@JUDGMENTTAG-ORDER
Piar Singh Rana, J.@mdashPresent appeal is filed against the judgment passed by learned Presiding Officer Fast Track Court Mandi HP in Sessions Trial No. 1 of 2007 titled State of HP Vs. Hema Devi decided on 27.3.2008.
BRIEF FACTS OF THE PROSECUTION CASE:
2. Brief facts of the case as alleged by prosecution are that on dated 18.4.2006 at about 5.30 PM at village Shilli-Dogari accused Hema Devi strangulated deceased Hima Devi @ Phithi wife of Dila Ram with a plastic rope and committed her murder intentionally. It is further alleged by prosecution that on dated 18.4.2006 a telephonic message was received from Dila Ram Vice President that a quarrel picked up between his two wives Hima Devi @ Phithi deceased and Hema Devi accused at village Shilli-Dogari in the residential house of accused. It is further alleged by prosecution that rapat No. 21 was recorded in daily diary Ext PW12/A. It is further alleged by prosecution that after recording rapat in daily diary ASI Prem Lal along with HHC Mohan Singh and HC Ranjeet Singh proceeded to spot. It is further alleged by prosecution that after reaching at the spot at about 5.30 PM statement of PW1 Narvada Devi Ext PW1/A under Section 154 Cr PC was recorded and same was sent to police station Gohar through constable Dev Raj for registration of case. It is further alleged by prosecution that on the basis of statement recorded under Section 154 Cr PC Ext PW1/A FIR No. 50 of 2006 Ext PW13/B was registered. It is further alleged by prosecution that PW18 ASI Prem Lal took photographs of deceased Hima Devi @ Phithi through photographer Sh Gian Chand. It is further alleged by prosecution that photographs took at the spot are Ext PW11/A to Ext PW11/14 and its negatives are Ext PW11/15 to Ext PW11/28. It is further alleged by prosecution that ASI Prem Lal inspected the dead body of deceased Hima Devi @ Phithi and found ligature marks around the neck of deceased Hima Devi @ Phithi. It is further alleged by prosecution that after taking photographs of deceased Hima Devi @ Phithi ASI Prem Lal filled up form 23-35(1)(A) and form 25-35(1) (B) which are Ext PW18/A to Ext PW18/B. It is further alleged by prosecution that thereafter PW18 ASI Prem Lal wrote an application Ext PW10/A to Medical Officer Zonal Hospital Mandi for conducting post mortem of deceased Hima Devi @ Phithi and obtained post mortem report Ext PW10/B. It is further alleged by prosecution that two pieces of rope Ext P1 and Ext P2 were took into possession vide memo Ext PW2/A which was handed over to police by PW2 Dila Ram in the presence of witnesses Narvada Devi and Uttam Singh. It is further alleged by prosecution that weapon of offence Ext P1 and Ext P2 were sent to Zonal Hospital Mandi through HC Muni Lal. It is further alleged by prosecution that site plan Ext PW18/C was prepared. It is further alleged by prosecution that disclosure statement Ext PW3/A was given by accused Hema Devi in the presence of Narvada Devi and Ajay Kumar. It is further alleged by prosecution that site plan Ext PW18/J was prepared. It is further alleged by prosecution that one piece of wood stained with blood was taken into possession from the room of accused. It is further alleged by prosecution that tatima Ext PW4/A and jamabandi Ext PW4/B of the place of incident also got prepared from Patwari Halqua. It is further alleged by prosecution that two pieces of ropes Ext P1 and Ext P2 and a packet containing blood stained wooden piece Ext P3 were deposited with MHC along with viscera of deceased Hima Devi @ Phithi. It is further alleged by prosecution that on dated 19.4.2006 at about 11.45 AM statement of PW1 Narvada Devi under Section 154 Cr PC was recorded. It is further alleged by prosecution that on dated 20.4.2006 PW13 HC Inder Singh sent viscera of deceased Hima Devi @ Phithi and one parcel sealed with seal impression ''ZH'' to Forensic Science Laboratory Junga through HHC Madan Singh vide road certificate No. 11/2006. It is further alleged by prosecution that after analysis of viscera and other related case property, reports of FSL Junga Ext PY and Ext. PZ were received. Accused did not plead guilty and claimed trial. Charge was framed against the accused under Section 302 IPC on dated 10.1.2007.
