IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. CRIMINAL APPEAL No.1598/2003 (Santosh @ Surendra V/s. State of Rajasthan) D.B. CRIMINAL APPEAL No.182/2004 (State of Rajasthan V/s. Santosh @ Surendra & Ors.) Date of Judgment :: 25.01.2008 Reportable HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR.JUSTICE R.S. CHAUHAN Mr. Reashm Bhargava for the appellant. Mr. Ashwini Sharma, Public Prosecutor for the State. (Per Hon'ble R.S. Chauhan, J.) The discovery of the dead body of Ashok in a culvert (Nala), the alleged illicit relationship between the appellant-Santosh and the co-accused-Geeta, the wife of the deceased, the feeble evidence of last seen, the conviction of Santosh and the acquittal of co-accused Govind and Smt. Geeta have compelled the accused appellant, Santosh, and the State to file two separate appeals before this Court. Since, both the appeals challenge the judgment dated 18th October, 2003, they are being decided by this common judgment. Vide judgment dated 18th October, 2003, the learned trial Court has convicted Santosh of offence under Section 302 of Indian Penal Code (“IPC”, for short) and has sentenced him to life imprisonment and also imposed a fine of Rs.2,000/- and in default thereof to further undergo six months simple imprisonment. However, the learned trial Court has acquitted the appellant Santosh of offence under Section 120-B of IPC. Simultaneously, the learned trial Court has acquitted the co-accused Govind and Smt. Geeta of offences under Sections 302/34 and 120-B IPC. According to the prosecution, on 20.12.02 Banwari (P.W.12) lodged a written report (Ex.P-14) at Police Station Bandikui, wherein he alleged that in the afternoon, he saw a crowd of men standing at a culvert (Nala). He also saw a dead-body of a person lying in the culvert (Nala). When he went close to the dead-body, he realised that it was the body of his nephew-Ashok. According to him, the dead-body had sustained two or three injuries on the head and the face was covered with blood. He alleged that someone had killed Ashok and had thrown away the body in the culvert. On the basis of the said report, a formal FIR (Ex.P-45) was chalked out for offence under Section 302. After a thorough investigation, the police submitted the challan against Santosh, Govind and Smt. Geeta for offences under Sections 302/34 and 120-B IPC. In order to prove its case, the prosecution examined thirty witnesses and submitted fifty- seven documents. The defence did not examine any witness, but did submit a few documents. After going through the oral and documentary evidence, the learned trial Court pronounced the judgment as aforementioned. During the course of trial, the prosecution tried to establish that Ashok and Santosh were partners in the business of running Bugga (an indigenous manufactured motor vehicle used by agriculturist in the countryside). However, Ashok was arrested in a murder case and sent to the judicial custody for four-five months. During this period, Santosh looked after Ashok's family. While Ashok was incarcerated, Santosh used to take Ashok's wife to the Jail to facilitate their meeting. However, during this period, allegedly Santosh and Geeta developed an illicit relationship. The prosecution also claimed that Santosh helped Ashok in being released from the judicial custody. When Ashok came back, he objected to the closeness of relationship between Santosh and Geeta. The prosecution claimed that in order to get rid of Ashok, Santosh, Govind and Smt. Geeta entered into a conspiracy in furtherance of which Santosh and Govind killed Ashok. Since, the case is based entirely on circumstantial evidence, the learned trial Court relied on the following circumstances to convict Santosh of offence under Section 302 of IPC. Firstly, the illicit relationship between Santosh and Geeta was proved. Secondly, Santosh and Govind were last seen with the deceased in “Jhalani Ki Bagichi”. Thirdly, on the next day, dead-body of the Ashok was discovered in a nearby culvert (Nala) and the FIR was lodged immediately . Fourthly, according to the post-mortem report, the death was homicidal in nature. Fifthly, a “Barchi” (Small Axe) was recovered upon the information given by Santosh. Lastly, immediately after the alleged crime, Santosh had gone to Geeta's house and told her that “he may have to spend sometime in Jail”. Considering the chain of circumstances, while Santosh was convicted, the other two co-accused persons namely Govind and Geeta were acquitted. Mr. Reashm Bhargava, the learned counsel for the appellant, has raised the following contentions before us : firstly, Gopal (P.W.2), the witness of “last seen” is a chance witness and is wholly unreliable. Secondly, the prosecution has failed to establish a motive for the crime. The absence of motive in a case based on circumstantial evidence leaves a gaping hole in the story of the prosecution. Thirdly, Hemlata (P.W.7), daughter of the deceased, is a child witness and is also unreliable one. Fourthly, the