-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Girdhari Lal Vs. State of Rajasthan (D.B. CRIMINAL APPEAL NO.322/2002) D.B. Criminal Jail Appeal under Section 374 Cr.P.C. against the judgment dated 22.3.2002 passed by the Additional Sessions Judge (Fast Track), Ratangarh, Distt. Churu in Sessions Case No. 5/2002. *** Date of Judgment :: 17.3.2008 P R E S E N T HON'BLE MR.JUSTICE PRAKASH TATIA HON'BLE MR.JUSTICE BHANWAROO KHAN Mr. R.S. Gill,for the appellant Mr. V.R. Mehta, Public Prosecutor BY THE COURT (PER HON'BLE MR. B.KHAN J.) : The accused-appellant Girdhari Lal is the husband of deceased Smt. Sajna, whose real brother Mani Ram, the informant when came to know about his sister missing since 2.6.2000 made a search all around and for that purpose he also went to the house of accused's sister in Village Narasra but there also he could not found his sister on which he lodged a -2- missing report on 13.6.2000 at the Police Station, Kotwali Churu and continued his search. On 20.6.2000, he came to know about the whereabouts of accused Girdhari Lal being present in 'Dhani of Sriram' whereupon he along with his uncle Basesar, Dungra Ram and also maternal uncle Shishpal, Surja Ram went to said Dhani where Girdhari Lal was present. He made an enquiry about his sister's whereabout, on which Girdhari Lal replied that a mistake has been committed by him and he has killed Smt. Sajna. Upon this confession, he went to the police station and lodged an FIR against accused-appellant Girdhari Lal. The police after investigation submitted challan against the accused under Sections 302 and 201 I.P.C. in the Court of Additional Sessions Judge (Fast Track), Ratangarh, Distt. Churu. The accused denied the charges levelled and claimed for trial. The prosecution in all produced sixteen witnesses and exhibited documents Ex.-P/1 to Ex.-P/29. The accused- appellant in his statement under Section 313 Cr.P.C. denied the allegations of the prosecution witnesses and pleaded that he was in the 'Dhani of Sriram' for last two months before the incident and his children were dropped at his brother's residence. Three witnesses were also produced in defence. The trial court after evaluating the oral as well as documentary evidence discarded the theory of -3- alibi put-forth in defence by the accused and convicted the accused under Section 302 I.P.C. and sentenced him to undergo life imprisonment along with fine of Rs.1,000/-; in default thereof further to undergo one years' rigorous imprisonment. The accused- appellant has preferred this appeal against the said judgment. Both the parties were heard. The entire record was gone through. The learned counsel for the appellant pleaded that the total investigation of the prosecution is based on false and fabricated evidence. During investigation, the mentioning of time on the documents was avoided by the police intentionally. The information which was alleged to have been given by accused-appellant Girdhari Lal under Section 27 of the Evidence Act is of no evidentiary value because before information was given by the accused, the police and all the witnesses produced were in knew of fact that the body of deceased Sajna was lying in pit of sewerage of house belonging to the accused. The said information was fabricated only for the purpose of creating of evidence against the accused. The children of the accused were not examined knowingly as they could have been best witnesses. The postmortem report of deceased Sajna is of no consequence as it does not reveal the cause of death. There are many infirmities, -4- improvement and contradictions in the statement of prosecution witnesses and lacks corroboration as the case is totally based on circumstantial evidence. The prosecution has failed to link the chain of circumstances against the accused for commission of crime. No one has seen the accused with the deceased at the time of commission of offence. The identity of the deceased has also not been verified and the learned trial court has not discussed the evidence produced in defence. The extra judicial confession alleged to have been given by the accused, has not been proved beyond doubt. In all various infirmities in prosecution case reveals that the case is very shaky and doubtful because of some inherent infirmities and improbabilities running through its entire story and the accused deserves the benefit of doubt. The learned Public Prosecutor vehemently supported the judgment of the trial court and pleaded that the case is based on extra judicial confession made by the accused before five prosecution witnesses namely PW-1 Shishpal, PW-9 Mani Ram, PW-10 Surja Ram, PW-11 Basesar and PW-12 Dungar Das. Besides extra judicial confession, the body of the deceased was also recovered at the instance of the accused after furnishing the information under Section 27 of the Evidence Act. The body was recovered in the house belonging to the accused and whatever alibi he has -5- produced has not destroyed the prosecution case. These two factors i.e. extra judicial confession and recovery of body completely links the accused in