3. The prosecution examined as many as eighteen witnesses in support of its case:
4. Prosecution also produced following piece of documentary evidence in support of its case:-
5. Statement of accused was also recorded under Section 313 Cr.P.C. Accused did not examine any defence witness. Learned trial Court acquitted the accused qua charge under Section 302 IPC.
6. Feeling aggrieved against the judgment passed by learned Trial Court appellant State of HP filed present appeal.
7. We have heard learned Additional Advocate General appearing on behalf of the appellant State of HP and learned Advocate appearing on behalf of respondent and also gone through the entire record carefully.
8. Question that arises for determination before us is whether learned trial Court did not properly appreciate oral as well as documentary evidence placed on record and learned trial Court had committed miscarriage of justice as alleged in memorandum of grounds of appeal.
ORAL EVIDENCE ADDUCED BY PROSECUTION:
9. PW1 Smt. Narvada Devi has stated that she knows accused Hema Devi present in Court who is her elder mother in relation. She has stated that her father Dila Ram had two wives namely Hema Devi accused who is first wife and deceased Hima Devi @ Phithi was his second wife. She has stated that deceased Hima Devi @ Phithi was the second wife of Dila Ram. She has stated that accused Hema Devi has three children who are all married and they live in village Jhrenthi. She has stated that deceased Hima Devi @ Phithi had no issue. She has stated that she was adopted by deceased Hima Devi @ Phithi as her daughter. She has stated that she married to Hem Raj and she lives with him at village Tungadhar. She has stated that accused Hema Devi used to reside at village Shilli-Dogari and deceased Hima Devi @ Phithi used to reside with her parents at village Tungadhar along with her husband Dila Ram. She has stated that on dated 18.4.2006 she visited Tungadhar in the morning in her parental house and thereafter she went back to her matrimonial house as her father-in-law was ill. She has stated that at about 10 AM her mother deceased Hima Devi @ Phithi told her that she would go to Shilli-Dogari to leave oxen in the residential house of accused. She has stated that thereafter her father had gone to graze his sheep in his orchard. She has stated that she reached at her parental house at about 2 PM and her father Dila Ram also reached at that time at Tungadhar. She has stated that she inquired from her father Dila Ram about her mother and he told her that deceased had gone to Shilli-Dogari in the residential house of accused to leave oxen. She has stated that thereafter she along with her father went to Shilli-Dogari in search her mother and when they reached near Shilli-Dogari she called her mother but she did not receive any response. She has stated that thereafter she along with her father came back at village Tungadhar. She has stated that thereafter her father rang up her younger brother Kamal Dev and inquired from him about deceased Hima Devi @ Phithi whether deceased had reached. She has stated that her brother Kamal Dev replied that deceased had not reached. She has stated that at about 6.30 PM Uttam Singh, Jaswant Singh and Kamal Dev came to her house and Uttam Singh told that he met accused Hema Devi in village Jhrenthi path. She has stated that Uttam Singh told her that accused Hema Devi informed him that deceased and accused picked up a quarrel and accused does not know whether deceased Hima Devi was alive or dead. She has stated that thereafter she and her father Dila Ram, Jaswant Singh and Kamal Dev and other villagers went to village Shilli-Dogari. She has stated that villagers told her to return back to her house as she was pregnant. She has stated that thereafter dead body of deceased was brought to Tungadhar. She has stated that she did not see dead body of deceased because she was pregnant and as per custom pregnant woman is not supposed to see the dead body. She has stated that thereafter her father informed police about the incident. She has stated that she suspected that her mother was killed by accused Hema Devi. She has stated that police also visited and her statement Ext PW1/A under Section 154 Cr PC was recorded. She has stated that there was some dispute regarding land between the deceased and accused. She has admitted that accused Hema Devi is living with her son. She has stated that Dila Ram was retired Kanungo from revenue department. She has denied suggestion that her father Dila Ram had intimated his son Kamal Dev on telephone to return back to his house as deceased Hima Devi had committed suicide at village Shilli-Dogari. She denied suggestion that deceased used to pick up quarrel with Dila Ram. She denied suggestion that deceased tried to kill Dila Ram with the blow of ''Drat'' (Sharp edged weapon) in the month of March 2006. She denied suggestion that deceased was bent upon to kill Dila Ram. She has admitted that she inherited the property of deceased on the basis of registered will. She has stated that she has cordial relation with Dila Ram. She has stated that Dila Ram brought the dead body of deceased Hima Devi from village Shilli-Dogari. She denied suggestion that Dila Ram has kept one Smt. Bhuvneshwari Devi as his third wife. She has denied suggestion that she and Dila Ram had strained relations with the accused.
