Himachal Pradesh High Court

Jamna Devi vs State Of Himachal Pradesh on 13 October, 2023

Bench: Virender Singh

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Criminal Revision No.296 of 2023

                                               Reserved on : 02.08.2023





                                               Decided on : 13.10.2023

    Jamna Devi                                                               ...Petitioner





                                              Versus





    State of Himachal Pradesh                                              ...Respondent

    Coram

The Hon'ble Mr. Justice Virender Singh, Judge.

Whether approved for reporting?1

For the petitioner : Mr. Naresh K. Sharma, Advocate.

For the respondent : Mr. Mohinder Zharaick, Mr. Tejasvi

Sharma & Mr. H.S. Rawat, Additional Advocate General.

Virender Singh, Judge.

PetitionerJamna Devi has filed the present

revision petition, under Section 397, read with Section 401

of the Code of Criminal Procedure (hereinafter referred to

as 'the Cr.PC') against the order dated 29.03.2023, passed

by the Court of learned Sessions Judge, Bilaspur, District

Bilaspur (hereinafter referred to as the 'trial Court').

Whether Reporters of local papers may be allowed to see the judgment? Yes.

2. Vide order dated 29.03.2023, the learned trial

Court has framed the charges, under Section 201, read

with Section 34 of the Indian Penal Code (hereinafter

referred to as 'the IPC'), against the petitioner, in Sessions

Trial No.39/7 of 2022, titled as State of H.P. versus

Jagdish Chand & another, arising out of FIR No.90 of

2022, registered under Sections 302, 201 read with Section

34 IPC, with Police Station, Ghumarwin, District Bilaspur,

H.P.

3. According to the petitioner, after registration of

FIR No.90 of 2022, dated 13.5.2022, the police has

submitted the charge sheet, in the Court of learned

Additional Chief Judicial Magistrate, Ghumarwin, District

Bilaspur, who has committed the same to the Court of

Sessions, for trial.

4. The report, under Section 173(2) Cr.PC, has

been filed, on the basis of the following facts:

4.1. Statement of complainant Amit Kumar, was

submitted to Police Station, Ghumarwin, by Inspector/

SHO, Police Station, Ghumarwin, District Bilaspur, for

registration of FIR.

4.2. In the statement under Section 154 Cr.PC, the

complainant has got recorded that he is resident of Village

Sandyar, Post Office Chhat, Tehsil Ghumarwin, District

Bilaspur, H.P., and working with Ashish Sharma, on his

stone crusher.

4.3. On 12.5.2022, at about 11.15 p.m., he was

sleeping at his house. At that time, Pradhan Gram

Panchayat, Suman Chandel, telephonically informed him

that Jagdish Chand and Arvind @ Dhikka are quarreling

with each other.

4.4. Complainant has been directed to go there,

upon which, the complainant had gone to the house of

Arvind @ Dhikka. He was not found at his residence, upon

which, complainant, Gulshan and Pyar Singh, had gone

towards the road, then, they noticed that Arvind @ Dhikka,

was lying in injured condition, near the house of Hari Ram

at Sandyar. There was no movement in the body nor any

sign of life was noticed, upon which, Pradhan was

informed.

4.5. The Pradhan, Gram Panchayat also reached

there. She has noticed that both the hands of Arvind @

Dhikka were found to be chopped with sharp edged

weapon. On the right arm, a deep cut wound was noticed.

According to the complainant, due to this fact, Arvind @

Dhikka, died.

4.6. The complainant has also got recorded that

about this quarrel, Jagdish Chand has already informed

the Pradhan, Gram Panchayat, disclosing therein that he

had a quarrel with Arvind @ Dhikka.

r According to the

complainant, Jagdish Chand had killed Arvind @ Dhikka

(hereinafter referred to as 'the deceased').

5. On the basis of the said statement, the police

registered the case under Section 302 IPC and criminal

machinery swung into motion.

6. The then SHO, Ghumarwin, has conducted the

investigation, visited the spot and got clicked the

photographs. Accused was also interrogated. Dead body of

Arvind @ Dhikka, was then sent for postmortem. Physical

evidence, so found, from the spot, were also collected.

