1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT Mahendra & Anr. Vs. State of Rajasthan D.B.CRIMINAL APPEAL NO.160/1983 Date of Judgment : 12th Feb. 2009 PRESENT HON'BLE SHRI N.P.GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. Mr.JS CHOUDHARY ] Mr.MK GARG ] for appellants Mr.JPS Choudhary, PP for State BY THE COURT (PER HON'BLE CHAUDHARI,J.) This appeal has been filed against the judgment dated 25.3.1983 passed by Addl. District Judge, Nohar by which he convicted accused appellants under section 302/34 IPC and sentenced each accused to undergo life imprisonment and fine of Rs.2000/-, in default of payment of fine to further undergo six months' simple imprisonment and under section 201/34 IPC, sentenced to undergo rigorous imprisonment for one year and fine of Rs.500/-, in default of payment of fine to further undergo three months' simple imprisonment. Brief facts of the prosecution case are, that PW.4 2 Rajmal lodged FIR Ex.P/2 on 9.11.1981 at 9.45 a.m. and stated, that his sister-in-law (Bhabhi) Mooli, nephew Nihal Singh were living in Dhani in their field. Guddi daughter of Banwari Lal was also living with them. While he was sleeping, at about 2.00 a.m. in the night, Guddi came to his residence from Dhani and narrated, that in the night at 8-9 p.m., accused Rajendra and Mahendra came to Dhani, Nihal Singh enquired, who are they, then they disclosed their names as Rajendra and Mahendra, thereafter, they had talked for some time with Nihal Singh. Accused Rajendra Singh told to Nihal Singh to go with them on his tube well to listen tape, then Nihal Singh went with them to the tube well of Rajendra. In the night, Guddi's maternal grand-mother (Nani) Mooli asked, that Nihal Singh has not returned, then accused Mahendra came near Dhani and told, that he along with Rajendra has murdered Nihal Singh and his dead body has been thrown in a canal near 12 Burji. On this information, he (Rajmal) along with Sher Singh went to the Dhani of Mooli, where she was weeping, and she told, that accused Rajendra and Mahendra took away Nihal Singh with them and before some time, on her asking, accused Mahendra and Rajendra came near her Dhani and Mahendra told, that he along with Rajendra has murdered Nihal Singh and has thrown his body in canal. Thereafter, he (Rajmal) along with Sher Singh went to the canal early in the morning and saw marks of dragging. Rajendra and Mahendra have murdered Nihal Singhj with a motive to take ornaments of wife of Nihal Singh. On this report, case was registered under sections 302, 201 read with 3 section 34 IPC and after completion of investigation, challan was filed against these accused-persons under sections 302, 201 IPC in the Court of Munsif and Judicial Magistrate, Bhadra. Case was committed to the Court of Additional Sessions Judge, Bhadra and charges under section 302, in the alternate 302/34 IPC, and 201 and in the alternate 201/34 IPC were framed against accused-persons, to which they denied. Prosecution examined 11 witnesses, and after recording statements under section 313 Cr.P.C. and hearing arguments, accused-appellants were convicted and sentenced as aforesaid. As per report dated 17.2.1997 of Gram Panchayat, Jhasal, accused Rajendra s/o Biharilal died on 4.4.1990. Thus, appeal abates to the extent of accused Rajendra. Learned counsel for accused-appellant Mahendra argued, that prosecution has failed to prove that accused was last seen with deceased, any extra judicial confession was made by the accused, any recovery of blood stained clothes was made from accused, or at his instance, and any foot mark of the accused was found near the scene of occurrence, even then the trial court has committed error in convicting accused appellant, hence, his appeal may be accepted, and he 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 4 case against the accused-appellant beyond reasonable doubt, hence, appeal of the accused-appellant may be dismissed. Most of the prosecution witnesses have stated in their statements, that Nihal singh died. PW.9 SHO Dungarmal has prepared memo of dead body Ex.P/6 and Panchnama of dead body Ex.P/7, which reveals that Nihal Singh died on account of injuries. PW.2 Dr. Naval Kishore has stated, that he conducted post mortem of body of Nihal Singh, and found that Nihal Singh died on account of asphyxia due to strangulation, and post mortem report Ex.P/1 is signed by him. Thus, by oral as well as documentary evidence, it is proved beyond doubt, that Nihal Singh