9.1 PW2 Dila Ram has stated that deceased Hima Devi @ Phithi and accused Hema Devi are his wives. He has stated that deceased has no issue and accused has three children who are all married. He has stated that his second wife deceased used to reside at her parental house at Tungadhar. He has stated that he used to reside at village Tungadhar as well as with accused. He has stated that PW1 Narvada Devi is adopted daughter of deceased Hima Devi @ Phithi. He has stated that on dated 18.4.2006 he was at village Tungadhar with deceased and accused Hema Devi was at village Shilli-Dogari. He has stated that deceased had gone to village Shilli-Dogari at 11 AM to leave two oxen with accused. He has stated that he had gone to graze sheep in his orchard at Tungadhar. He has stated that his adopted daughter Narvada Devi reached at home at about 2 PM. He has stated that Narvada Devi inquired about deceased mother and he told that deceased had gone to village Shilli-Dogari to return oxen of accused. He has stated that thereafter he along with his daughter Narvada went to village Shilli-Dogari. He has stated that at Shilli-Dogari Narvada called her mother by name but no response was given by deceased. He has stated that he thought that both deceased and accused would have gone to village Jhrenthi. He has stated that at about 6 PM he inquired from his son Kamal Singh and asked from him as to whether deceased Hima Devi @ Phithi was available or not. He has stated that thereafter he along with Narvada came back at village Tungadhar. He has stated that at about 6.30 PM Uttam Singh, Kamal Singh and Jaswant Singh reached at his home and Uttam Singh told him that he met accused Hema Devi on the Jhrenthi path. He has stated that all three persons told him that accused and deceased had a quarrel with each other. He has stated that accused Hema Devi told that she does not know about whereabouts of deceased Hima Devi @ Phithi whether she was alive or dead. He has stated that thereafter he along with Uttam Singh and his son visited village Shilli-Dogari and some villagers were also accompanied with him. He has stated that when they reached village Shilli-Dogari they found that dead body of deceased was lying down near the door of kitchen and neck of the deceased was tied with a plastic rope. He has stated that he was under the impression that deceased was alive and in order to save the deceased he removed the plastic rope from her neck. He has stated that after removing the plastic rope from neck of deceased he saw that there was ligature marks around the neck and there was blood clot out side the right ear of deceased Hima Devi @ Phithi. He has stated that thereafter dead body was brought to village Tungadhar. He has stated that he informed the police and thereafter the police visited his house. He has stated that police recorded the statement of Narvada Devi, Uttam Singh, Jaswant Singh and Kamal Singh. He has stated that he handed over plastic rope to Police which was took into possession vide memo Ext PW2/A in the presence of witness Uttam Singh. He has stated that post mortem of deceased was conducted at Zonal Hospital Mandi. He has stated that during post mortem the ornaments of deceased were handed over to him vide memo Ext PW2/B and dead body of deceased was also handed over to him vide memo Ext PW2/C. He has stated that police also obtained photographs of deceased Hima Devi @ Phithi. He has stated that he solemnized marriage with deceased Hima Devi @ Phithi in the year 1975-76 and entries to this effect were recorded in the panchayat record. He has denied suggestion that deceased was not his legally wedded wife. He has stated that deceased has adopted PW1 Narvada as her daughter. He denied suggestion that deceased used to quarrel with him. He denied suggestion that deceased used to threat PW1 Narvada Devi to disinherit her. He denied suggestion that in the month of March 2006 deceased had tried to kill him with blow of ''Darat'' (Sharp edged weapon). He denied suggestion that he stopped to provide the maintenance to accused Hema Devi and her children. He denied suggestion that he has no cordial relations with accused Hema Devi.
