecution with regard to the buffalo in front of the house of the accused persons either on the next day, nor he supported the case of the prosecution that this buffalo was entrusted to Tara for safe custody till the rightful claimant comes forward. Also he did not support that buffalo was subsequently entrusted to Shri Jage Ram. The witness was declared hostile and inspite of the fact that opportunity was given to the prosecution, nothing came to the benefit of the prosecution. Pirthi Singh (PW.8) Lambardar of village Khidwali of course has supported the allegations of the prosecution with regard to the alleged extra judicial confession but that has been found to be false and rightly it goes as per story of the prosecution Ram Mehar and his wife Krishna allegedly went to the Pirthi Singh Lambardar of village Khidwali on 25.7.1986 and they were allegedly produced before S.I. Raj Kumar on 26.7.1986 but Amar Singh (PW.9) Chowkidar of village Bhainswal admitted in the crossexamination that both the accused were taken in custody on 16.7.1986 when the police for the first time came to the village in order to discover the dead body. So much so, even Jage Ram (PW.10) complainant also stated during crossexamination that police apprehended both the accused on the same day when the dead body of Hoshiar Singh was discovered. Shube Singh (PW.11) also deposed to this effect during his crossexamination. Thus the link of extra judicial confession was rightly found to be unreliable by the Trial Court and Krishna was given the benefit of doubt by disbelieving the story of the prosecution. The trial Court also rightly held that there is no satisfactory evidence against Ram Mehar appellant that he allegedly committed murder of Hoshiar Singh. It is a case of circumstantial evidence. The law is well settled. Prosecution is bound to prove all the facts in a satisfactory manner on which it wants to rely and secondly the cumulative effect of all these facts should be that it is accused who committed the offence and no body else. The proved facts in this case are that dead body in petrified shape of Shri Hoshiar Singh was found underneath the ground near the kotha of the accused and the buffalow sold by Ali Sher was found roaming in village Bhainswal to which the accused belongs. The dead body was recovered on 16.7.1986 from such a place which was near to the kotha of Ram Mehar and therefore, a close proximity was drawn. The Trial Court also held that the accused got recovered blood stained kassi, purse containing the receipt and Mohri. Also Trial Court held that the identity of the dead body has been fixed from the clothes of the deceased as well as from the report of the Forensic Science Laboratory. Also it stands proved that there were five injuries on the person of the deceased as follows :

A vertical sharp cut 1 cm long with chipping of the bone present on the spine of the scapula, 5.5 cm from the base of the spinus process. It was going upto a depth of 0.4 cm. There was infiltration of blood in the cut ends of the bone.

A sharp cut 0.5 cm long with chipping of the bone in the supra spinus fossa, just above the base of the spine and 3 cms from the medial border of the scapula. Infiltration of blood was present. A part of the scapula in the supera spinus fossa measuring 4 x 4 cm was missing.

There were multiple radiating fractures of various sizes both in the supra and infra spinus fossa.

There were two sharp parallel cuts, each 1 cm. long and 0.7 cm apart present on the inner lip of right iliac crest and 4 cms behind the anterior superior iliac spine. The intervening bone between the two sharp cuts was missing. Infiltration of blood was there.

A sharp linear cut 1 cm long on the iliac crest 5 cm. in front of posterior superior iliac spine.

These injuries were ante mortem in nature. The Trial Court rightly said that the presence of injuries on his skull proves that the deceased met his end through violence and the injuries on the person of Hishiar Singh could be caused with kassi Ex.P.4. Finally it was rightly held by the Trial Court that the prosecution has been able to prove that the deceased left the house of Ali Sher PW on 23.6.1986 leading the buffalo with Mohri Ex.P.6 and having on hs person a purse containing a sum of Rs. 2,000/ and receipt Ex.PF. The cash had disappeared while the incriminating articles namely blood stained kassi Ex.P.4, blood stained cot Ex.P.5, Mohri Ex.P.6 and Purse Ex.P.7 and receipt Ex.PF have been recovered from the possession of the accused. Trial Court also rightly held that the dead body of Hoshiar Singh deceased had been recovered from the field which was in possession of the accused and the place of burial of the dead body was just near the kotha in possession of Ram Mehar accused. Trial Court rightly disbelieved the story of extra judicial confession. Also it has been rightly held by the Trial Court that the accused could not give any explanation with regard to the blood stains on the cot Ex.P.5.

