AVTAR SINGH Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) By this appeal, the accused assails the judgment of the Session Judge, Shimla, in Sessions Trial No. 1-S/7 of 1986 decided on 20-8-1986. By this judgment, the learned Trial Judge convicted the accused under Sections 302/380 of the Indian Penal Code and sentenced him to imprisonment for life under Section 302 and imprisonment for three years under Section 380 of the Indian Penal Code and a fine of Rs. 3,000/- and in default of payment of fine to further suffer Rigorous Imprisonment for one year. Fine, when recovered, bas been ordered to be paid to the legal heirs of the deceased. A direction that both the sentence will run concurrently has also been issued.

(2.) The facts, in brief, are that there is an old lady. Smt. Reshmo. She is possessed of some moveable and immoveable property in her village Han Nagar in the form of land and jewellery (about two Tolas of gold). The father of the accused, Sh. Hira Singh, is the son of her sister. This lady lives alone in her house. She is visited, quite often, by the accused or his relations. She is issueless. She has a property dispute with Pano Ram and/or his wife. Some of the landed property is stated to be in the possession of Pano Ram (P.W. 1) and his family. A suit for possession, filed by her, was decreed by the Sub Judge (1), Shimla in her favour and Pano Ram (P.W. 1) has filed an appeal against the same in the Court of the District Judge, Shimla, where in a stay Older was obtained on 20-5-1985 on the condition that Smt. Reshmo would be entitled to get Rs 3,000/- as mesne profits per annum till the final disposal of the appeal. Smt. Reshmo, it appears, is unable to look after the Court case herself; may be due to age or distance, from her place of living to the Court or due to her petty day to day occupation by selling Bins and Cigarettes in the village. Therefore, she executed a general power of attorney on 17-9-1985 in favour of the accused of look after those cases and it is in evidence that even before this he had visited the office of her Advocate. Sh. Ajay Sood, with the deceased. According to her will (EX. P.W. 12/A), the cause of execution of the will is age, failing health and being issueless. By this will, she gave her property, after her death, to avoid any dispute about the same to her sisters son, Sh. Hira Singh, one-half share and Attar Singh accused, one half share, as they are looking after her since long. This will further mentions that larger part of her property has been grabbed by Sh. Pano Ram (P.W.-1) and the members of his family and makes mention of the pending suit decreed in her favour and the appeal pending before the District Judge, Shimla. This will entitles, in the event of the success of the case, Sh. Him Singh and Attar Singh (accused) to get possession of the property by filing execution petition. During her life time they were to look after her and after her death, the last rites were to be performed by them. Hira Singh as well as Attar Singh (accused) were appointed as executors of the same. The will was duly executed in the presence of two witnesses by Deed-writer Sh. K.R. Chaudhary, Shimla, and registered before the Registrar on 12-9-1985. It is in evidence that the accused stayed with Smt. Reshmu on 24.9.1985 after his return from Shimla when she was not found in the house in the morning. Before going to sleep, the house was locked. On 25-9-1985, she is stated to have been murdered by fire lit to her body after pouring kerosine oil on her body and injuries caused to her by Chakki. The matter is reported to the Police by the accused himself. In this information dated 26-9-1985 at 6.05 p.m., the accused, inter-alia, states that the deceased, who is the real sister of his grandmother, is aged about 64/65; litigation about land dispute is going on for the last about 20/21 years between the deceased and Pannu Ram, resident of the same village, the date of hearing of the case regarding house dispute with Pannu Ram was fixed on 27-9-1985 in the lower Court. The deceased told him and his father Hira Singh that she had become old and unable to walk and, therefore, they (accused and his father) should defend her case and that she would transfer her property in their name by way of a will. On 17.9.1985, the deceased executed a will of her property in his name and in the name of his father in the Court of Tehsildar, Shimla, and on the same day, she also executed a general Power of Attorney in his favour. He had gone to meet her on 24.9.1985 at about 121 p.m., but she was not at her house and after locating her in the bazar, including inquiries in the office of Shri Ajay Kumar Sood, Advocate, he went back to her house where she was found cooking her meals in the kitchen: They both took meals and went to bed at about 10/10.30 p.m. the deceased slept on the charpai while he slept on the bed spread on the floor. In the morning of 25.9.1985, the deceased might have gone to urinate outside and while coming back into the room, she might not have bolted the door from inside. At about 4 or 4.30 a.m., he heard cries of the deceased and after removing the quilt from his face, be .saw deceased getting up from her bed and her body and bed were burning. She was crying loudly bachao-bachao. In the light of fire, he saw five persons standing there, smell of kerosene oil was coming out. These five persons might have burnt the deceased by sprinkling kerosine oil on her body. On seeing him getting up, one of the five persons, who was having beard, put his foot on his chest and pressed him. He had a revolver in his hand. He also threatened to kill him in case he, raised any alarm. One of them picked up a chakki pather (stone), which was lying there in the room, and struck the same three/four times on the head of the deceased as a result of which she died there and then. Thereafter one person called them out. He recogoised the voice which appeared to be that of Pannu Ram. All me five persons left the room His bed also caught fire. He got up and extinguished by fire of both the beds with his hands and water. While extinguishing the fire, his right arm anterior to the elbow and exterior part of the left hand fingers had also burnt. His Khakhi terrycot shirt also burnt from right arm out of the five persons, he could identify only that person who having beard, in case he was shown to him. All these persons were young. He applied mustard oil from the bottle lying in the challan the burnt portion of his arm and went towards the cemetery side through the path leading from the school. He remained in a nallah ahead of the cemetery upto about 7.30 p.m. an a then went to his house at Annandale where he reached at about 9.30/10 p.m. when all the members of his family bad gone to bed. In the morning the narrated this incident at about 10.30 a.m. to his parents and wife. His father had applied blue colour medicine, which was lying in the house, on the burnt portion of the arm and hand. This information forms the first Information Report in this case and the police started the investigation.

(3.) Vide application (Ex. D.2) dated 28.9.1985, the police applied for the police remand of the accused. In this application, the police mentions that the house of the deceased, when visited, was found locked. The Investigating Officer got suspicious because while lodging the First Information Report, the accused had stated that he left the place after closing the door but as the same was found locked on the spot, he got suspicious and the accused having failed to answer satisfactorily, and it being night time having no, lighting arrangement for further proceedings for going on the spot, officials were deputed to guard the place of occurrence and he himself returned to the police station. The accused was directed to come to the police station on 27-9-1985 at 9 am., which he did, and on interrogation he, confessed his guilt and told that he had wrongly got registered the case. In fact, it was he who had done it. On this the accused was arrested under Section 41 (1) of the Code of Criminal Procedure. On 27-9-1985, at 12.15 p.m., in the presence of witnesses a disclosure statement regarding the recovery of keys under Section 27 of the Evidence Act was made and recorded and as a consequence thereof, keys were recovered and taken into possession.