9.2 PW3 Narvada Devi has stated that accused is known to her. She has stated that Dila Ram is also known to her. She has stated that she was associated by police in the investigation. She has stated that on dated 18.4.2006 Dila Ram telephonically informed her that his wives had picked up quarrel and told her to come his house on which she visited at village Tungadhar. She has stated that police was also present in the house of Dila Ram and dead body was also lying in the verandah of Dila Ram. She has stated that at the instance of police she removed the clothes of the dead body of deceased Hima Devi @ Phithi and she saw injuries on the person of deceased. She has stated that there was one injury on the back of right ear and one injury on the forehead and blood clot was also present on the ear. She has stated that left leg of the deceased was blackened. She has stated that she inspected the dead body on dated 19.4.2006 in the morning hour around 5.30 AM. She has stated that accused had disclosed the place of incident where accused picked up a quarrel with deceased Hima Devi @ Phithi. She has stated that deceased was strangulated with the help of a plastic rope. She has stated that accused had given disclosure statement in the presence of Dolma Devi and Ajay Kumar. She has stated that plastic rope Ext P1 and P2 were took into possession by police and blood stained lying on the floor was also took into possession. She has stated that police prepared Ext PW3/A, Ext PW3/B and Ext PW3/C at about 1 PM at village Shilli-Dogari. She has stated that accused had not made any disclosure statement to the police. She has stated that Deputy Superintendent of Police told her that accused had made extra judicial confession and she signed Ext PW3/A, Ext PW3/B and Ext PW3/C in a good faith.
9.3. PW4 Ajay Kumar has stated that he was posted as Patwari in circle Tungadhar since 2005. He has stated that on dated 19.4.2006 he was associated by police in the investigation. He has stated that during investigation he issued tatima Ext PW4/A and jamabandi Ext PW4/B. He has stated that police took blood stained piece of wood vide memo Ext PW3/C and bears his signature. He has stated that on dated 19.4.2006 accused Hema Devi had not given any statement before him. He was declared hostile. He has admitted that memo Ext PW3/A bears his signature. He has admitted that Narvada Devi and Dolma Devi have also appended their signatures and accused Hema Devi also appended her thumb impression on Ext PW3/B. He has stated that document Ext PW3/A and Ext PW3/B were prepared by police in his presence as he was busy in preparing tatima and jamabandi. He has stated that he signed Ext PW3/A and Ext PW3/B in good faith at the instance of police officials. He has stated that accused had not put her thumb impression over Ext PW3/A and Ext PW3/B in his presence. He has stated that accused had not given any disclosure statement in his presence.
9.4 PW5 Dolma Devi has stated that deceased Hima Devi was married to Dila Ram. She has stated that on dated 19.4.2006 she along with president Narvada Devi and sons of the deceased went with accused to Shilli-Dogari and accused has given disclosure statement that a quarrel took place between the accused and deceased in a kitchen room. She has stated that accused told her that when deceased fell on the floor thereafter accused strangulated the deceased with rope to kill her. She has stated that accused told that thereafter accused left village Shilli-Dogari leaving the deceased in kitchen at village Shilli-Dogari. She has stated that she along with President Narvada Devi put her signature and accused put her thumb impression on Ext PW3/B.
9.5 PW6 Uttam Singh has stated that Dila Ram is his elder brother. He has stated that deceased used to live with her parents at village Tungadhar and his brother was also living with deceased at village Tungadhar. He has stated that on dated 17.4.2006 the accused Hema Devi was at home as she was sowing maize crop. He has stated that prior to 17.4.2006 accused used to graze the cattle in the forest at Shilli-Dogari. He has stated that on dated 15.4.2006 deceased took oxen from village Shilli-Dogari to village Tungadhar. He has stated he could not say at whose permission deceased took the oxen from village Shilli-Dogari to village Tungadhar. He has stated that he did not know when deceased returned oxen at village Shilli-Dogari. He has stated that on dated 18.4.2006 Kamal Singh received a telephonic message from his brother Dila Ram that deceased had gone to village Shilli-Dogari to return oxen but deceased did not come back after returning oxen. He has stated that thereafter he along with Kamal Singh and Jaswant went to village Tungadhar and on the way to village Tungadhar they did not meet the accused. He has stated that his brother Dila Ram had handed over two rope Ext P1 and Ext P2 which were took into possession by police vide Ext PW2/A. He has denied suggestion that on dated 18.4.2006 accused was at village Shilli-Dogari. He denied suggestion that when deceased went to village Shilli-Dogari to return the oxen to accused there quarrel took place between accused and deceased. He denied suggestion that in the process of scuffle deceased fell down on the floor and thereafter accused strangulated the deceased with the help of plastic rope. He denied suggestion that on dated 17.4.2006 and 18.4.2006 the accused was not showing maize crop. He denied suggestion that in order to save the accused he deposed falsely. He has admitted that Dila Ram asked him to accompany to village Shilli-Dogari to bring the deceased from village Shilli-Dogari at village Tungadhar. He has admitted that when they reached at village Shilli-Dogari they saw rope Ext P1 and Ext P2 was encircled around the neck of deceased and left portion of the rope was under the door of the kitchen. He has stated that rope Ext P1 and Ext P2 was single rope and the rope was cut into two pieces by his brother Dila Ram. He has stated that there were no knots applied in the neck of deceased and plastic rope was simply encircled at three places around the neck. He has admitted that deceased also used to pick up quarrel with her husband Dila Ram. He has stated that in the month of March 2006 deceased hit her husband Dila Ram with a blow of ''Darat'' (Sharp edged weapon) but due to woolen coat Dila Ram did not receive any injury.
