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PETITIONER: STATE OF HIMACHAL PRADESH

       Vs.

RESPONDENT: SHRI MANOHAR SINGH THAKUR

DATE OF JUDGMENT:       28/07/1998

BENCH: SUJATA V. MANOHAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Mrs. Sujata V. Manohar, J.      The respondent-accused,  Manohar Singh,  was tried  for offences punishable  under Sections  302, 307  and 394  read with Section  397 of  the Indian Penal Code. By his judgment and  order   dated  7.4.1986,  the  learned  Sessions  Judge convicted the  accused under  Section 302,  307 and 394 read with Sections  397 of  the Indian  Penal Code.  The Sessions Judge held  that the  crime committed  by  the  accused  was callous and  burtal and  was one of the rarest of rare cases where the  accused had murdered one old person and attempted to murder  another  unsuspecting  old  and  helpless  person without slightest  provocation and  simply  to  gratify  his greed. He,  therefore, awarded  the  death  penalty  to  the accused for  offence under  Section 302.  For offences under Section 307  and 394  read with  Section 397,  he  passed  a sentence of  rigorous imprisonment  for tan years and a fine of Rs.500/-. In appeal, the High Court has given the benefit of doubt  to the  accused and  acquitted him of all charges. Hence the present appeal is filed by the State.      Briefly stated,  the case  of  the  prosecution  is  as follows:      There lived an old couple in Village Deola, Tehsil Suni District Shimla.  The husband’s  name was  Kula Datt,  since deceased. His  wife’s name  is Mathru Devi. The couple had a daughter, namely,  Pushpa Devi.  She was married to one Khem Dass of  Village Auth about 15 or 20 years prior to the date of the  crime. The accused, Manohar Singh, is the son of the sister of Khem Dass. He was thus a nephew by marriage of the daughter of  the old  couple. The accused used to visit Kula Datt and Mathru Devi.      On the  evening of  2nd of  September, 1985, he visited the house  of the couple. In the morning at about 7 a.m. the following day, that is to say, on 3rd or September, 1985 the accused left  the house  in the  company of Kula Datt on the pretext that he wanted to buy some gold from one Nika Ram of village Bagh  and Kula  Datt  being  an  elderly  ma,  could provide requisite guidance in the purchase of gold. At about 10 a.m.  on the  same day, the accused returned to the house of Kula Datt alone. When Mathru Devi, the wife of Kula Datt,

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enquired as  the where her husband was, the accused told her that he  had stayed  behind in  the village  to talk  to the villagers about the ensuing panchayat elections. Mathur Devi served a  meal to  the accused  and the  accused had  a  nap thereafter. As  Kula Datt had not returned, when the accused got up, Mathru Devi took him to the village in search of her husband. They  went to the house of one Durga Dass who was a member of  the village  panchayat, and a lady named Hukmu to enquire about  the whereabouts  of Kula  Datt. These persons told Mathru Devi that her husband had not been seen by them. Thereafter, the accused left the village.      However, at  about 10  p.m. on  the  night  of  3rd  of September, 1985,  the accused  gave a  knock at  the door of Mathru Devi.  Mathru Devi enquired as to who was knocking at her door.  On being told that it was the accused, she opened the door. The accused produced a key of the box in which the couple kept  their cash and ornaments. This key was normally kept always  with himself  by Kula  Datt. The  accused  told Mathru Devi  that her  husband and  her daughter  Pushpa had been held hostages by some dacoits at Panchayat Ghar and the dacoits were demanding cash and ornaments as ransom. He gave the key to Mathru Devi thereupon opened the box and took out cash and  ornaments of silver and gold and put them in a bag of cloth.  A pattoo  of Pashmina  was also put in the bag by her as  instructed by  the accused.  She then  followed  the accused to  the Panchayat  Ghar which  is at  a distance  of about two furlongs from her house.      She found that her husband and daughter were not in the Panchayat Ghar.  When the  old lady  asked the accused where they were,  he replied  that they  might have gone to answer the call of nature. He asked the lady to go inside the room. As soon  as she  entered the room the accused hit her on the head with  some heavy  object. As  a result Mathru Devi fell unconscious. When she regained consciousness, she found that the accused  as well  as the  cash, ornaments and the pattoo were missing.  She tried to proceed towards her house but on account of  excessive bleeding  from her  head, she found it difficult to  walk. Sometimes  she walked  and sometimes she crawled. When  she reached  the house  of  Durga  Dass,  the member of  Gram Panchyat,  she fill  unconscious. Durga Dass thereupon  removed   her  to   her   house.   She   regained consciousness at about 4 p.m. on 4th of September, 1985. She narrated the  whole story  to  her  daughter  who  had  then arrived.      In the  meanwhile, the  dead body of Kula Datt had also been spotted  in a  nala near  village Bagh.  A resident  of Village Bagh  came to  Village Deola and informed Durga Dass in his  capacity as a member of the Gram Panchayat about the spotting of the dead body of Kula Datt in a nala. Durga Dass went to  the site  in the  company  of  other  residents  of village Deola. Thereafter they sent a person Prem Lal to the police station  Dhali to  lodge  first  information  report. Accordingly, a  first information  report was  lodged in the daily diary  of the police station Dhali. The police reached Deola at  about 4  p.m.  on  5th  of  September,  1985.  The statement of  Mathru Devi  was recorded  and she was sent to hospital for examination and treatment. An inquest report on the dead  body of  Kula Datt  was prepared  and the body was sent for  postmortem. The  postmortem  examination  revealed that the  deceased had  received a  head injury with a heavy blunt object which resulted in his death.      On  9.9.1985   the  accused  was  arrested.  A  sum  of Rs.2,000/- in  currency notes was found on his person at the time of  arrest. The next day he made a disclosure statement in the  presence of  two witnesses  that he  had hidden  the

