1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT 1. Sukhpal Vs. State of Rajasthan D.B.CRIMINAL APPEAL NO.638/2002 2. Ranjha Vs. State of Rajasthan D.B.CRIMINAL APPEAL NO.542/2002 3. Om Prakash Vs. State of Rajasthan D.B.CRIMINAL APPEAL NO.545/2002 Date of Judgment : 19th Feb. 2009 PRESENT HON'BLE SHRI N.P.GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. Mr. RS GEHLOT ] Mr. HSS KHARLIA ] Mr. BK VYAS ] for appellants Mr.ASHOK UPADHYAY, PP for State REPORTABLE BY THE COURT (PER HON'BLE CHAUDHARI,J.) These appeals have been filed against the judgment dated 14.6.2002 passed by Addl. Sessions Judge (Fast Track), Hanumangarh, by which he convicted all accused persons under section 302/34 IPC and sentenced each accused to undergo life imprisonment and fine of Rs.1000/-, in default of payment of fine to further undergo 2 two months' simple imprisonment and also convicted accused Ranjha under section 379 IPC and sentenced him to undergo one year's simple imprisonment. Brief facts of the prosecution case are, that PW.1 Hetram lodged FIR Ex.P/1 on 19.03.2001 at 11.30 a.m. and stated, that he is Sarpanch of village, and at 7.30 a.m., Binder Singh informed him, that a dead body is lying in siphon near his field. On this information, he along with Ex- Sarpanch Ram Singh and Binder Singh went on spot and found, that a dead body, smeared with blood, was lying. It appears, that some unknown persons have caused murder in night. On this report, case was registered and after completion of investigation, challan was filed against accused- appellants under sections 302, 379 read with section 34 IPC in the Court of ACJM, Hanumangarh. The case was committed to the Court of Sessions Judge, Hanumangarh, which was transferred to Additional Sessions Judge No.1, Hanumangarh. Charges were framed against accused Ranjha under section 302, in the alternate 302/34 and 379 IPC, and against accused Om Prakash and Sukhpal under section 302, in the alternate 302/34 IPC, to which, they denied. Additional Sessions Judge recorded statements of six witnesses, and then the case was transferred to Additional Sessions Judge (Fast Track), Hanumangarh, who recorded statements of another seven witnesses. After recording statements under section 313 Cr.P.C., defence examined one witness and after hearing arguments, accused-appellants were convicted and 3 sentenced as aforesaid. Learned counsel for accused-appellants argued, that prosecution has failed to prove, that accused were last seen with deceased, any extra judicial confession was made by the accused persons, any recovery of blood stained clothes, shirt and watch were made at the instance of accused persons, and any foot marks of the accused were found near the scene of occurrence,motive for committing offence, even then the trial court has committed error in convicting accused appellants, hence, appeals may be accepted, and they may be acquitted of the charges. On the other hand, learned Public Prosecutor argued, that the trial court has given cogent reasons for conviction and the prosecution has proved the case against the accused-appellants beyond reasonable doubt, hence, appeal of the accused-appellants may be dismissed. Most of the prosecution witnesses have stated in their statements, that Satpal died. PW.1 Hetram, PW.2 Ram Singh and PW.3 Bindra Singh saw a dead body in the siphon and PW.12 Pahad Singh has stated, that later on, the dead body was detected to be of Satpal, who was identified by his father Panni Ram. PW.6 Panni Ram has also stated, that his son Satpal was murdered. PW.12 Pahad Singh has prepared memo of dead body Ex.P/3, Panchnama of dead body Ex.P/4, which reveals that Satpal died on account of injuries. PW.11 Dr. Rajendra Gupta has stated, that he conducted post mortem of the dead body of Satpal and found, that Satpal 4 died on account of injuries on his body and he died before 36 to 48 hours of conducting post mortem, which was done on 20.3.2001 at 4.30 p.m. and post mortem report Ex.P/31 is signed by him. Thus, by oral and documentary evidence, it is proved beyond doubt, that Satpal died on account of injuries on his body. Now the question arises, as to whether accused in common intention with other accused-persons, caused death of deceased Satpal. This case rests on circumstantial evidence. As far last seen evidence is concerned, PW.5 Gula, who is mother of deceased Satpal stated, that at about 12.30 in the noon, all accused-persons took Satpal with them to “Akhada”. In the evening, Satpal did not return to home, then she narrated this fact to her husband Panni Ram. She further stated, that after sunset, her son Mela