State of H.P. Vs. Joginder Singh - Court Judgment

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criminal - acquittal - lack of evidence - sections 302 and 34 of indian penal code, 1860 (ipc) and section 164 of code of criminal procedure,1973 (cr.p.c.) - appellant/state filed present appeal against acquittal order of respondent from charges under section 302 and 34 of ipc - held, concerned witnesses never stated that respondent no. 1 had visited their house and proclaimed of having killed their brother - in such circumstances, when confession is made by respondent no. 1 before wife of deceased, infirmities in her statement including her behavior have to be cleared, before court can place implicit reliance upon her statement - perusal of original application submitted by investigating officer, clearly shows that no observations were recorded by magistrate before recording statement as to at what time, application was presented, at what time he recorded statement and as to whether he gave the time to witness to reconsider if he wanted to make any statement - however, manner in which statement was recorded, it cannot be relied upon once witness has resiled having made any such statement to magistrate under section 164 of cr.p.c. - statements of other witnesses does not further substantiate case of prosecution - on appraisal of evidence, prosecution had miserably failed to prove their case beyond any reasonable doubt - accordingly, appeal dismissed - code of civil procedure, 1908.[c.a. no. 5/1908]. order 14, rule 2 [as amended by amending act of 1976]: [v.k. gupta, cj, deepak gupta & surjit singh, jj] preliminary issue of law and fact court framing all issues both of law and facts together and also tried all the issues together, including the issue relating to jurisdiction of court held, except in situations perceived or warranted under sub-rule (2) of rule 2 of order 14 where a court in fact frames only issues of law in the first instance and postpones settlement of other issues, clearly and explicitly in situations where the court has framed all issues together, both of law as well as facts and has also tried all these issues together, it is not open to the court to adopt the principle of severability and proceed to decide issues of law first, without taking up simultaneously other issues for decision. this course of action is not available to a court because sub-rule (1) does not permit the court to adopt any such principle of severability and to dispose of a suit only on preliminary issues, or what can be termed as issues of law. sub-rule (1) clearly mandates that in a situation contemplated under it, where all the issues have been together and have also been taken up for adjudication during the course of the trial, these must be decided together and the judgment in the suit as a whole must be pronounced by the court covering all the issues framed in the suit.v.k. ahuja, j.1. this is an appeal filed by the state of h.p. under section 378 cr. p.c. against the judgment, dated 31.3.1994, of the court of learned additional sessions judge, nahan, vide which the respondent was acquitted of the charge framed against him under section 302/34 i.p.c.2. briefly stated the facts of the case are that on 12.8.1992 at 8.30 a.m., a report was lodged with the police vide rapat no. 2, dated 12.8.1991, by one ved prakash that a didag tifri near water fall, a body of an unidentified person was lying. on this report, the police proceeded to the spot and after some time, the body was identified to be that of one rajinder singh. the statement of smt. bimla devi, wife of the deceased rajinder singh, was recorded at 11.45 a.m. on the same day in which she alleged that on the previous day, her husband had left the house at 7.00 a.m. stating that he was going to sagrah and would come back in the evening. she waited for her husband upto 8/9 p.m., but, when he did not return, she took the meals and slept in the house alongwith her children. it was further alleged by her that during the night intervening 11/12.8.1992, at about 1.00 a.m., when she was sleeping in her house, one joginder singh, son of bakhu ram, who is respondent no. 1, had thrown stones on the roof of her house and proclaimed that he had killed her husband. she presumed that the said joginder singh may be under the influence of liquor and she kept on sleeping in her house. at about 9.00 a.m., on 12.8.1992, when she was in her house, one het ram came to her house and informed her that the said joginder singh respondent no. 1, and respondent no. 2 have killed her husband on the night of 11.8.1992 at about 10.00 p.m. and his dead body was lying at chhokhala near rajgarh-nauhra road. thereafter, the police also reached her house as per the rapat lodged with them and her statement was recorded by the asi. on the basis of the said statement, the case was registered and after investigation, the challan was filed in the court of the learned cjm, sirmaur, who committed it to the learned sessions judge from where it was assigned to the learned trial court, who tried the respondents leading to their acquittal.3. we have heard the learned deputy advocate general for the state and the learned counsel for the respondent and have also gone through the record of the case.4. the submissions made by the learned deputy advocate general for the appellant were that the statement of the complainant/wife of the deceased, namely, bimla devi, pw-2, clearly proves that on the night intervening 11/12.8.1992, she had learnt from joginder singh, respondent no. 1, himself when he proclaimed that he killed her husband. it was submitted that her statement was sufficient to prove the case and it does not suffer from any infirmity and can be relied upon. it was also submitted that there are some other circumstances supporting the prosecution case and, therefore, the findings of the learned trial court to the contrary are liable to be reversed.5. we have gone through the evidence in detail and the findings recorded by the learned trial court. it is clear from a