7. When, the matter was inquired from the

accused Jagdish, he has disclosed that on 12.5.2022,

during the evening time, he was present at the shop of

Sunil Kumar, where, Karan and Arvind @ Dhikka met him.

After sometime, Karan had gone to his house, whereas,

accused and Arvind came back to their house. Near his

house, Arvind alighted from the motorcycle. Arvind @

Dhikka was not interested to go to his house, but, he has

forced him to go there. Arvind @ Dhikka also slapped him,

upon which, accused Jagdish become furious. Thereafter,

accused Jagdish had gone to his cow shed and brought a

drat (big sickle) and inflicted 34 blows, on the arms of

deceased. Thereafter, he has left the spot. When, the

police reached at his spot, Arvind @ Dhikka, was already

dead.

8. The expert of IGMC has given their opinion,

which is reproduced as under:

"in my provisional opinion the cause of death in this case is haemorrhagic shock

secondary to upper limb injuries caused by a woodentaly sharp edged weapon."

9. After arrest of accused Jagdish, he was

interrogated. On 18.5.2022, the accused has made a

statement, under Section 27 of the Indian Evidence Act,

and got recovered the weapon of offence and blood stained

clothes, worn by him, which, according to him, had also

been burnt. The same were taken into possession. One

Rs.10/ coin was also found there.

10. When, the wife of the accused, Jamna Devi

(petitioner in the present case), was inquired, she has

disclosed that on the night of 12.5.2022, her husband,

when came back to the house, his clothes, were blood

stained and the drat was also having the blood stains. Her

husband has disclosed to her that a quarrel had taken

place with Dhikka. It has also been disclosed by him that

he has chopped his both arms with Darat. She has also

deposed that he has removed those clothes, after taking

bath. Thereafter, her husband told her that those clothes

are to be destroyed.

11. At the instance of her husband, she had

accompanied him for some distance. Thereafter, she got

frightened and came back. She does not know, where, her

husband had concealed the drat and clothes.

12. According to the police, accused Jagdish Chand

had disclosed this fact to the petitioner and in case, she

wanted, she could have prevented her husband from

burning those clothes and could have also informed the

family members of Arvind. She has also disclosed that she

was having the mobile phone number 8894595011, but,

she was not using the same. However, as per the CDR, it

was found that on the night of 12.5.2022, she had talked

with her brother and she had concealed this fact.

13. The police has also alleged against her that she

was knowing each and every aspect of the crime. Had she

been disclosed this fact to the family members of the

deceased, then, the life of the deceased could have been

saved. She intentionally helped her husband to destroy

the evidence, as such, Sections 201 and 34 IPC, was

added, in this case, and she was also arrested.

14. After completion of the investigation, the police

filed the report under Section 173(2) Cr.PC, mentioning

therein that a case under Sections 302, 201 and 34 IPC is

made out, against accused Jagdish Chand, whereas, a case

under Section 201 and Section 34 IPC, is made out,

against Jamna Devi.

15. Learned trial Court has framed the charge,

under Section 201 IPC, read with Section 34 IPC, against

petitioner, Jamna Devi, vide order dated 29.03.2023.

16. Feeling aggrieved from the said order, the

present revision petition has been filed before this Court,

on the ground that no prima facie case is made out against

the petitioner, for framing of charge, under Section 201

read with Section 34 IPC.

17. According to the petitioner, there is nothing on

the file, on the basis of which, the charges, as

aforementioned, could be framed, against her.

18. According to the petitioner, there is nothing in

the report, filed under Section 173(2) Cr.PC, on the basis of

which, the charges could be framed against her.

19. On the basis of the above facts, Shri Naresh

Kumar Sharma, has prayed that the revision petition may

kindly be allowed and the charges, so framed against the

petitioner, may kindly be set aside, by discharging her from

the offences punishable under Section 201 read with

Section 34 IPC.

20. In this case, the allegations, which have been

levelled, against the petitioner, are that she has disclosed,

in her interrogation, that on 12.5.2022, during the night

time, when her husband, came back to the house, at that

time, his clothes, were blood stained and the drat was also

having the blood stains. Her husband disclosed to her that

a quarrel had taken place with Dhikka and he has chopped

both of his arms with drat. She has also disclosed that he

has removed the clothes and had taken the bath and had

told her that he wanted to destroy those clothes. On the

directions of her husband, she had accompanied him for

some distance, but, thereafter, she got frightened and

returned back.

