Chowdhry, J.C. -
(1.) Haria and Kirpa were tried by the learned Additional Sessions Judge of Mahasu and Sirmur for having committed criminal trespass into the house of an old man aged 77, named Panu, in village Dilli, tehsil Theog, on the night between 4th and 5th of May 1948, murdered him and committed robbery of his ornaments and household effects. They were acquitted of the charge of murder but convicted of the offences in respect of the other two charges under Section 394 and the second part of Section 451, Penal Code. Each of them has been sentenced to transportation for life and a fine of Rs. 300, or further two years' rigorous imprisonment in default of payment of fine, under the former section, and to three years, rigorous imprisonment and a fine of Rs. 200, or one year's further rigorous imprisonment in default of payment of fine, under the latter, Kirpa and Anr. vs. The State (14.07.1952 - HPHC) Page 1 of 10 the sentences running concurrently. Both have appealed to this Court.
(2.) The case presents certain special features the adverse bearing of some of which on the result of the case will be considered at their proper places. The offences are alleged to have been committed in May 1948, the appellants were arrested in September 1948, inquiry against them commenced on 20-12-1948 and they were committed to sessions on 27-7-1949 and eventually convicted as aforesaid on 26-10-1951 The protracted sessions trial was due to the fact that Kanwar Shiv Singh had all but completed the trial when he met with a fatal accident in August 1950, and therefore the Additional Sessions Judge, Sri Ramji Das, who convicted the appellants had to begin the trial de novo from November 1950. Anyhow, the total period from arrest to conviction was over three years.
(3.) The investigation of the case had an equally chequered career. Gulab Singh (P. W. 46), officer in-charge of the police station at Ghorna within which Dilli lay, received the first information report at 9 A. M. on 5-5-1948 and reached Dilli, a distance of only 2 1/2 miles, at about 10 A. M. the same day, with a large posse of constables and a doctor. He drew up the inquest report Ex. P. V. Section 174, Criminal Procedure Code, requires that the investigation and the drawing up of the report should be done in the presence of two or more respectable inhabitants of the neighbourhood, and that the investigation and the report must be about the apparent cause of death, describing such wounds, fractures, bruises and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted. None of these facts appear in the report although it purports to be drawn up in the prescribed form containing all the necessary columns. It may be mentioned here that the post-mortem, which was performed the same day at 5 p. M., revealed two injuries which were the cause of death and which could not but have been noticed even on a cursory view. In fact, Gulab Singh admits that he saw the two prominent marks of injury. The injuries were two incised wounds on the left side of the face fracturing the upper and the lower jaw completely. The so-called report was therefore a mere travesty of inquest. The officer had the temerity to admit that he made no entries against all the columns of Ex. P. V. although he knew that it was wrong on his part not do so and that it was necessary to make the entries. He professes to have stayed at the scone of occurrence for 2 or 2 1/2 hours, but the only other thing which he appears to have done was to ask the village patwari to prepare the site plan Ex. P. Z. He did not take the trouble of even supervising the preparation of the plan. In point of fact he admits that ho recorded no statements, made no investigation and prepared no case diary, but handed over charge of the investigation the following clay to S. I. Sher Singh (P. W. 45). Panu is said to have been murdered in the third and uppermost storey of his house, and boxes and almirahs from which property was stolen are alleged to have been broken open in an adjoining room. Gulab Singh stated that he did not go into every room of Panu's house and did not see any broken locks. The deceased's near relations who were the first to enter his house on the morning Kirpa and Anr. vs. The State (14.07.1952 - HPHC) Page 2 of 10 following the occurrence, and who profess to have seen at that very time the broken box and almirahs in the adjoining room and to possess knowledge of the things stolen were present there. They were the deceased's niece Ledri (P. W. 12), his daughter Tanglu (not produced), the latter's husband Dhangtu (P. W. 16) and the deceased's heir and nephew Mangni (p. W. 3). Gulab Singh did not take the trouble of asking any of them to give him a list of the stolen property, nor did any of the said relations themselves offer to produce one. It may be stated here that no list of stolen property was given in the first information report although Karmu (P. W. 1), the son of the aforesaid Mangni (P. W. 3), at whoso instance Ratnu lambardar (P. W. 26) lodged the report, had left the scene of occurrence after meeting the aforesaid first arrivals. Gulab Singh professes to have closed and chained the outer door of Panu's house, to have locked the door and sown a cloth over the lock, and to have kept the key of the lock and handed it over the following day to S. I. Sher Singh (P. W. 45). Incidentally the learned Sessions Judge is wrong in saying that Gulab Singh left the key with Ratnu lambardar. It was only on 7-5-1948 after preparation by Khushi Ram (P. W. 4) of the lists Exs. D-1 to D-5 of the property left in the house of the deceased that Ratnu locked the door and kept the key with himself. Gulab Singh also professes to have posted a sentry outside the door. S. I. Sher Singh, however, states that when he reached the house of the deceased on 6-5-1943 ho found the door chained from outside but without any lock, and he does not speak of any key having been given to him by Gulab Singh. He did not also find any police officer or Government servant posted there.;