perusal of the evidence that neither there is direct evidence nor there are many circumstances pointing out to the guilt of the respondents. the only circumstance pointed out consist of mainly the testimony of bimla devi, pw-2, wife of the deceased who was the star witness and the statement of pw-3 het ram, who allegedly came to the house of the deceased and informed pw-2 bimla devi on the next day about the fact of the death of her husband. it has to be seen as to whether this circumstantial evidence can be said to be sufficient to prove the guilt of the respondent beyond any reasonable doubt.6. coming to the statement of star witness pw-2 bimla devi, she has stated in her statement that her husband did not return till 9.00 p.m. and when they were sleeping at about 1.00 a.m., respondent no. 1 threw stones on her house and proclaimed that he has killed her husband. she stated that she thought that he was uttering such words under the influence of liquor. at about 9.00 a.m., het ram came to their house and told her that the respondents have killed her husband near chhokhala. she stated that on hearing this news, she became unconscious. the police came to their house around 12.00 noon and her statement ext.pw-2/a was recorded. she further stated about the motive that joginder accused had been quarrelling with her husband on and of and used to say that he would kill him as and when he finds the opportunity. she did not state as to when any such threat was given to her husband by the accused joginder singh. she referred to some previous incidents, one is of the year 1990 when joginder and others took her husband to their house and gave beatings to him with dangra for which the case was still going on under section 325, 326 ipc. she further stated that since she got fainted on hearing the news of the death of her husband, she could not report the matter to the police and meanwhile the police came and recorded her statement.7. a perusal of her statement shows that there are many unexplained things in her statement and her statement, therefore, does not inspire confidence. it is true that different persons behave differently in given circumstances and no uniform behaviour can be expected from different persons when placed in different situations. however, if there are some abnormalities in the conduct or behaviour of a witness, which does not appeal to common sense and these loopholes are not filled in, the statement of such a witness cannot be implicitly relied upon, particularly, when such witness is the wife of the deceased and is proclaiming that the confessional statement was made to her by one of the respondents.8. pw-2 bimla devi has further stated that stones were thrown at her house by respondent joginder singh and he also proclaimed that he had killed her husband. we are not expecting that she should have come out at that moment and confronted the accused since there may be threat to her life, but she did not state as to from how much distance she heard the statement made by the respondent joginder singh or how she identified that he was the said joginder singh, respondent no. 1, who was proclaiming to have killed her husband. she is silent and does not offer any explanation as to how she learnt about the statement allegedly made by respondent no. 1 or how she identified him.9. moreover, the conduct of pw-2 bimla devi, wife of the deceased, thereafter cannot be termed as normal that once she had learnt at about 1.00 a.m. in the night about the fact that her husband had been killed, who was away since morning and had not returned in the evening, she goes and sleeps during the night and there is nothing abnormal, since she could not have gone out during night time to confirm the said statement made by joginder singh. further, her conduct in the morning cannot be said to be normal since she does not go to any of the brothers of the deceased living in the same house, though separately, and does not tell them or ask them to confirm as to what had been proclaimed by respondent no. 1 during the night time. it is in evidence of her own statement that brothers of her husband, meaning thereby that more than one, are living separately in the same house.10. one of the brother of the deceased kamal raj has been examined as pw-5, who admitted that he lives in the adjoining room but was away and had learnt about the death of his brother at 9.00 a.m. we assume his statement as correct that he may not be present in the house, but there is a reference to more than one brother and the complainant as pw-2 did not state that she made efforts to contact these brothers of the deceased or that pw-5 kamal raj was not present there and, therefore, she could not tell him about what she had learnt during night time.11. apart from the above, she had not gone either to the brothers of the deceased or her neighbours or even to the place where the dead body was recovered as told by pw-3 het ram to her at about 8.00 a.m. the distance in between that place and her house is stated to be of 10 minutes walk, as per her statement, but she continued to stay in her house and according to her, made no efforts to go to the place or send some of his relatives or neighbours to the place where, allegedly, the dead body was found as per pw-3 het ram. she sits in her house and only when the police officer visits her at 11.45 a.m., she gets her statement recorded.12. however, there is statement of pw-13 devender singh from the same village, who stated that bimla devi, wife of the deceased, told him about the death of her husband. thereafter, he and wife of the deceased went to village didag and found the dead body lying in chhonala and some portion of the body having been eaten up by the animals. he admitted in cross examination that bimla told him at about 9.00 a.m. about the death of her husband. they immediately started to the place of occurrence. when they reached there, police was already there and he and bimla devi came back to her house at about 2.00 p.m. according to the parentage given, he is the brother of the