9.6 PW7 Kamal Singh has stated that he is elder son of Dila Ram and accused Hema Devi. He has stated that deceased was the second wife of his father Dila Ram. He has stated that deceased Hima Devi was living at village Tungadhar with her parents. He has stated that his mother used to resides in village Jhrenthi. He has stated that accused used to graze cattle at village Shilli-Dogari. He has stated that on dated 16.4.2006 deceased took two oxen from accused to Tungadhar and on dated 18.4.2006 the deceased brought back the oxen to village Shilli-Dogari. He has stated that he does not know to whom deceased handed over the oxen. Self stated that oxen were kept in the cow shed situated at village Shilli Dogari. He has stated that on dated 18.4.2006 his father Dila Ram rang him on his mobile and told that deceased had gone to village Shilli-Dogari to return back ox but deceased did not come back from village Shilli-Dogari and asked him to come to village Tungadhar. He has stated that while he was going to village Tungadhar the accused did not meet him on the way and did not disclose anything to him. He has denied suggestion that his mother Hema Devi resides at village Shilli-Dogari. He denied suggestion that there was a dispute regarding land between the deceased and accused. He has admitted that rope Ext P1 and Ext P2 was single piece which was encircled around the neck of the deceased and left out portion was pressed under closed door of the kitchen situated at Shilli-Dogari. He has admitted that one portion of the rope was underneath the door and the other portion of the rope was around the neck of the deceased and was stretched strongly in the kitchen situated at Shilli-Dogari. He has admitted that his father is not providing any maintenance to accused Hema Devi.
9.7 PW8 Narain Singh has stated that he was Secretary of Radha Swami Satsang at Kuthah during the year 2006. He has stated that member of Radha Swawmi Satsang requested Dila Ram to sell one biswa of land for the purpose of widening the existing path leading towards Satsang land. He has stated that Dila Ram told him that he would consult with his brothers and co-sharers of land but the same could not be executed due to the fact that when the head of Satsang visited at Kuthah for inspection of the spot Dila Ram was not present. He has denied suggestion that he was not Secretary of Radha Swami Satsang. He denied suggestion that he did not meet Dila Ram at any point of time.
9.8 PW9 Hem Raj has stated that during the year 2006 he was associated in the investigation of the case. He has stated that on dated 19.4.2006 the ornaments i.e. one nose stud, two ear rings and two ear stud of gold and three bangles of brass of deceased Hima Devi @ Phithi were handed over to Dila Ram by the doctor Zonal Hospital Mandi vide memo Ext PW2/B in the presence of Shiv Lal. He has stated that dead body of the deceased was also handed over to Dila Ram vide memo Ext PW2/C. He has stated that he conducted the post mortem.
