KISHORECHAND Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The appellant K. C. Sharma, along with two others was charged for the offence punishable under Ss. 302 and 201 read with S. 34 of the Indian Penal Code for causing the death and concealing the dead body of Joginder Singh. The Additional Sessions Judge, Kangra Division at Dharamsala convicted all the accused under S. 302/34 and directed them to undergo imprisonment for life and to pay a fine of Rs. 500/ - and also to the sentence of two years rigorous imprisonment and fine of Rs. 500/- the offence of S. 201 / 34, in default of payment of fine for a further period of three months rigorous imprisonment. All the sentences were directed to run concurrently. On appeal the Division Bench of the High Court of Himachal Pradesh by judgment dated July 20, 1977 acquitted accused 2 and 3 of the offence under S. 302, I.P.C. and confirmed the conviction and sentence of the appellant and set. aside the sentence of fine. The leave having been granted by this Court, this appeal has been filed.

(2.) The narrative of prosecution case runs thus:The deceased Joginder Singh, resident of Jogipura, Tah. Kangra on November 10, 1974, while going to Pathankot with some currency notes in his possession went on his way to Jassur village to meet his friend one Bala Pahalwan. On enquiry the latter was said to be absent from the village. The deceased came in contact with the appellant and both went to the Dhaba of P.W. 7, Joginder Singh Paul to have some drink, but P.W. 7 did not allow them to take liquor inside the Dhaba. Both of them sat in the back side of the Dhaba to have drink. P.W. 8 Tamil Singh and one Jai Onkar were also invited to have drink with them. All of them together consumed the liquor and ate meat. The deceased paid the price of the liquor and meat and when he had become tipsy, P.W. 8 suggested to take the deceased to Pathankot or to keep him at Dhaba Beli whereat he could make necessary arrangements for their stay but the appellant insisted upon taking the deceased to Kangra. Thereafter the appellant and the deceased boarded the Truck No. HPK 4179 driven by A.2, Madho Ram, Driver and A.3,Bihari Lal, Cleaner. P.W. 8 and the other left the place. The truck was loaded with the bricks and the appellant and the deceased sat on the bricks in the body of the truck and went towards Kangra side. P.W. 12, the Octroi Clerk at Nurpur states that the truck driven by A.2 went towards Baijnath. P.W. 13, Burfiram, Chowkidar at Ichhi Marketing Co-op. Society spoke that he saw the truck driven by A.2 and A.3 and got unloaded the bricks at the godown of the said Society at about midnight but the deceased was not seen there. It is further the case of the prosecution that while the deceased or accused were going in the truck, there ensued a quarrel between them over some money matter and the appellant took iron-screw driver and gave blows on the head and face of the deceased. Consequently the deceased was half dead. He was thrown out of the truck but finding him not dead put him in the truck and all the accused severed the head with an iron saw and buried the trunk under stones in the outskirts of the village Dhadhu and carried the head with them in the truck. The head was hidden at a place between Guggal and Chaitru on the Kachcha road branching off the main road to the village Ichhi. On November 13, 1974, P.W. 6 Karrudi Ram, the Chowkidar of Mauza Bandi, during twilight, had gone to answer nature's call at the out skirts of the village Dhadhu and noticed the blood stains and a torn pant near the stones. On further probe the hand of the deceased was seen projecting from the stones and he noticed the dead body. He went and reported to Bidhu Ram, P.W. 10, the Pradhan of the village and two others. All of them went tot he spot noticed the dead body. P.W. 10 kept a watch during the night. On November 14, 1974 at about 7.00 or 8.00 a.m. P. W. 6 went to the Police Station and lodged the complaint. P.W. 26, the A.S.I. recorded and issued the First Information Report and proceeded to the spot. He recovered the articles on and near the dead body under P.W. 11, Panchnama and conducted inquest and sent the dead body for post-mortem. The Doctor conducted autopsy. On November 15, 1974 the parents of the deceased came to the Police Station and identified the clothes of the deceased. On November 16, 1974, P.W. 27, the Sub-Inspector of the Police took over the investigation. He contacted one Kuldip Singh, a Conductor in Kapila Transport Company from whom he came to know that on Nov. 10, 1974, the deceased and the appellant were seen consuming liquor at Jassur. Thereafter P.W. 27 and P.W. 10, Bidhu Ram, Pradhan of Guggal Panchayat went to the appellant's village Sahura and was sent for the appellant. The appellant on coming to him was found to have shaved off his moustaches. P.W. 27 had enquired as to why he had removed his moustaches upon which the appellant was claimed to have replied that he had removed his moustouches due to demise of his maternal uncle. P.W. 10 and P.W. 27 took the appellant to Jassur for identification purposes. The appellant pointed out P.W. 7, the owner of the Dhaba and the latter identified the appellant as one seen in the company of the deceased and having consume liquor. Equally of P.W. 8. Thereafter the appellant was taken back to P.W. 10's village and P.W. 27 left the village for further investigation. On enquiry made by P.W, 10, in the shop of one Mangath Ram and in the company of one Raghunath, to reveal the truth to him, the appellant was stated to have requested P.W. 10 whether he could save him if he would tell the truth. Thereupon P.W. 10 stated that he could not save him but if he would speak the truth he would help himself. Thereupon the appellant was stated to have made extra-judicial confession giving out the details of consuming liquor with the deceased; their going together on the truck, the quarrel that ensued between them; his hitting the deceased with the screw-driver, throwing the dead body, thinking that he died, on the road realising that he was not dead, lifting him and putting him in the body, of the truck and all the accused cutting the head of the deceased with the saw blade and burying the trunk under the stones and hiding the head at different place and thereby they had committed the crime. P.W. 10 gave this information to P.W. 27 on the next day, namely, November 25, 1974. Thereon all the accused were arrested. On November 27, 1974, the Driver A.2 was stated to have made a statement under S. 27 of the Evidence Act Ex. P.W. 9/ A leading to discovery of the hidden head at a place between Guggal and Chaitru. This statement had been made in the presence of P.W. 9 and another and the severed head was recovered under Memo Ex. P.W. 9/ B. This was in the presence of P.W. 10 and another. The head was sent to the doctor for post-mortem examination. The doctor verified and found it to be correct and the doctor correlated the trunk of the dead body and the head belonging to the deceased. On November 30, 1974, pursuant to statement made by the appellant and A. 3 under Ex. P.W. 16/ B leading to recovery of one iron-saw without handle and a piece of cloth wrapped to one of its sides was recovered from a bush near Kathman Mor and P.W. 10 and another are Panch witnesses and found the saw blade contained with blood stains and a piece of cloth of torn pant. They were recovered under Ex. P. W. 16/ C. The clothes of the appellant were also claimed to have been recovered from his house under Exhibit P.W. 16/ H which was stained with blood and the same were recovered in the presence of P.W. 16, The Serologist found the blood stains disintegrated on all the items. On the basis of this evidence the prosecution laid the charge-sheet against all the accused. As stated earlier the appellant now stands convicted and sentenced for the offences under Ss. 302 and 201, I.P.C. The two others did not file appeal against their conviction under S. 201, I. P.C.

(3.) The entire prosecution case rested on circumstantial evidence. As regards the appellant, insofar as the circumstances relied on by the prosecution are three, namely, (i) the appellant and the deceased were last seen together by P.W. 7, the owner of the liquor shop, Dhaba and P.W. 8, the companion who had liquor with the deceased and the appellant; (ii) the extra-judicial confession made to P.W. 10, the Pradhan of Guggal Gram Panchayat; and (iii) the discovery of saw blade pursuant to the statement made by the appellant and A. 3 under S. 27 of the Evidence Act.