Budhi Prakash Vs. State of H.P. - Court Judgment

Excerpt:
- 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.surjit singh, j.1. appellant is aggrieved by the judgment dated 24.11.2006 of learned additional sessions court (fast track court), chamba, whereby he has been convicted of offence, punishable under section 302 ipc and sentenced to undergo rigorous imprisonment for life and to pay a fine of rs. 25,000/-; in default of payment of fine to undergo rigorous imprisonment for a further period of one year.2. prosecution case, as per evidence on record, may be noticed. deceased naro, aged about 19 years, was married to the appellant, who himself was about 20 years of age, in december, 2003. about 11/2 month after the marriage, some time in the month of january, 2004, deceased went to her parents in village chhanjoth and told them that the appellant indulged in indecent activities at public places, which caused embarrassment to her and on her protesting, he would give beatings to her. she stayed at her parents' place for about 11/2 month. her mother pw-9 guddo brought her back to the matrimonial home, and on assurance by the appellant that he would be treating her well, left her there. on the night of 11th april, 2004, pw-1 khem raj, father of the deceased, received a telephonic call from pw-10 heera lal, pardhan of gram panchayat, bharada, within whose area of panchayat, the house of the appellant falls, that the deceased was missing. he (pw-1 khem raj) asked pw-10 heera lal to depute people from the area to search for his daughter. a few minutes later, pw-1 khem raj received another telephonic call from pw-10 heera lal, informing him that dead body of the deceased had been found in a wheat field. pw-1 khem raj then accompanied by a large number of residents of his village reached village banjar, where the appellant lives. he went to the spot. appellant was not there either at his residence or on the spot. pw-10 heera lal was informed by two persons, by the names of thakur dass and ram dayal (not examined as witnesses), that the appellant was not at his house, but had gone to village bhatkar and could be available at the house of one chet ram. this information was given to pw-10 heera lal by the above named persons at 11 in the night, on 11.4.2004, when they went to inform him that deceased naro had gone missing. on coming to know about the dead body of naro, lying in a wheat field, pw-10 heera lal made a call to someone in village thalli and asked the man, who attended the call, to inform the appellant at the house of chet ram in village bhatkar that his wife was dead. appellant then returned to his village accompanied by dw-1 kheti ram. he went to the spot. by that time pw-1 khem raj, the father of the deceased, had already reached the spot. pw-10 heera lal was also present at the spot. he deputed the appellant alongwith pw-6 tek chand, pw-4 rasalu and pw-7 tej singh to police post, nakrod, to inform the police. appellant lodged report at police post, nakrod, which was entered in the rojnamcha. copy of that report is ext. pw16/a.3. as per report ext. pw16/a, deceased had gone to collect grass in the evening of 11th april, 2004 and she died in the fields. pw-16 hhc dev raj of police post, nakrod, informed pw-18 hem singh, sho, police station, tissa, by means of vhf set about the visit of appellant and his lodging report about the death of his wife. this information was entered in the rojnamcha at police station, tissa, copy of which is ext. pw18/a. pw-18 hem singh then went to the spot. he inspected the spot and recorded statement ext. pa of pw-1 khem raj, the father of the deceased. as per ext. pa, deceased used to be harassed by the appellant and this fact had been disclosed by the deceased to her parents, when, on account of the alleged harassment, she left the house of the appellant and went to her parents and stayed there for about 11/2 month. pw-1 khem raj further stated that he suspected that appellant was responsible for killing of his daughter. this statement was sent to the police station for formal registration of the case. thereafter, site plan ext. pw18/b was prepared and then inquest was conducted and from ext. pw18/c was filled in. scene was got photographed. dead body was sent to civil hospital, tissa for postmortem examination. a dupatta was found tightened around the neck of the deceased, with two knots, a piece of stone having been placed in between the two knots. the fact finds mention in the inquest report as also the application, ext. pw18/d, by which the medicial officer, civil hospital, tissa, was requested to conduct the postmortem examination. pw-4 dr. jaswant singh, who conducted the postmortem examination, untied the dupata. he gave the opinion that the cause of death was strangulation, caused by tightening of dupatta around the neck of the deceased.4. we may notice here that neither in the inquest report ext. pw18/a nor the application ext. pw18/d there is any reference to the