Singh came to house and on enquiry from him, he revealed, that he saw Satpal along with accused-persons in “Akhada”. She further stated, that when she was proceeding towards accused Sukhpal to enquire about Satpal, all the three accused came on bicycles to her residence and on enquiry, they revealed, that Satpal left for 3 Chak Wali Abadi from Akhada, and they have returned back from Akhada. She further stated, that her husband searched Satpal, but after three days, she came to know that Satpal has been murdered. In her cross-examination, she stated, that she went at a distance of half quila from residence, then accused-persons, while coming on bicycle, met her. She stated, that she revealed in her police statement Ex.D/1, that 5 accused-persons took Satpal with them at 12.30 in the noon, but this fact does not find place in statement Ex.D/1. PW.4 Mela Singh, who is brother of deceased Satpal has stated, that he saw accused-persons first time in Akhada, and after that, he has not seen accused-persons. He further admitted, that he along with Balbir went on bicycle to Akhada and they left village Munda at 12.00 noon. He further revealed that, he went to work for half day, but it is not clear, that whether he went to work in first half or second half. He further admitted, that he returned to home at 8.00 p.m. from Akhada and slept in the house and he was not awakened in the night by any one. His mother also did not awake him to enquire about Satpal. If statements of these witnesses are believed, it would become clear that Satpal left the house at 12.30 in the noon with accused-persons for Akhada and Mela Singh saw accused-persons along with Satpal in the Akhada and Mela Singh returned at 8.00 p.m. Accused persons also returned back and met Gula. After sunset, when it was some dark and Gula enquired from accused-persons about Satpal, they revealed, that Satpal has gone towards 3 Chak Wali Abadi. Thus, it becomes clear that accused-persons, along with Satpal, left Akhada before Mela Singh and accused-persons returned to village Munda, whereas according to accused- persons' version to Gula, Satpal left for 3 Chak Wali Abadi. PW.11 Dr. Rajendra Gupta has admitted, that Satpal's stomach was full of food, which shows that he must have taken meal after leaving Akhada, and later on, he must have been murdered in the night. When accused-persons returned 6 back, leaving Satpal alive, evidence regarding last seen of accused-persons, along with deceased, does not stand at all. According to Dr. Rajendra Gupta, murder was caused within 36-48 hours of post mortem, and as per report Ex.P/31, post mortem was conducted on 20.3.2001 at 4.30 p.m., meaning thereby, murder must have been caused between 4.30 p.m. of 18.3.2001 to 4.30 a.m. of 19.3.2001. When there was food in the stomach of deceased Satpal, it may be presumed, that he must have taken meal in the night, after leaving Akhada and after that, he must have been murdered by some persons. When accused-persons had returned back, after sunset and met PW.5 Gula, there arises no question of presuming that accused-persons were last seen with the deceased. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In such circumstances, the accused-persons could not have been convicted by the trial court on the circumstantial evidence of last seen with the deceased. As far evidence regarding extra judicial confession is concerned, PW.8 Mithu Ram has stated that Panni Ram, 7 who is father of deceased is his elder brother. He lives in Aboria Chak, whereas Panni Ram lives in Munda. On 20.3.2001, accused-persons came to his house at 6.00 - 6.30 p.m. and confessed, that they have committed mistake and asked him to get the matter settled. On enquiry, they further revealed, that they have murdered Satpal, and further told him to get the matter compromised, for which they are ready to pay money. He told, that it is hot talk, so he cannot do anything at present, then he went inside the house and accused-persons left that place. In cross-examination, he admitted, that 1-½ to 2 hours are taken in journey from village Munda to Aboria Chak and at 2 places, bus has to be changed. He has further deposed, that the accused-persons came before him on foot and he cannot say, whether they came by any conveyance or not. He met accused-persons in street, outside his house. He had a talk with accused-persons only for 2 to 4 minutes. He further admitted, that before this incident, accused-persons never met him. He has denied, that accused-persons have not confessed before him. He further deposed, that his statement was recorded after 2-3 days of this incident. Later