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ornaments and  the silver  coins in a hole near a Kuhal in a forest known  as Thana  forest. He  also said that the Pattu and the  cloth bag had been hidden under a bush near Village Thana. He also stated that an axe had been given by him to a blacksmith at Shimla for sharpening on 5.9.1985. Pursuant to this statement  of the accused, the ornaments, silver coins, Pattu Bag  and axe  were recovered from the places disclosed by the accused.      The doctor  who   conducted the post-mortem examination on the  dead-body of  Kula Datt  opined that  his death  had occurred on  3.9.1985 and  had resulted from a blow given on his head with some heavy object like the reverse side of the head of  an axe,  such as  the axe recovered pursuant to the statement  of   the  accused.   Similarly,  the  doctor  who conducted the medical examination of Mathru Devi opined that the wound  on her  head was inflicted with some blunt object like the back side of the head of an axe. X-rays of the head injury suffered  by Mathru  Devi revealed  that  she  had  a fracture of  the skull.  Hence her  injury was  opined to be grievous. After  investigation  charges  were  prepared  and presented in  the court  of the  learned Judicial Magistrate 1st Class  (2),  Shimla,  who  committed  the  case  to  the Sessions Court.      The prosecution  examined 26  witnesses. Thereafter the accused was  examined under  Section  313  of  the  Code  of Criminal Procedure.  In his statement the accused denied the correctness of  the entire  evidence and pleaded that he had been falsely  implicated by  Mathru Devi  at the instance of her son-in-law  Khem Dass,  who was inimical to the accused. After considering  the entire  evidence the  Sessions  Judge convicted the accused of the charges as framed.      Mathru Devi (P.W.1) has stated in her evidence that the accused came  to her  house on  the night  2nd of September, 1985   and on the morning of 3rd of September, 1985 at about 7.00 a.m.  the accused left with her husband Kula Datt. That was the  last time  that she  saw her  husband   alive.  Her statement, that  the accused  left in  the company  of  Kula Datt, is  corroborated by  (P.W.10) Shyam Lal, a resident of Village Deola.  He has  stated in  his evidence  that on 3rd September, 1985 in the morning when he was coming to  Shimla he saw  the accused  and deceased  Kula Datt  going  towards Village Bagh. In his Cross-examination he has stated that he saw the  accused for  the first time that day. The statement of Mathru  Devi that  her husband left in the company of the accused, and  the corroborative  evidence of  Shyam Lal, has been discarded  by the  High Court  for  reasons  which  are untenable. The  High Court  has discarded  the  evidence  of Mathru Devi  on the  ground that  in her  statement  to  the police, she  had only  stated that her husband had gone with the accused  on the  morning of  3rd of  September, 1985  to Village Bagh  for some work. In her evidence, she stated the nature of the work also. She said that at the request of the accused, her  husband accompanied  him because  the  accused wanted to purchase some gold and he wanted an elderly person like her  husband to  guide him.  The basic fact that at the request  of   the  accused,   the  deceased  Kula  Datt  had accompanied the  accused to  go to  Village Bagh  on 3rd  of September, 1985,  is clearly  stated both in the evidence of Mathru Devi  as also  in her statement to the police and she should not have been disbelieved on this score. The evidence of Shyam  Lal is  also not  accepted by  the High  Court for reasons which are difficult to understand. The learned Judge has said  that there  is no  evidence to prove that the path from Deola to Bagh "falls in the way" if one goes from Deola to Shimla. No question in this connection was asked in cross