died on account of asphyxia due to strangulation. Now the question arises, whether accused, in furtherance of the common intention with other accused Rajendra caused death of deceased Nihal Singh. This case rests on circumstantial evidence. As far last scene evidence is concerned, PW.3 Guddi has stated in her statement that after sunset, she took meal and slept along with her maternal grand-mother (Nani) Mooli and daughter of deceased Nihal Singh in one “Kotha” and in another “Kotha”, there were Nihal Singh and his son. Accused Mahendra and Rajendra came there and sat with Nihal Singh. Later on, both of them asked her maternal grand-mother to go to their Dhani to listen radio, then Nihal Singh went with them, thereafter, she slept, and in the night, her maternal 5 grand-mother awoke her, and told her that Rajendra and Mahendra have murdered Nihal Singh, so asked her to intimate this fact to Rajmal. She went to the house of Rajmal and awoke Rajmal and Sher Singh, and narrated this fact to them. In cross-examination, she has admitted, that after the sunset and taking meal, she along with her maternal grand- mother slept till she was awakened by her grand-mother, and she also admits that when they slept, the door was bolted from inside. She has further admitted that when they slept, her maternal grand-mother and maternal uncle (Mama) Nihal Singh also slept. She further admitted that she was awakened by her maternal grand-mother in early morning. From her statement, it becomes clear that she has not seen accused- persons along with deceased at her Dhani in the night, but she has stated whatever was told to her by her maternal grand-mother Mooli. PW.4 Rajmal has stated that he was sleeping in his house, and in early morning Guddi came and told him that Rajendra and Mahendra have murdered Nihal Singh and have thrown his body in canal. Then he along with Sher Singh went to the Dhani of Mooli, where Mooli told them that Rajendra and Mahendra have murdered Nihal Singh and have thrown his body in the canal. Then he along with Sher Singh went to the canal, and after seeing foot steps, he lodged report Ex.P/2. In report Ex.P/2 also, it has not been stated that Mooli has seen accused Mahendra and Rajendra with deceased Nihal Singh in the night. PW.1 Mooli has stated in her examination-in-chief, that both the accused came to her house and called Nihal Singh, who asked them to come 6 inside “Kotha”, they went in the “Kotha” of Nihal Singh and after spending some time, accused-persons told her, when she was in another “Kotha”, that they will return back after listening tape at the tube well of accused Rajendra. Nihal Singh asked her to take care of his child, and then Nihal Singh left with accused-persons. In cross-examination, she admitted that she prepared meal of herself, Nihal Singh and Guddi before sunset, and after taking meal at about 8.00 p.m., they went to bed, as it was severe cold. She admitted that there were doors on both the “Kothas”. She denied that she bolted her “Kotha” from inside, and affirmed that she was sitting on the door of her “Kotha”. Later on, she resiled from her statement and admitted, that she was not on the door of her “Kotha”, but her bitch was on the door of her “Kotha”. She further improved her statement and deposed, that she came near accused-persons and at that time, accused- persons had covered their bodies by blankets. She further admitted, that she was in her “Kotha”, so she cannot say, whether her bitch barked or not. Mooli has nowhere stated in her examination-in- chief, that she had any dialogue with accused-persons when they came to meet Nihal Singh, whereas she has deposed in her cross-examination, that she had a dialogue with accused- persons. This fact has neither been stated in FIR, nor corroborated by the statement of PW.3 Guddi. In such circumstances, it cannot be believed, that when the accused- persons came to meet Nihal Singh, Mooli had any dialogue 7 with accused-persons. She has stated in her examination-in- chief, that she saw the accused-persons going with Nihal Singh. Admittedly when she was in the “Kotha”, which had doors, it cannot be believed that in severe cold, she would have come out of “Kotha” and seen accused-persons going with deceased Nihal Singh. It can be inferred from her statement, as well as Guddi's statement, that after the sunset and taking meal, Mooli along with Guddi and one daughter of Nihal Singh slept in one “Kotha”, and Nihal Singh, with his son slept in another “Kotha”, and there was no occasion for her to see the accused-persons leaving her Dhani with Nihal Singh. She cannot say, whether her bitch barked or not. Had accused-persons come there, normally the bitch should have barked and Mooli and Nihal Singh should have awakened. Mooli has also stated, that when accused-persons came there, Guddi was not sleeping. On the contrary, Guddi has stated, that after taking meal she slept, and she getup only when she was awakened by Mooli. Thus, it becomes celar that Mooli has not seen Nihal Singh going with accused-persons. Investigating Officer PW.9 Doongarmal has admitted in his statement, that he has not prepared site plan of Mooli's Dhani and thus, it cannot be presumed that Mooli could have seen from inside “Kotha” to accused-persons going with Nihal Singh, as on account of severe cold, she was sleeping. As far evidence regarding extra judicial confession is concerned, PW.1 Mooli has stated in her statement that at midnight, child of Nihal Singh cried, then she came outside 8 her “Kotha” and saw that Nihal Singh was not in “Kotha”. For a long time, she thought to go to Dhani of Rajendra and she proceeded four steps, then she saw accused-persons coming towards Dhani. She called Nihal Singh, then accused Mahendra told her, that he along with Rajendra has murdered Nihal Singh, and has thrown body of Nihal Singh in canal, then she started weeping, and awoke Guddi, and sent her to intimate Rajmal and Sher Singh. She has further stated, that Rajmal and Sher Singh came from village, and then she narrated them complete events, as stated in the examination- in-chief. Admittedly, she did not say Guddi, that accused Rajendra and Mahendra confessed before her. PW.3 Guddi has also not stated this fact in her statement. PW.4 Rajmal has stated that on the information of Guddi, he along with Sher Singh came to the Dhani of Mooli, and on enquiry, Mooli told, that Rajendra and Mahendra have murdered Nihal Singh and thrown his body in canal. PW.4 Rajmal lodged FIR in which he has mentioned about extra judicial confession of accused-persons, but he has not stated in his examination-in- chief, that accused-persons have confessed about murder of Nihal Singh before Mooli. He has admitted in his cross- examination, that he has lodged FIR according to his own wishes, and not in accordance with information of Guddi or Mooli. This statement makes it clear, that PW.4 Rajmal has lodged FIR as per his own perception, and it seems that according to FIR, PW.1 Mooli has improved her statement, and narrated about extra judicial confession of accused- persons. In normal course, when accused-persons have 9 murdered Nihal Singh, there was no occasion for them to return back in the night to the Dhani of Mooli, and to confess the guilt before her. Had accused persons come there in the midnight, bitch should have barked, but Mooli has nowhere stated that bitch barked at all. 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 it lacks plausibility, and does not inspire confidence in the court, it cannot be acted upon. Statement of Mooli does not inspire confidence on this fact, that accused-persons have made extra judicial confession before her, especially when her conduct is unnatural. According to her, her husband and her son Pratap were not living with her in Dhani, and as per statements of PW.3 Guddi and PW.4 Rajmal both of them were living in village. There was no occasion for Mooli to send information through Guddi to Rajmal about the occurrence, when her husband Ganpat and other son Pratap were living in the same village, and whose houses were nearer to Mooli's Dhani, than house of Ganpat. As per statement of PW.3 Guddi, on receipt of information from Mooli, she did not intimate this fact to Ganpat, is very strange. PW.3 Guddi also admitted in her cross-examination that when she went to the house of Ganpat and Pratap, they were there, but she did not intimate about the occurrence to Ganpat, as he was old. At the time of recording statement of PW.1, she was 50 years 10 old, PW.4 Rajmal is brother of Ganpat, and Rajmal was 45 years old at the time of recording of his statement, in such circumstances, it cannot be presumed that Ganpat was very old. Thus, it creates suspicion, that Mooli sent Guddi to narrate about the murder of Nihal Singh to Rajmal at a large distance, especially when Guddi was less than 10 years at the time of incident, and it was severe cold night. She has not given any explanation for not going