alleged stray statement made by Santosh that “he may have to spend sometime in jail”cannot be treated as an extra-judicial confession as it is not inculpatory in nature. Fifthly, the mere recovery of Barchi does not connect the accused to the alleged crime. According to the learned counsel, the case rests solely on a strong suspicion. The chain of circumstances do not unerringly point towards the guilt of the accused-appellant. Therefore, the prosecution has failed to prove its case. On the other hand, Mr. Ashwini Sharma, the Public Prosecutor for the State, has vehemently argued that Gopal (P.W. 2), is a resident of same village; he could, therefore, easily identify the accused persons while they accompanied the deceased-Ashok. Secondly, since illicit relationship had developed between Santosh and Geeta, there is a strong motive to get rid of Ashok. Thirdly, although Hemlata is a child witness, but her testimony is reliable. Therefore, he has supported the impugned judgment. We have heard both the learned counsels for the parties, have perused the impugned judgment and have critically examined the record. Principle covering the case of circumstantial evidence has been repeated often by the Hon'ble Supreme Court. Recently, in the case of Ramreddy Rajesh Khanna Reddy V/s. State of Andhra Pradesh (2006) 10 SCC 172, the Hon'ble Supreme Court observed that to base a conviction on circumstantial evidence prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. Moreover, suspicion, however, grave cannot be a substitute for a proof and the courts should take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. Gopal (P.W.2) is the star witness of the prosecution. According to him accused Santosh and Gopal had come to his village where he had seen them. On the fateful day, he had gone to Bandikui to buy some goods. Around 7'o clock in the evening, while he was returning on a bicycle from Bandikui to his village, he claims that he saw Santosh and Govind alongwith the deceased, Ashok. He also claims that all the three persons were sitting in “Jhalani Ki Bagichi” and were eating peanuts. In his cross-examination, he admits that he had seen the police when they had come to recover the dead body. He also claims that he did not tell the police about his seeing the deceased alongwith the two accused persons, as he did not know that Ashok had been murdered. According to him, his statements were recorded after five days of the alleged crime. Undoubtedly, Gopal (P.W.2) is a chance witness, who claims to have passed near the “Jalani Ki Bagichi” and claims to have seen the deceased alongwith the accused persons. However, it is interesting to note that according to his testimony, he saw the three persons around 7'o clock in the evening, in the month of December, when it is already quite dark. He claims that he had seen the three persons while he was riding on a bicycle. Furthermore, he does not tell us that there was a source of light under which he could have clearly seen the accused persons alongwith the deceased. According to the site-plan (Ex.P/1) no source of light exists at the scene of the crime. Moreover, in his cross-examination, he clearly admits that besides the two accused persons and the deceased there were other ten to twenty persons standing there. It is rather surprising that the witness was riding a bicycle, was in motion, yet he could pick out the accused and the deceased in a crowd of twenty persons and that too in the darkness of the night. Surprisingly, in his testimony he does not tell us how he could have identified the accused persons. He neither described the accused persons, nor described the clothes they were wearing. Yet, he is so observant as to notice that the accused and the deceased were eating peanuts. Moreover, for five days he maintained a studied silence over the entire incident. Even if he did not know about Ashok's murder when he saw the police party, but being a resident of the same village he was duty-bound to reveal the said information when the news of the murder spread through the village. But, this witness maintained studied silence over the entire affair. To further weaken his testimony, there is a clear-cut contradiction between his testimony and the testimony of the Investigating Officer, Phool Chand (P.W.30). While Gopal claims that police had come to him to record his statement and denies the fact that he went to the police, the Investigating Officer claims that Gopal had come to police and stated the fact that he had seen the accused persons alongwith the deceased. Hence, we do not find Gopal (P.W.2) as a trustworthy or a creditable witness. Thus, there is no evidence about the “last seen”, in the present case. Motive is a very strong link in a case of circumstantial evidence. Although, the learned trial Court has concluded that motive to get rid of Ashok is conspicuously present in the case, the totality of the circumstances negate such a inference. According to the prosecution, Santosh had helped