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examination of  Shyam Lal.  The testimony  of Shyam  Lal  is quite clear  about  seeing  the  accused  and  the  deceased together on  the morning  of 3rd  September,  1985  and  the evidence of  both these  witnesses ought  not to  have  been rejected by the High Court.      The evidence  of Durga  Dass also  Clearly  shows  that sometime in  the afternoon  of 3rd or September, 1985 Mathru Devi and  the accused  had come  to him  and Mathru Devi had enquired about  the whereabouts  of her  husband.  This also establishes the presence of the accused in the Village Deola on the afternoon of 3rd of September, 1985. The visit of the accused to  the house  of Mathru  Devi on  3rd of September, 1985 is  also corroborated by the evidence of (P.W.16) Bimla Devi who  has deposed that on 3rd of September, 1985 she had gone to  Kula Datt’s  house in  Deola Village when she found that Kula  Datt’s wife  Mathru Devi  and the accused Manohar Singh were present. Kula Datt was not present. She owed some money to  Kula Datt  on account  of the  price of some grass which she  had purchased  from him.  She  paid  Rs.325/-  to Mathru Devi  for the  price of that grass. When she enquired from Mathru  Devi as  to where  Kula Datt had gone, she told Bimla Devi  that Kula Datt had gone to Village Bagh with the accused Manohar Singh in the morning.      The only  reason why her evidence has not been accepted by the  High Court  is that  the village of Bimla Devi is at distance of about 10 or 12 kilometers from the house of Kula Datt and,  therefore, she could not have been expected to be present at  the house  of Kula  Datt. This  reasoning of the High Court  is patently  unacceptable when  Bimla  Devi  has explained her  presence at  the house of Kula Datt by saying that she had come to pay the price of grass to Kula Datt.      Mathru Devi  has also deposed in detail about what took place on  the night  of 3rd  of September,  1985, about  her being given  the key  of the  box which  normally used to be kept with  her husband,  by the accused. She has also stated that the  accused said  that he  had brought the key so that she could  take out  the money and ornaments from the box as they were  required for  paying a ransom to the dacoits. She had further  deposed that she accompanied the accused on the night  of  3rd  of  September,  1985  along  with  cash  and ornaments as  well as  the pattu,  to Panchayat  Ghar in the hope of  finding her husband and daughter there. Instead the accused hit her on the head with a heavy object and decamped with cash  and  ornaments.  She  fell  unconscious  and  she regained consciousness  only on  the morning  of the  4th of September, 1985.  The medical  evidence regarding  her  head injuries is also quite clear. This evidence is not shaken in cross examination.      Durga Dass  in his evidence has also stated that he saw Mathru Devi,  partly walking and partly crawling coming from the direction  of Panchayat  Ghar  on  the  morning  of  4th September, 1985  and that when she reached his door she fell unconscious. When the accused was arrested currency notes of the value  of Rs.2,000/-  were found  on his  person.  Cash, ornaments and  axe have  also been recovered on the basis of the statement  given by  the accused.  Even if  we disregard this part  of the  evidence for  the sake  of arguments, the evidence of  Mathru Devi  is not shaken in cross-examination and  is   corroborated  in  material  particulars  by  other witnesses. There  is no  reason why  the evidence  of Mathru Devi and  Durga Dass  should be  disbelieved. The High Court has rejected  her evidence  merely because  there  are  more details in her evidence than her statement. It has failed to note that  the statement  was recorded at a time when Mathru Devi had  suffered  grievous  head  injuries  and  had  been