allegation contained in ext. pa, the statement of the father of the deceased, that the appellant used to harass the deceased and, so, it was suspected that he had killed her.5. pw-2 kesru and pw-3 kanta devi saw the appellant leaving village banjar, where the dead body was found, around 5.30 p.m. and going towards village chhanjoth. pw-4 rasalau and pw-7 tej singh stated that when they were accompanying the appellant to police station, tissa, on 16.4.2004, as he had been called by the police, he (the appellant) on the way told that he happened to commit the mistake of killing his wife, because she was pregnant and when he asked her as to who was responsible for her pregnancy, she told that two persons, named rohit and puran chand were responsible for her pregnancy and that this angered him and he happened to kill her.6. appellant took the plea that he alongwith dw-1 kheti ram had been working as a labourer at the house of one chet ram in village bhatkar for the last 10-12 days and he and said kheti ram had been putting up in that village, because of long distance between his village banjar and village bhatkar and when he received a telephonic call about the death of his wife, he returned to the village and saw the dead body of his wife. he denied that he ever tortured or gave beatings to his wife. he also stated that the deceased had died on account of fall from a precipice.7. learned trial court disbelieved the prosecution evidence, with regard to the extra judicial confession, made by the appellant to pw-4 rasalu and pw-7 tej singh. however, it came to the conclusion that the appellant was guilty of murdering his wife, because he was present in the village on 11.4.2004, but left the same in the evening, as testified by pw-2 kesru and pw-3 kanta devi and that he took false plea of alibi and also as to the cause of death of the deceased that she had fallen from a precipice and died.8. we have heard the learned counsel for the appellant as also the learned deputy advocate general and gone through the record.9. it is true that pw-2 kesru and pw-3 kanta devi, who are residents of village banjar or say the same village where the appellant lives, testified that they saw the appellant leaving the village in the evening of 11th april, 2004, but we also find from the evidence of the prosecution itself that probably the appellant was not in the village on 11th april, 2004 and he had been working as a labourer in village bhatkar alongwith dw-1 kheti ram, for the last several days and staying in that very village.10. pw-10 heera lal, pardhan of the panchayat, who is a brother-in-law of pw-1 khem raj, being the husband of his sister, in his testimony, very categorically stated that when two persons by the names of thakur dass and ram dayal came to his house, around 11 in the night on 11.4.2004, and informed that deceased naro had been missing, they also told him that the appellant was not in the village, but was at the house of chet ram in village bhatkar. prosecution did not examine said thakur dass and ram dayal to prove as to how they came to know that the appellant was in village bhatkar at the house of chet ram.11. pw-2 kesru and pw-3 kanta devi did not say that they informed said thakur dass and ram dayal that they had seen the appellant leaving the village. also, these two witnesses did not say that they knew or even had any idea that the appellant was going to the house of chet ram in village bhatkar or for that matter even to village bhatkar. that means, the appellant had not been in the village for quite some time and the people of his village knew that he was at chet ram's place in village bhatkar and working there as a labourer. the fact is testified by dw-1 kheti ram.12. now, when it is clear from prosecution's own evidence that probably the appellant was not in the village when the deceased went missing and was killed, there should be no reason to reject the plea of alibi, taken by the appellant.13. the mere fact that the appellant has pleaded that the deceased died on account of fall from a precipice cannot be used against him as a circumstance to hold him guilty of the offence of murder. he being not in the village at the time of death of the deceased was not supposed to be knowing the exact cause of death. in any case, this false plea only raises suspicion against the appellant and does not prove the charge of murder, beyond reasonable doubt.14. evidence of extra judicial confession has not been believed even by the trial court. learned deputy advocate general also very fairly concedes that the evidence regarding extra judicial confession is of a suspicious nature and not believable.15. in view of the above stated position, appeal is accepted, judgment of the trial court, convicting and sentencing the appellant is set aside and he is acquitted. appellant, being in jail, serving out the sentence awarded by the trial court, is ordered to be released, immediately, in case his detention is not required in any other case.