21. According to the further allegations, in the

report, under Section 173(2) Cr.PC, the petitioner does not

know, where, her husband has concealed the clothes and

drat. However, had the petitioner informed this fact to the

family members of the deceased, his life would have been

saved.

22. On the basis of the above fact, Sections 201

and 34 were added against the petitioner.

23. The charges can be framed on the basis of

suspicion, but, even for suspicion, there should be some

material. The alleged disclosure of the petitioner has not

been documented nor any thing has been discovered. At

the time of framing of charge dissection of evidence should

be avoided. At this stage, only prima facie case is to be

seen.

24. The petitioner is wife of main accused Jagdish

Chand. So far as the alleged disclosure of Jagdish Chand

to the petitioner, qua the incident, as to how, he had

inflicted the injuries to the deceased, is concerned, the said

revelation does not fall within the definition of evidence, as,

no disclosure statement of the applicant has been

recorded, nor she has been produced, before the Court, for

getting her statement recorded, under Section 164 Cr.PC.

25. Even otherwise, if the said statement is

considered, as evidence, then too, the same is not

admissible, in evidence, in view of the bar contained under

Section 122 of the Indian Evidence Act.

26. The petitioner has been chargesheeted, in this

case, under Section 201 read with Section 34 IPC. The

essential ingredients for the offence punishable, under

Section 201 IPC are, as under:

i) That an offence has been committed;

ii) That the accused knew or had reason to believe the commission of such an offence;

iii) That with such knowledge or belief he;

a) caused any evidence of the commission of that offence to disappear, or

iv)

gave any information relating to that offence which he then knew or believed to be false. That he did so as aforesaid with the intention of

screening the offender from legal punishment.

v) If the charge be of an aggravated from, it must be further proved that the offence in respect of which the accused did as in (3) and 4) supra,

was punishable with death or imprisonment for life or imprisonment extending of ten years.

27. Perusal of the record submitted by the

Investigating Officer, shows that none of the witnesses, in

the statement, under Section 161 Cr.P.C., has deposed

against the petitioner.

28. Even otherwise, if the revelation, allegedly

made, by the petitioner, in the investigation, to the Police,

if taken, as it is, then, those revelations/allegations are too

short to frame the charges, against the petitioner.

29. Moreover, the said revelations are hit by Section

25 of the Indian Evidence Act, as admittedly, the petitioner

was, in custody of the Police, although, she has been

arrested only on 15.5.2022, at about 8.30 p.m.

30. Provisions of Section of 25 of the Indian

Evidence Act, are reproduced as under:

"25. Confession to police officer not to be proved. -- No confession made to a police officer, shall be proved as against a person accused of any offence."

The Hon'ble Apex Court, in Vikram Singh and

31.

others versus State of Punjab, (2010) 3 Supreme Court

Cases, 56, has held, as under:

"39......A bare reading of the provision would

reveal that a "person must be accused of any offence" and that he must be "in the custody

of a police officer" and it is not essential that such an accused must be under formal arrest.

40. In State of Uttar Pradesh vs. Deoman Upadhyaya AIR 1960 SC 1125 this is what a Constitution Bench had to say while examining the scope and applicability of Section 27. The Bench relying on the observations made by the Privy Council in Narayan Swami vs. Emperor( AIR 1939 PC

47) observed as under:

"7. Section 27 of the Indian Evidence Act is one of a group of sections relating

to the relevancy of certain forms of admissions made by persons accused of offences. Sections 24 to 30 of the Act

deal with admissibility of confessions

i.e. of statements made by a person stating or suggesting that he has committed a crime. By Section 24, in a

criminal proceeding against a person, a confession made by him is inadmissible if it appears to the court to have been caused by inducement, threat or promise having reference to the charge

and proceeding from a person in authority. By Section 25, there is an absolute ban against proof at the 3 trial of a person accused of an offence, of a

confession made to a police officer. The

ban which is partial under Section 24 and complete under Section 25 applies equally whether or not the person against whom evidence is sought to be

led in a criminal trial was at the time of making the confession in custody. For the ban to be effective the person need

not have been accused of an offence when he made the confession. The

expression, "accused person" in Section 24 and the expression "a person accused of any offence" have the same

connotation, and describe the person against whom evidence is sought to be led in a criminal proceeding. As observed in Pakala Narayan Swami v. King Emperor by the Judicial Committee of the Privy Council:

"Section 25 covers a confession made to a police officer before any investigation has begun or otherwise not in the course of an investigation".