9.9 PW10 Dr Hemant Kapoor has stated that he was posted as Medical Officer in Zonal Hospital Mandi HP since 1998. He has stated that on dated 19.4.2006 the police has moved an application Ext PW10/A for conducting post mortem of deceased Hima Devi @ Phithi. He has stated that he and Dr. K.S. Malhotra conducted post mortem on dated 19.4.2006 at 2 PM. He has stated that dead body was brought to Zonal Hospital Mandi by police and on conducting post mortem examination doctor observed (1) That there was patch of defuse irregular echymosis 1x1/2 inch over left cheek colour was bluish and there was evidence of bleeding from right ear. (2) There was burst blister exposing denuded area involving right big, second and third toe along with lower 2 cm of dorsum of foot. (Ante mortem burns) with presence of mud. (3) There was three ligature marks around the neck. He has stated that deceased had died due to combined asphyxia and cerebral anoxia. He has stated that he preserved the viscera and sent for chemical analysis. He has stated that on analysis of samples no trace of any poison or alcohol was found. He has stated that deceased Hima Devi @ Phithi died due to cumulative effect of asphyxia and strangulation. He has stated that he issued post mortem report Ext PW10/B which bears his signature. He has stated that plastic rope Ext P1 and Ext P2 could cause ligature marks over the neck of the deceased. He has stated that injury of the deceased was found simple in nature and the ligature mark around the neck of deceased caused ultimate death of deceased. He has stated that bleeding noticed at the time of post mortem was caused by rupture of blood vessels due to sudden rise of pressure. He has admitted that injury found on the cheek of the deceased could be caused by fall at the time of strangulation. He has stated that strangulation is of three types (1) Suicidal (2) Homicidal (3) Accidental. He has admitted that rope Ext P1 and Ext P2 was made of plastic. He has admitted that he did not complete post graduation or specialization in forensic medicine.
9.10 PW11 Gian Chand has stated that he is performing the work of photographer in Aman Studio since 2000. He has stated that on dated 19.4.2006 he took photographs of deceased Hima Devi at village Tungadhar at the instance of police. He has stated that he also took photographs of the place of incident at village Shilli-Dogari. He has stated that he has seen photographs Ext PW11/1 to Ext PW11/14 and its negatives Ext PW11/15 to Ext PW11/28 which were took into possession by him and the same were handed over to the police. He has stated that he took first photograph of the dead body on dated 19.4.2006 at about 8.30 AM and handed over the photographs and negatives to PW9 Hem Ram on dated 4.5.2006. He has denied suggestion that he did not take photographs.
9.11 PW12 Mahinder Singh has stated that he was posted as Constable in Police Post Jhrenthi on dated 18.4.2006. He has stated that at about 11.25 PM a telephonic message from vice president Gram Panchayat Tungadhar was received and rapat No. 21 was recorded in roznamcha by him. He has stated that original rapat roznamcha Ext PW12/A was brought by him.
9.12 PW13 Inder Dev has stated that he was posted as MHC in Police Station Gohar on dated 19.4.2006. He has stated that on dated 19.4.2006 at about 11.45 AM LHC Dev Raj handed over to him statement under Section 154 Cr PC Ext PW1/A and thereafter he made endorsement Ext PW13/A and recorded FIR Ext PW13/B in police station Gohar. He has stated that case property was deposited with him by ASI Prem Lal on dated 19.4.2006. He has stated that on dated 20.4.2006 viscera of deceased and one more parcel sealed with seal impression ''ZH'' were deposited with him by HHC Mohan Singh. He has stated that on dated 21.4.2006 he sent viscera along with three sealed parcels to FSL Junga through HHC Mohan Singh vide RC No. 11/2006 and he handed over the same in FSL Junga and obtained receipt. He has stated that he sent case file to the spot from police station at about 12.15 PM. He has denied suggestion that rukka Ext PW1/A and FIR Ext PW13/B were falsely prepared at police station Gohar.
9.13 PW14 Mohan Singh has stated that he handed over viscera and one parcel sealed with seal impression ''ZH'' to MHC Inder Dev Police Station Gohar which were given to him by doctor. He has stated that he deposited case property with FSL Junga on dated 22.4.2006 which were handed over to him by MHC Inder Dev on dated 21.4.2006 vide RC No. 11/2006 and obtained receipt from FSL Junga and handed over the same to MHC Gohar.