on, he improved his statement and stated, that he came to village Munda on 21.3.2001. Perusal of the record reveals, that his statement was recorded by police, but there is overwriting on the date of recording statement and it is not clear, when his statement was recorded, but it appears, that his statement was recorded on 22.3.2001. No reliance can be placed on this witness, because he never met accused-persons before confessional statement 8 and there was no occasion for accused-persons to go to this witness, as he was not relative of accused-persons and he was living in a distant village Aboria Chak, which is 80-90 kms. away from their village. According to Mithu Ram, accused-persons made confessional statement on 20.3.2001 at 6.30 p.m. and he has not stated, that accused-persons came by any vehicle. According to PW.12 Pahad Singh, he arrested accused-persons vide arrest memos Ex.P/38, Ex.P/39 and Ex.P/40 on 21.3.2001 at 5.30 a.m. Had accused-persons been at Mithu Ram's residence on 20.3.2001 at 6.30 p.m., they could not have reached to village Munda on foot in the early morning of 21.3.2001. Had accused-persons confessed before this witness on 20.3.2001, he would have immediately intimated this fact to his brother Panni Ram or would have come to village Munda immediately and would have given statement to police. No doubt, he has stated, in his cross-examination, that he reached village Munda on 21.3.2001, but he has also admitted, that his statement was recorded by police after 2-3 days of this incident, meaning thereby, his statement must have been recorded on 22.3.2001 or 23.3.2001. Had he reached village Munda on 21.3.2001, he should have gone to police station for narrating confessional statement of accused-persons before him. Normally extra judicial confession is made before a person, in whom, he reposes confidence. The evidence of extra-judicial confession, in the very nature of things, is a weak piece of evidence. If the evidence adduced in respect of 9 it lacks plausibility, and does not inspire confidence in the court, it cannot be acted upon. Statement of PW.8 Mithu Ram does not inspire confidence at all on this fact that accused- persons have made extra judicial confession before him specially when he is unknown to accused-persons and his conduct is unnatural. Learned counsel for the appellants have placed reliance on judgment of Hon'ble Supreme Court in Surinder Kumar vs. State of Punjab, 1999 CRI.L.J. 267 (SC), in which it was held that extra judicial confession made jointly by all accused, if suspicious, improbable and uncorroborated, accused-persons cannot be convicted. In such circumstances and looking to the fact that Mithu Ram is unknown to the accused-persons, it cannot be presumed that accused-persons made joint confessional statement before him. As far evidence regarding recovery of blood stained articles is concerned, PW.12 Pahad Singh has stated, that he arrested accused-persons and on their information and at their instance, recovered accused-persons' blood stained clothes, watch of the deceased and knife of accused Sukhpal. Knife has been recovered vide recovery memo Ex.P/11 in the presence of Balbir Singh, Mela Singh and Sukhpal. PW.4 Mela Singh has stated, that knife was recovered from the residence of Sukhpal and shirt of Sukhpal was recovered by police vide recovery memo Ex.P/13 and both these memos have been signed by him. He has admitted, in his cross-examination, that knife was recovered 10 at 12.00 in the noon on the next day of incident. PW.12 Pahad Singh has stated, that on the information and at the instance of accused Sukhpal, he recovered knife and blood stained shirt vide Ex.P/11, recovery memo of knife, which has been prepared on 22.3.2001, while Ex.P/13 recovery memo of shirt has been prepared on 23.3.2001. When both the incriminating articles are to be recovered from the same room of accused, they should have been recovered on one day i.e. 22.3.2001 and recovery of two articles, on two different dates from same “Kotha”, makes recovery suspicious. In site plan Ex.P/12, an almira has been shown from which, knife has been recovered, whereas in site plan Ex.P/14, almira has not been shown, but cot has been shown. Other two witnesses Balbir Singh and Sukhpal Ram, in whose presence, knife and shirt were recovered, from the house of Sukhpal, have not been examined by the prosecution. On the contrary, PW.3 Bindra Singh, who first of all informed about dead body in siphon to Sarpanch Hetram, has stated in his cross- examination, that police recovered knife, which was lying near the dead body and further stated, that police