deceased though he never stated in his statement that the deceased was his brother. he admitted that the deceased was the person of quarrelsome nature and all the villagers were scared of him.13. it has also come up in the evidence that the deceased had been convicted in a murder case by the learned additional sessions judge, nahan and had been on bail granted by this court, though there is nothing on record to show the fate of that case. however, the evidence is there of his involvement and conviction in that case and his having some disputes with the other party.14. from the above discussion, it is clear that pw-2 bimla devi also told pw-13 devinder singh around 9.00 a.m. about the death of her husband. it looks unbelievable that a woman who had learnt about the death of her husband will sleep quietly, in her house, may be being a night time, but at least she should have gone early in the morning, made efforts to search for her husband and confirmed if he had been killed and in all probability she should have disclosed these facts to her brother-in-law pw-13 devinder singh or pw-5 kamal raj, who had also reached at the spot sometime after 9.00 a.m., after learning about the death of his brother. but all these witnesses never stated that respondent no. 1 had visited their house and proclaimed of having killed their brother. in such circumstances, when the alleged confession is made by respondent no. 1 before the wife of the deceased, the infirmities in her statement including her behaviour have to be cleared, before the court can place implicit reliance upon her statement. this is the main evidence led as against the respondent.15. apart from the above, the prosecution had also examined some witnesses to substantiate their case. pw-3 het ram has simply stated that he and both the respondents were working with jabbar singh. he never saw the deceased. they came back to their home at about 6.30 p.m. and denied that the respondents took liquor at about 7.00 p.m. his statement under section 164 cr. p.c. was got recorded by the investigating officer, but he resiled from his statement and stated that he never made such statement, which was allegedly made under police pressure, though he admitted that sdjm had' recorded his statement, which bears his signatures.16. a perusal of the original application ext. pw-1/a and ext.pw-1/b submitted by the investigating officer pw-14, asi ratti ram, clearly shows that no observations were recorded by the learned sdjm before recording this statement as to at what time, the application was presented, at what time he recorded the statement and as to whether he gave the time to the witness to reconsider if he wanted to make any statement. however, the learned sdjm shri rajan gupta, who was also examined as pw-1, did not specifically state these facts which were very necessary and in the absence of these facts having not been mentioned about the time of presentation of the application or the time given to reconsider or the time of recording of his statement, it cannot be said that this statement was made voluntarily. however, the learned sdjm recorded his certificate at the end of his statement ext. pw-1/c, which certificate is ext. pw-l/d, in which he has certified that he had explained to het ram that he was not bound to make a confession which can be used as evidence against him, though it was never a confessional statement made by this witness. this certificate was given in routine by the learned sdjm though in such statements, it is the duty of the magistrate to mention the time when the application was presented, to mention the time when the statement was recorded and as to whether time was given to the witness or not to reconsider since he had been brought by the police. the witness was brought by the police and on the same day, the learned sdjm recorded his statement, but the witness, while appeared in the court, resiled from this statement and stated that he was under the police pressure. the witness also took up the plea that the police was present in the room when his statement was recorded, though in a matter of routine, it was denied by the learned sdjm as pw-1. however, in the manner in which the statement was recorded, it cannot be relied upon once the witness has resiled having made any such statement to the magistrate under section 164 of the cr.p.c.17. pw-6 hat ram has stated that 5-6 months ago, at about 8.00 p.m., the deceased came to his hotel, took meals but he does not know if he was under the influence of liquor. he closed his hotel and went home. he stated that the deceased went to the house of kunda and he saw him going to the house of kunda, but he does not know whether the deceased demanded anything from kunda. the said kunda has been examined as pw-7, who stated that on 11.8.1992, at 9.30 p.m. the deceased came to his house under the influence of liquor and asked him to bring liquor for him. he told him that he cannot do so and thereafter the deceased went back and he saw his dead body on the next morning in chhokhala, but could not identify the dead body. he stated that he was told by sushil and jabar singh about the dead body lying in chhokhala but these two witnesses have never been examined by the prosecution to show as to when they saw the dead body or if they had any knowledge about the commission of murder by the respondents. therefore, his statement or that of other witnesses does not further substantiate the case of the prosecution.18. on appraisal of the above evidence led by the prosecution, we are accordingly of the view that the prosecution had miserably failed to prove their case beyond any reasonable doubt and, therefore, the findings recorded by the learned trial court holding that the prosecution had failed to prove their case cannot be termed as perverse calling for an interference by this court.19. in view of the above discussion, we hold that there is no merit in the appeal filed by the state of h.p., which is dismissed accordingly. the bail bonds furnished by the respondent shall stand discharged.