The adjectival clause 'accused of any offence' is therefore descriptive of the

person against whom a confessional statement made by him is declared not provable, and does not predicate a

condition of that person at the time of

making the statement for the applicability of the ban. Section 26 of the Indian Evidence Act by its first

paragraph provides:

'26. Confession by accused while in custody of police not to be proved against him. - No confession made by

any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such

person.'

By this section, a confession made by a person who is in custody is declared not provable unless it is made in the

immediate presence of a Magistrate. Whereas Section 25 prohibits proof of a confession made by a person to a police

officer whether or not at the time of making the confession, he was in

custody,Section 26 prohibits proof of a confession by a person in custody made to any person unless the confession is

made in the immediate presence of a Magistrate. Section 27 which is in the form of a proviso states:

"27. How much of information received from accused may be provided.- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as

relates distinctly to the fact thereby discovered, may be proved.'

The expression, 'accused of any

offence' in Section 27, as in Section 25, is also descriptive of the person concerned i.e. against a person who is

accused of an offence, Section 27 renders provable certain statements made by him while he was in the custody of a police officer. Section 27 is founded on the principle that even

though the evidence relating to confessional or other statements made by a person, whilst he is in the custody of a police officer, is tainted and

therefore inadmissible, if the truth of

the information given by him is assured by the discovery of a fact, it may be presumed to be untainted and is therefore declared provable insofar as it

distinctly relates to the fact thereby discovered. Even though Section 27 is in the form of a proviso to Section 26,

the two sections do not necessarily deal with evidence of the same character.

The ban imposed by Section 26 is against the proof of confessional statements. Section 27 is concerned

with the proof of information whether it amounts to a confession or not, which leads to discovery of facts. By Section 27, even if a fact is deposed to as discovered in consequence of information received, only that much of the information is admissible as distinctly relates to the fact discovered. By Section 26, a confession made in the presence of a Magistrate is made provable in its entirety."

41. Mr. Sharan has, however, referred us to Section 46(1) of the Code of Criminal Procedure to argue that till the appellants

.

had been arrested in accordance with the

aforesaid provision they could not be said to be in police custody. We see that Section 46 deals with `Arrest how made'. We are of the

opinion that word "arrest" used in Section 46 relates to a formal arrest whereas Section 27 of the Evidence Act talks about custody of a person accused of an offence. In the present case the appellants were undoubtedly put

under formal arrest on the 15 th February 2005 whereas the recoveries had been made prior to that date but admittedly, also, they were in police custody and accused in an

offence at the time of their apprehension on

the 14th February 2005.

42. Moreover, in the light of the judgment of the Constitution Bench in Deoman

Upadhyaya case and the observation that the words in Section 27 "accused of any offence" are descriptive of the person making the statement, the submission that this

Section would be operable only after formal arrest under Section 46(1) of the Code,

cannot be accepted. This argument does not merit any further discussion."

32. The Allahabad High Court, in a case, reported

as AIR 1948 Allahabad 7 titled as Mt.Maharani versus

Emperor, has held, as under:

"17. The learned counsel for the appellant has referred to a number of rulings which lay down that the word "custody" in S. 36 or

27, Evidence Act, does not mean formal custody but includes such state of affairs in which the accused can be said to have come

into the hands of a police officer or can be

said to have been under some sort of surveillance or restriction. We agree with this view. These cases are, AIR 1932, Lah. 609

AIR 1938 Lah.620 AIR 1940 Lah. 129 AIR 1933 Oudh 192 77 I.C. 429 and A.I.R. 1938 Pat. 308."

33. Whatsoever, has been revealed by the

petitioner, it has been disclosed by her, when, she was

allegedly interrogated by the police. As such, the said facts

are not admissible in evidence.