also took away watch from the wrist of dead body. No doubt, this witness has been declared hostile, but recovery of knife and blood stained shirt is also suspicious, and in the absence of other corroboration, this recovery cannot be made basis for conviction of accused-persons, specially when PW.4 Mela Singh, who is witness to the recovery memo, has stated, that knife was recovered on the next day of incident, meaning thereby, the knife must have been recovered either on 19th or 11 20th as the incident is of midnight of 18th and 19th March. According to memo Ex.P/11, knife was in the book, which was in the almira, and this knife was blood stained. If the knife was recovered from the book, papers of book must have been stained with blood, but none of the prosecution witnesses has stated, that papers of the book were also stained with blood. Recovery memo Ex.P/11 does not bear time of recovery, whereas, other memos bear time of recovery. In such circumstances, this recovery becomes suspicious, specially when after recovery and sealing, it has not been assigned any mark, whereas in FSL Report Ex.P/52, packet containing knife had been marked as 'F'. In the same way, shirt of accused Sukhpal has been recovered vide Ex.P/13 and blood stained shirt of accused Om Prakash has been recovered vide Ex.P/15, but this recovery memo also does not contain the fact that they have been assigned any mark on the packet, whereas in FSL Report Ex.P/52, packet containing shirt has been marked as 'S' and 'T'. When and how these marks have been assigned to recovered shirt, is not clear and thus, fatal for prosecution to link accused-persons with the crime. As far recovery of watch is concerned, this watch has been recovered vide recovery memo Ex.P/17 in the presence of Mela Singh and Balbir on 23.3.2001 at 1.30 p.m. PW.4 Mela Singh and PW.12 Pahad Singh have stated, that a watch was recovered from the house of accused Ranjha, which is said to be blood stained as per recovery memo Ex.P/17, but Mela Singh does not say, that watch was blood 12 stained. In cross-examination, he has stated, that he cannot say about make and mark of watch. On the contrary, PW.3, Binder Singh has stated, that watch was recovered from wrist of dead body. Recovered watch has not been assigned any mark in recovery memo Ex.P/17, whereas as per FSL Report, Ex.P/52, watch was found in packet 'U'. As per FSL Report, human blood was found on recovered knife, watch and shirt, but blood group 'A' was found only on recovered knife and blood smeared soil and group of blood on other items could not be detected. None of the witnesses has stated, in statement, that deceased was wearing watch at the time of his murder and this watch has not been got identified in any identification parade by any of the witnesses. In such circumstances, accused-persons cannot be connected with the crime on account of recovery of so called blood stained knife, watch and shirts. It cannot be denied, that after recovery of aforesaid articles, seals have been broken and they have been assigned different marks as per wishes of investigating officer. This observation gets strength from this fact, that lathi recovered from spot was marked as article 'D', whereas in the Court, PW.12 Pahad Singh has admitted, that lathi was found in packet 'A'. Thus, recovery of blood stained articles on the information and at the instance of the accused-persons cannot be believed and accused-persons cannot be connected with the crime. Learned counsel for the appellants placed reliance on judgment of this Court in Satpal & Ors. Vs. State of 13 Rajasthan, 1996 Cr.L.R. (Raj.) 228, in which it was held, that where recovery memo does not contain marking of samples and no oral testimony is given regarding marking of samples and if FSL Report contains particular markings to seizure of samples, it can be presumed, that FSL Report does not relate to samples seized from accused and the accused is entitled to benefit of doubt. In the present case, recovery memo does not contain markings on any packet, whereas FSL Report contains particular marking, which too is not supported by oral evidence and in the Court, different marking is found on some articles. It cannot be believed that FSL Report has been given on the articles seized from or at the instance of accused-persons and thus, accused-persons cannot be connected with the crime on the basis of FSL Report. As far evidence regarding foot prints is concerned, PW.12 Pahad Singh has stated, in his statement, that he inspected site and prepared site plan Ex.P/2 and descriptive site plan Ex.P/2-A, which bears his signature. He further