9.14 PW15 Muni Lal has stated that during the year 2006 he was posted as Investigating Officer in Police Post Janjhali. He has stated that on receiving information vide rapat No. 21 Ext PW12/A he along with HHC Mohan Singh and HHC Ranjeet Singh visited the spot at Tungadhar and found dead body of deceased Hima Devi in the court yard of Dila Ram. He has stated that they kept dead body of deceased Hima Devi on guard till arrival of ASI Prem Lal Police Station Gohar. He has stated that ASI Prem Lal reached at the spot at about 3 AM on dated 19.4.2006. He has stated that ASI Prem Lal handed over to him an application Ext PW10/A. He has stated that after conducting post mortem Dr. K.S. Malhotra and Dr Hemant Kapoor handed over to him ear ring, nose pin and ear stud which were took into possession vide memo Ext PW2/B and the same were handed over to Dila Ram. He has stated that dead body was handed over by him to Dila Ram vide memo Ext PW2/C. He has stated that he recorded statements of Dr. Hemant Kapoor, Dila Ram, Hem Raj and Shiv Dayal under Section 161 Cr PC as per their versions. He has stated that they reached at the spot at 12 PM in the night. He has denied suggestion that no telephone message was received by him. He denied suggestion that false report has been recorded.
9.15 PW16 Dabe Ram has stated that he remained posted as Station House Officer Police Station Gohar in the year 2006. He has stated that on dated 18.4.2006 a telephonic message was received from HC Muni Lal Police Post Janjehli that Dila Ram vice President gram panchayat Tungadhar has informed police post Janjehli that a quarrel picked up between his two wives at village Shilli-Dogari and consequently deceased Hima Devi @ Phithi died in suspicious circumstances. He has stated that thereafter rapat No. 29 was recorded and ASI Prem Lal and LHC Dev Raj were sent for investigation of case. He has stated that on completion of investigation he prepared challan which bears his signature. He denied suggestion that no telephone message was received by him from police post Janjehli. He denied suggestion that rapat mark ''X'' is forged.
9.16 PW17 Amin Chand has stated that he remained posted in police post Janjehli as Incharge in the year 2006. He has stated that on dated 25.5.2006 he recorded statements of Dila Ram, Narain Singh and Molak Ram as per their version. He has stated that he handed over case file to Inspector Dabe Ram for preparing challan.
9.17 PW18 Prem Lal has stated that he remained posted as ASI at police station Gohar in the year 2006-2007. He has stated that on dated 18.4.2006 a telephonic message was received from police post Janjehli to the effect that rapat No. 29 was recorded. He has stated that he along with LHC Dev Raj left for the spot in a government vehicle and reached at village Tungadhar where he recorded the statement of Narvada Devi under Section 154 Cr PC Ext PW1/A. He has stated that same was sent to police station Gohar for registration of FIR through Constable Dev Raj and FIR No. 50/2006 Ext PW13/B was recorded. He has stated that he inspected the dead body of deceased Hima Devi @ Phithi and found ligature marks around the neck. He has stated that photographs of deceased Hima Devi were took by photographer Gian Chand at Tungadhar and photographs of the place of incident at village Shilli-Dogari were also taken. He has stated that photographs Ext PW11/1 to Ext PW11/14 are the same. He has stated that dead body of deceased Hima Devi and forms were handed over to HC Muni Lal for conducting post mortem of deceased. He has stated that weapon of offence i.e. two pieces of plastic rope Ext P1 and Ext P2 were presented before him by Dila Ram and same were took into possession. He has stated that he prepared site plan of village Shilli-Dogari Ext PW18/C. He has stated that he recorded statements of Uttam Singh Ext PW18/D, Dila Ram Ext PW18/E, Narvada Devi Ext PW18/F and Ajay Kumar Ext PW18/G. He has stated that he also recorded statements of Gian Chand, MHC Inder Dev, HHC Mohan Singh, Jaswant Singh, Kamal Singh and Dolma Devi as per their version. He has stated that accused was arrested on dated 19.4.2006 and disclosure statement Ext PW3/A was recorded in the presence of Narvada Devi and Ajay Kumar. He has stated that site plan was prepared and one piece of wood stained with blood was took into possession from the room of accused Hema Devi vide memo Ext PW3/C. He has stated that he saw wooden piece Ext P3. He has stated that when he reached at village Tungadhar he found that dead body of deceased Hima Devi was kept in the courtyard. He denied suggestion that accused did not make any disclosure statement. He denied suggestion that he prepared map Ext PW18/C in police station. He denied suggestion that he filed false case against the accused in connivance with Narvada Devi. He has stated that he sent dead body for post mortem through HC Muni Lal. He denied suggestion that photographs were not taken at his instance.
Additional evidence under Section 391 Code of Criminal Procedure 1973 is necessary in the ends of justice.