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unconscious as a result, for several hours.      The  medical   evidence  relating  to  the  post-mortem disclosing death  on account  of injuries caused on the head of the  deceased by a heavy blunt object such as the back of the head  of an axe is also unequivocal. The injuries on the head of  Mathru Devi  are similar.  The evidence  of  Mathru Devi, an injured witness, ought not to have been discarded.      The   entire    approach   of   the   High   Court   is unsatisfactory. For  example, (P.W.9) Mauji Ram, the brother of the  deceased has  deposed that  he was  not  present  at village Deola on 3rd of September, 1985 since he had gone to Shimla to  receive his  pension. On  4th of  September, 1985 while returning  he learnt about the murder of the deceased. The High  Court has  commented that  it is  surprising  that Mauji Ram  never saw  the accused entering the house of Kula Datt. If  Mauji Ram  was not  present at his house on 3rd of September, 1985 and was returning to the village only on 4th of September,  1985, one  fails  to  see  how  he  could  be expected to have seen the accused on 3rd of September, 1985. Mauji Ram  seeing or  not seeing  the accused  on any  other occasion is  not of  much significance  when there  is clear evidence of the accused being present on 3.9.1985 in village Deola at the  house of the deceased.      The High  Court has  also observed  that  there  is  no direct or  circumstantial evidence  to  establish  that  the accused had  inflicted head  injury to Kula Datt as a result of which  he died.  But the  Sessions Court  has set out the entire chain  of circumstances  leading  to  this  inference alone. The evidence establishes that Kula Datt was last seen alive on  the morning  of 3rd  of September,  1985 going  to Village Bagh  in the  company of  the accused.  The  accused returned alone to the house of Mathru Devi within 3 hours at 10 a.m.  on 3rd  of September,  1985 and gave Mathru Devi an excuse for  the absence  of Kula  Datt. The fact that Mathru Devi was searching for her husband on 3rd of September, 1985 is corroborated  by the  evidence  of  Durga  Dass.  He  has deposed that the deceased was not seen by him in the village that day.  The presence  of the  accused at the house of the deceased on  3rd September, 1985 is also corroborated by the evidence of  Bimla Devi.  The entire  narration of events by Mathur Devi has not been shaken in cross examination. She is an injured  witness. She has deposed that the key of the box which used  to be  with the  deceased was  produced  by  the accused. She  had given detailed evidence as to how she came to sustain  those injuries  at the  hands of the accused and how she  was duped  by the  accused into  going to Panchayat Ghar at  night with  valuables which  were taken away by the accused. There  was no  reason why  her evidence  would have been discarded  by the  High Court.  There is also no reason why Mathru  Devi should have falsely implicated the accused. The High  Court ought not to have disbelieved Mathru Devi on the ground  that the  events as narrated by Mathru Devi were not convincing because the accused could have killed the old couple in  their own  house. These are pure conjectures.  It is true  that some  details of  the evidence given by Mathru Devi are  missing in  her initial  statement to  the police. But  her   statement  substantially   contains  the   entire narration of events to which she has deposed in her evidence before the  court.   The Sessions Judge has rightly observed that the  statement of Mathru Devi was recorded when she was in an injured and shocked condition and her mental faculties were not  up to the mark.   It is possible that she may have missed out some of the details.  Thus the evidence of Mathru Devi clearly  establishes the  guilt of  the  accused  under Section 307/394  read with  Section 397  of the Indian Penal

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Code.      There  is   also  sufficient   circumstantial  evidence against the  accused to  convict him  under Section 302. The accused and  the deceased  were last  seen  together.    The deceased gave  a false  explanation to Mathru Devi about the deceased having  stayed back  in the  village; the key which used to  remain on  the person  of the  deceased was  in the possession of  the accused on the night of 3rd of September, 1985. The  dead body of the deceased was found at bagh nulla - in  the direction  in which  the accused  and the deceased were observed as going.  The death occurred on 3.9.1985. The injuries which  were inflicted by the accused on the head of Mathru Devi  on the  night of  3.9.1985 are  similar to  the injuries which  were found  on the dead body of Kula Datt as per medical  evidence. The  axe of  the accused was found as directed by the accused who stated that he had delivered the axe for  sharpening on 5th of September, 1985.  The currency notes of  Rs.2,000/- were  also found  on the  person of the accused when he was arrested.      Looking to  the totality of evidence the Sessions Judge rightly convicted  the  accused  of  all  the  charges.  The observation of  the Sessions  Judge, however,  that this was one of  the rarest  of rare  crimes does  not appear  to  be justified.  Crimes such as murder are committed for gain and there is  nothing exceptionally gruesome about the manner of committing this  murder.   A murder  by its  very nature  is shocking.  But that per se does not justify death penalty.      We, therefore,  set aside the order of acquittal passed by the High Court and confirm the order of conviction by the sessions Court.  However, the  death sentence imposed by the Sessions  Court   is  set   aside  and   is  substituted  by imprisonment for life. The sentence of rigorous imprisonment for ten  years and  fine  of  Rs.500/-  for  offences  under Section 307  and 394  read with  Section  397  is  restored. Sentences  to   run  concurrently.  The  appeal  is  allowed accordingly.