stated, that he found two foot prints at three different places, which were marked by him as M1 to M6 in site plan Ex.P/2. He further stated, that he lifted foot prints from spot and sealed them, and prepared memo Ex.P/10. PW.1 Hetram, who is informant, has simply stated, in his examination in chief, that police prepared site plan Ex.P/2. He has not stated, in his examination in chief, that any foot prints were found on the spot. In cross-examination, he admitted, that there were some foot prints inside the canal, but no foot prints were 14 found on other places. He put his signature on site plan Ex.P/2. PW.2 Ram Singh has stated, that police prepared site plan Ex.P/2 and further stated, that police prepared moulds of foot prints, found on spot and prepared memo Ex.P/10, which bears his signature. In cross-examination, he denied the suggestion, that there were neither any foot print on the spot nor moulds were prepared by police. PW.3 Bindra Singh has stated, that police prepared site plan Ex.P/2, which bears his signature. He was declared hostile and stated, that police neither prepared Ex.P/10 in his presence nor took any foot print from the spot. PW.7 Gurmel Singh has stated, that he was in-charge of Malkhana and delivered six packets to Sant Lal for depositing them in FSL. PW.10 Santa Lal has stated, that after taking sealed packets from Gurmel Singh, he deposited the sealed packets of foot prints in FSL and obtained receipt Ex.P/28. Report of Director, Finger Print Bureau Ex.P/59 reveals, that foot print marks M-1 and M-3 belong to accused Sukhpal, whereas foot print M-2 belongs to accused Om Prakash, foot print M-5 belongs to Ranjha and foot prints M-4 and M-6 are unfit for comparison. This report Ex.P/59 has been dispatched by Director, Finger Print Bureau on 31.1.2002, which has been filed in Court on 6.2.2002, but it has not been tendered in evidence, even then, it has been marked as Ex.P/59 on 6.3.2002, whereas order-sheet dated 6.3.2002 does not reveal that finger print report has been admitted by the accused-persons, or it has been marked as Ex.P/59. No doubt, this report is admissible in evidence, but until and unless the report is tendered in evidence, it cannot 15 be looked into. If this report cannot be considered, accused- persons cannot be connected with alleged foot prints on the spot. For the sake of arguments, even if report Ex.P/59 is considered, according to this report, foot prints M-1 and M- 3 are in opposite direction in site plan Ex.P/2, which have been shown of accused Sukhpal, out of which, foot print M-1 is in canal, whereas foot print M-3 is in 'Sem Nala', foot print M-2 is said to be of accused Om Prakash, which is in canal, whereas, foot print M-5, which is alleged to be of accused Ranjha is in 'Sem Nala'. PW.1 Hetram is a witness to site plan Ex.P/2, but he has not stated, in his examination in chief, that any foot prints were found on the spot. In cross-examination also, he clearly admitted that foot prints were only in canal and there was no foot prints outside canal, meaning thereby, only foot prints M-1 and M-2 could have been there, but other foot prints M-3 to M-6, which are in 'Sem Nala', were not available on the spot. PW.2 Ram Singh has certainly supported the prosecution story and stated, that foot prints were taken from the spot and moulds were prepared, but PW.3 Bindra Singh, who is also signatory of site plan Ex.P/2 and memo foot print moulds Ex.P/10, has stated, that neither foot prints were taken by police from the spot nor memo Ex.P/10 was prepared in his presence. Thus, it becomes doubtful, that any foot prints were lifted from the spot. PW.12 Pahad Singh has also stated, that he prepared descriptive site plan Ex.P/2-A, but it does not bear signature 16 of any Motbir. Last line of the site plan makes it clear, that on spot, there was hard surface, but slight soil of canal was there. Memo Ex.P/10 further reveals, that foot prints M-1 and M-2 were at a distance of 20 ft., whereas foot prints M-3 and M-4 were at a distance of 100 ft. and foot prints M-5 and M-6 were at a distance of 350 ft. from the dead body. P.12 Pahad Singh admitted, in his cross-examination, that only by approximation, he stated distance of foot marks M-1 and M-2 to be of 15-20 ft. from the dead body, but he does not remember exact distance. Perusal of site plan Ex.P/2 reveals, that distance of foot prints M-1 and M-2, and M-5 and M-6 is apparently equal and in such circumstances, foot prints M-1 and M-2 should be at a distance of near about 300-350 ft. So called foot prints were not found near the dead body, but were found at a distance of 100 to