Ashok in being released from the judicial custody. In case, an illicit relationship had developed between Santosh and Geeta, there is no reason why the paramour would try to bring the husband back into the house where the paramour is happily living with the wife. In fact, paramour and the wife would be more than happy to have the husband locked up and far away from them so that they could carry on their nefarious activities. Thus, there is no reason why Santosh would bring Ashok out of the judicial custody only to kill him subsequently. Moreover, one cannot lose sight of the fact that Ashok was allegedly involved in a murder of neighbor's son. Therefore, the neighbour and other persons in the village would have a stronger reason, motivated as they would be by sense of revenge, to kill Ashok. Hence, the inference drawn about the existence of motive is without any foundation. Hemlata (P.W.7) was produced by the prosecution to prove the element of extra-judicial confession made by the accused- appellant. According to her testimony Govind and Santosh had come to her mother's house at 12 o'clock at night. Santosh had also returned the next morning and told Geeta that “he might have to spend sometime in jail”. In the examination-in -chief, she admits that she did not tell anyone about the statement made by Santosh to Geeta. Her, silence about this fact casts a doubt on the veracity of her statement. Firstly, in case Santosh had come at dead of the night, there is no reason why he would not have told Geeta about the alleged murder of her husband by him. Secondly, there is no reason why the statement would be made by Santosh on the next morning, that too when he had already met Geeta at night. Thirdly, Hemlata does not reveal this statement to anyone in the family or in the neighbourhood, but reveals it, for the first time, in the Court. Her silence is, thus, inexplicable. Hence, we do not find Hemlata as a trustworthy witness. Moreover, the mere statement that “he would have to spend sometime in jail” cannot be interpreted as an extra-judicial confession. An extra-judicial confession necessarily would have to be an incriminating statement whereby the accused reveals the role played by him in the commission of the crime. A mere statement that “person may have to go to the jail” does not incriminate him in the alleged crime. Confession must be specific in terms of the offence. An admission of a gravely incriminating fact even if conclusive will not constitute a confession. An admission must be in terms of th offence alleged, it cannot be constructed as meaning that the statement is suggesting towards inference that the accused has committed the crime. In a confession there must be admission in terms of offence disclosing all the facts constituting the offence. A confession cannot be inferred. Therefore, statement which merely suggests an inference about guilt of accused is not a confession. Hence, the learned trial Court erred in treating the alleged stray statement made by Santosh as an extra-judicial confession. The recovery of Barchi from a dry well does not buttress the case of the prosecution. Firstly, the recovery was from an open place, accessible to all. Secondly, according to the FSL Report, there is merely the existence of human blood, but the blood group has not been identified. Thirdly, although the clothes worn by the accused were recovered, they did not show the presence of any blood. Therefore, the recoveries of Barchi and the clothes worn by the accused do not connect the accused to the alleged crime. It is equally settled principle of criminal jurisprudence that strong suspicion cannot take the place of proof, moreover, a person cannot be convicted on strong suspicion. A conviction has to be based on cogent and reliable evidence produced by the prosecution (Ref. to Pawan Kumar V/s. State of Haryana (2002) 3 SCC 628, Swinder Singh V/s. State of Punjab 1992 Suppl. (2) SCC 210, Babu Singh V/s. State of Punjab 1963 (3) SCR 749). In the instant case, we are left with only strong suspicion. Hence, the conviction cannot be upheld. On the other hand, the bare perusal of the impugned judgment clearly reveals that the trial Court has meticulously discussed the evidence against the co-accused Govind and Geeta. It has rightly acquitted Govind and Geeta of the offence under Sections 302/34 and 120-B IPC. For these reasons, we dispose of the instant appeals in the following terms : (i) We allow the appeal of appellant Santosh @ Surendra and acquit him of the charge under Section 302 IPC. The appellant Santosh @ Surendra, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case. (ii) We find no merit in the appeal preferred by State of Rajasthan against the finding of acquittal recorded by learned trial Judge in regard to accused respondents Govind Vyas and Geeta and the same accordingly stands dismissed. (iii) The impugned judgment of learned trial court stands modified as indicated above. [R.S.CHAUHAN]J. (SHIV KUMAR SHARMA) J. A.Asopa/