However, the fact still remains that the dead body of Hoshiar Singh was not discovered at the instance of the accused. The exclusive knowledge to the place of concealment is not proved. Rather the case of the prosecution is that the dead body of Hoshiar Singh was dug up by the stray dogs and those dogs were spreading could smell. Recovery of weapon or some articles which were earlier in possession of the accused again is not a clinching circumstance to establish that it was the accused alone who was responsible for the murder of Hoshiar Singh.

The proved facts only lead to one conclusion that there was strong suspicion against the appellant Ram Mehar but those circumstances could not take the place of legal proof. Now the legal point which survives for determination is whether in the given circumstances, when the evidence relating to the offence of murder and disappearance is the same and the case of the prosecution regarding offence of murder is not accepted whether the person can be convicted for the offence under section 201 Indian Penal Code. This proposition was answered by the Trial Court in this manner, "Thus notwithstanding the fact that the accused had not been held guilty of the murder of Hoshiar Singh deceased, accused Ram Mehar can be convicted under section 201 I.P.C. It is not necessary that the accused person actually committing the murder and the person causing the disappearance of the evidence should be the same. They can be different persons. But all that is necessary is that the offence should have been committed and the accused must have been guilty of causing of the disappearance of the commission of the offence, with a knowledge of the commission of the offence and with the intention of screening the offender from legal punishment. All these ingredients are made out in this case, so that accused Ram Mehar stands convicted under Section 201 I.P.C.". In the opinion of this Court, the view taken by the Trial Court is not correct. The story of the prosecution is that Shri Hoshiar Singh innocently came to the kotha of Ram Mehar. He wanted to take shelter for the night. Ram Mehar searched the person of the deceased and found Rs. 1,800/ in his purse. He robbed him of the cash and murdered Hoshiar Singh. He concealed certain articles which were allegedly recovered somewhere in the month of July, 1986 when the offence was committed somewhere on 23.6.1986. The alleged discovery of the incriminating articles is after a sufficient long time. It is not proved on the record that there was padding in the form of extra judicial confession which has been introduced by the Investigating Agency. The evidence which has been discarded was so connected with the alleged murder of Hoshiar Singh that it was inseparable from all those very circumstances which have been proved. The prosecution wanted to base the conviction of Ram Mehar for the purpose of murder. As per allegations of the prosecution kassi was used in the alleged commission of crime. Money was robbed. Mohri was stolen and cot was conceaded etc. In such a situation, the Hon''ble Supreme Court gave the answer in 1971 Supreme Court Cases 472, Duvvur Dasratharammareddy v. State of Andhra Pradesh, in para No. 24 of the judgment held that "if the evidence relating to the offence of murder and disappearance of evidence is the same and the case of the prosecution regarding the offence of murder is not accepted, it follows that the accused cannot be convicted for the offences under section 201 I.P.C." In this view of the situation Ram Mehar could not be convicted or sentenced under section 201 I.P.C. The Trial Court has relied upon the judgment of this High Court reported as 1978 P.L.R. 106 Osan v. The State of Punjab in convicting the appellant Ram Mehar under section 201 I.P.C. In the view of this court, ratio of that judgment is not appreciated or applied by the Trial Court to the facts of the case in hand. It is not proved on the record that appellant knew or had reasons to believe that the offence has been committed in this case because it is not proved that the appellant had the knowledge that the dead body of Hoshiar Singh is lying buried in his field. The appellant disowns this fact. It is not proved on the record that the accused caused evidence thereof to disappear or gave false information respecting such offence knowing or having reasons to believe the same to be false. In this view of the matter, I am of the considered opinion that the prosecution has not been able to prove charge against the accused under section 201 of the Indian Penal Code.

Resultantly, I accept the appeal and set aside the judgment and order of the Trial Court and acquit Ram Mehar of the charge framed under section 201 of the Indian Penal Code.