herself to intimate her husband, or to Rajmal, or to neighbour Tara Chand and Kanhaiya Lal, who were living nearby. There are many contradictions in her statement and police statement Ex.D/1. According to Mooli, Guddi was sent in midnight, whereas Guddi and Rajmal have stated in their statements, that Guddi reached to Rajmal's house in early morning. If it is believed that Guddi was awakened in early morning to intimate Rajmal, theory of extra judicial confession by accused in midnight goes away. Mooli has made many improvements over police statement in her examination-in-chief to implicate accused-persons, and in such circumstances, looking to her unnatural conduct, it cannot be believed, that accused- persons made extra judicial confession before her. PW.9 Doongarmal has stated, that after recording FIR, he arrested accused-persons, recovered dead body of Nihal Singh and some articles, and then took foot prints, and later on, on the information and at the instance of accused- persons, recovered belongings of deceased and some other items, which were blood stained. PW.5 Aladeen Khan has 11 stated, that he was Tehsildar on 13.11.1981, and on the request of SHO, in his presence, SHO took foot prints of both the accused-persons and also one 'Chappal' and 'Sandal' of accused-persons. PW.9 Doongarmal has stated, that he prepared site plan Ex.P/4 and its description memo Ex.P/4-A, and has further stated, that vide memo Ex.P/9, he took moulds of foot prints of accused Mahendra and Rajendra from three points “A, B & C”. PW.11 Ramniwas has stated, that he kept the moulds in Malkhana, and PW.9 Doongarmal has proved report Ex.P/38 given by Director, Finger Print Bureau, Jaipur. It was mentioned in this report as under: “The chance shoe impression moulds now marked C1, C2, C3, C4, C5, C6, C7 and C8 lifted from the crime scene have been examined for comparison with specimen shoe impression moulds marked S1 and S2 of accused Rajendra and S3 and S4 of accused Mahandra. Chance shoe impression moulds marked C1 to C8 do not possess any pecularity on the basis of which positive identification could be based.” Thus, it becomes clear, that accused-persons cannot be connected with the crime on the basis of foot prints, recovered from the scene of occurrence. PW.9 Doongarmal has stated, that he recovered body of deceased on the information and at the instance of accused-persons, and also recovered deceased’s belongings viz. towel, bed sheet, blanket, watch etc. and these recoveries have further been proved by other witnesses PW.4 12 Rajmal, PW.6 Balbeer, PW.8 Pala Ram. PW.11 Ramniwas has stated that he was Malkhana Incharge and kept all sealed items in Malkhana, and PW.10 Ruda Ram has stated that he deposited these articles in FSL. PW.9 Dungarmal has proved FSL Reports Ex.P/36 and Ex.P/37. By perusal of these reports, it becomes clear, that blood was detected on recovered articles and these articles were sent to Serologist for serological examination, but as per report Ex.P/37, as blood stains on these items were disintegrated, their origin and blood group could not be determined. In such circumstances, it cannot be said that recovered articles were having human blood. In absence of positive report regarding human blood and blood group of deceased, accused-persons cannot be connected with the crime. Prosecution case rests on circumstantial evidence. Circumstances have to be proved beyond reasonable doubt and shown to be closely connected with principle fact sought to be inferred from there, and there should be complete chain of circumstances. In the present case, statement of Mooli does not inspire confidence at all, and only on the basis of her statement, it cannot be presumed, that she has seen accused-persons with the deceased in the night of incident, and after committing murder, accused-persons made the extra judicial confession before her. Recovered foot prints and belongings of deceased also do not link the accused-persons with the crime, and in such circumstances, the learned trial court has committed error in convicting accused-persons of 13 the charges leveled against them. Consequently, the appeal of appellant Mahendra is accepted and allowed. Judgment dated 25.3.1983 passed by ADJ, Nohar, by which he convicted accused Mahendra under section 302/34 and 201/34 IPC is set aside to the extent of his conviction. He is on bail, his bail bonds stand cancelled, and he need not to surrender. [KISHAN SWAROOP CHAUDHARI],J. [N.P.GUPTA],J. m.asif/-