10. Submission of learned Additional Advocate General that additional evidence under Section 391 of the Code of Criminal Procedure 1973 is essential in the present case in order to dispose of the present appeal properly and effectively and in the ends of justice is accepted for the reason hereinafter mentioned. It is the case of the prosecution that on dated 18.4.2006 at village Shilli-Dogari accused Hema Devi strangulated deceased Hima Devi @ Phithi with the help of plastic rope and committed murder. It is also proved on record that present case is based upon circumstantial evidence and is not based upon any eye witness. It is also proved on record that dead body of deceased Hima Devi @ Phithi was found in the kitchen of accused Hema Devi situated at place Shilli-Dogari as per site plan Ext PW18/C. It is also proved on record that blood clot and dead body of deceased Hima Devi @ Phithi was found in the kitchen of accused Hema Devi at place ''D'' shown in the site plan Ext PW18/C. It is also proved on record that there was only one door measuring 3 feet in height and 33 inches in breadth in the residential house of accused at village Shilli-Dogari in which the dead body of deceased Hima Devi was found shown in site plan Ext PW18/C. It is also proved on record that the residential house of accused situated at Shilli-Dogari shown in site plan Ext PW18/C where the dead body of deceased Hima Devi was found was closed from all side and entrance to the house shown in site plant Ext PW18/C was only through the door. The prosecution did not adduce any evidence on record in order to prove that who was present in the residential house of accused Hema Devi situated at village Shilli-Dogari on dated 18.4.2006 when incident of strangulation of deceased took place. Additional evidence in the present case is necessary in the ends of justice in order to ascertain as to who was present in the residential house of accused Hema Devi on dated 18.4.2006 at Shilli-Dogari shown in site plan Ext PW18/C which was closed from all side wherein the entrance to the residential house was only through the door. As per medical evidence placed on record the death of the deceased was caused due to strangulation and it is also proved on record that plastic rope through which this strangulation was committed was found in the residential house of accused Hema Devi situated at Shilli-Dogari shown in site plan Ext PW18/C and human blood clot was also found in the residential house of accused Hema Devi as per site plan Ext PW18/C placed on record. Court has carefully perused site plan Ext PW18/C placed on record qua village Shilli-Dogari where the dead body of deceased Hima Devi was initially found in the residential house of accused Hema Devi. One wood stained with blood Ext P3 was also found in residential house of accused situated at Shilli-Dogari shown in site plan Ext PW18/C. It is well settled law that Section 391 of the Code of Criminal Procedure 1973 is an exception to the general rule that an appeal must be decided on the evidence which was before the trial Court. See
11. Submission of learned Advocate appearing on behalf of the respondent that additional evidence is not essential in the present case is rejected being devoid of any force for the reason hereinafter mentioned. As per site plan Ext PW18/C it is proved on record that dead body of deceased Hima Devi was found in the residential house of accused Hema Devi on dated 18.4.2006 at about 5.30 PM. We are of the opinion that in the ends of justice and in order to dispose of the present appeal properly and effectively additional evidence is essential in the present case in order to ascertain as to who was present in the residential house of accused Hema Devi which was closed from all side on dated 18.4.2006 at 5.30 PM where dead body of Hima Devi @ Phithi was found by way of strangulation through plastic rope at place Shilli-Dogari.
12. In view of the above stated facts we direct learned Sessions Judge Mandi to take additional evidence under Section 391 of the Code of Criminal Procedure in the present case qua factum that who was present in the residential house of accused Hema Devi situated in place Shilli-Dogari shown in site plan Ext PW18/C on dated 18.4.2006 at 5.30 PM when death of Hima Devi @ Phithi took place by way of strangulation. We further direct that accused or her Advocate shall have the right to be present when the additional evidence would be recorded by learned Sessions Judge in the present case. We further direct that additional evidence would be recorded by learned Sessions Judge Mandi subject to provision of Chapter XXIII of the Code of Criminal Procedure 1973 as an inquiry. Learned Sessions Judge Mandi will submit additional evidence along with his report to the Registrar Judicial of Hon''ble High Court of HP within one month after receipt of file. Original file of learned trial Court be transmitted to learned Sessions Judge Mandi alongwith certified copy of order forthwith. After receipt of additional evidence along with report from learned Sessions Judge Mandi, learned Registrar Judicial will list the case for further hearing. A certified copy of site plan Ext PW18/C will be sent to learned Sessions Judge Mandi for guidance along with certified copy of order.