the commission of crime because it was in the knowledge of accused only and none else as the body was buried by him in the pit of sewerage and nobody else could have seen or knew about it. The postmortem report of- course does not reveal any cause of death because the body was completely decomposed and putrefied and because of this fact the members of Medical Board could not opine about the real cause of death. Since the deceased was wife of the accused, the body was found buried in the pit of sewerage of the house belonging to the accused, it was the accused who could have explained about the situation as to how the dead body reached in the pit of sewerage of his house. The conduct of the accused in not informing about his wife is also suspicious. The alibi as pleaded has not been proved and a false alibi, if raised, goes against the accused himself. The learned trial court after relying on all these facts, has rightly convicted the accused and no interference is warranted in the appeal. Of course, there is no direct evidence in the instant case. The case hinges upon the circumstantial evidence and also upon the extra judicial confession made by the accused. The extra judicial confession should be voluntarily, without any coercion inducement or threat and it should be made by the accused person. -6- The extra judicial confession should relate and admit in terms of offence or at any rate substantially all the act which constituted the offence. The extra judicial confession cannot be made the sole basis of conviction and its evidentiary value depends on the nature of the circumstances. Taking care of all these facts about extra judicial confession if the testimony of the prosecution is scrutinized, than it is proved that it was the accused who gave out the information in presence of four witnesses, on being enquired by Mani Ram that he has killed his wife Sajna. There is nothing in cross-examination of all these four witnesses which shatters the prosecution story. If the statement of PW-1 Shishpal is excluded and discarded as in his cross-examination he has stated that accused Girdhari Lal was arrested on 20.6.2000 at about 2.00 a.m., which is against the theory of prosecution, all other witnesses and documents show that accused was arrested on 20.6.2000 at about 2.00 p.m., still there is ample corroboration and proof that accused Girdhari Lal made extra judicial confession about the killing of his wife before all these four witnesses. There is no theory of inducement, threat or any other evidence on behalf of the accused which cast doubt about making of voluntary confession for the commission of offence. All the witnesses PW-9 Mani Ram, PW-10 Surja Ram, PW- 11 Basesar and PW-12 Dungar Das have proved beyond -7- doubt that the accused made confession of killing his wife. Simply they being relatives their corroborative testimony cannot be thrown away. It has been rightly proved that accused Girdhari Lal made extra judicial confession voluntarily about killing of his wife. The trial court has not committed any illegality while relying on the extra judicial confession made by the accused. It is trite law that the extra judicial confession cannot be made the sole basis for conviction of the accused as this is a very weak type of evidence. Some corroboration is needed in support thereof, which can be found from the testimony of prosecution witnesses in terms of recovery of dead body. Here in the instant case as per prosecution witnesses when Mani Ram came to know about the murder of his sister, he immediately went to the police station while leaving behind Shishpal, Surja Ram, Basesar, Dungar Das, who kept guard on accused Girdhari Lal. The police after recording the FIR went to Dhani of Sriram. PW-14 Taj Mohammed, who conducted all the investigation stated that after recording the FIR he along with Mani Ram went to Sriram's Dhani where he found accused Girdhari Lal, who tried to run away but was caught. There he prepared the arrest memo Ex.-P/1 and on the spot when interrogated, the accused gave out the information Ex.-P/27 under Section 27 of the Evidence Act narrating that the body of wife Sajna -8- is lying buried in the pit of sewerage of his house. In consequence of the said tendered information, they all went to the house of the accused and after digging the said pit at about depth of 30-35ft. a decomposed body was recovered from it which was identified by Mani Ram on the basis of ear rings, nose ring which were taken in his possession through Ex.-P/24, site- memo Ex.-P/16 was also prepared by him, Panchayat Nama Ex.-P/11 of decomposed body was also prepared. Clothes and Chappal which were lying with the dead body were taken in the possession through Ex.-P/12 and a wooden stick (Sheru) was also recovered at the instance of the accused and was taken in his possession through Ex.-P/29. The body was completely decomposed and could not have been taken away, the postmortem was conducted by the Medical Board on the post. About which PW-2 Dr. Anwar Ali has stated that postmortem of Smt. Sajni was conducted by the board consisted of Dr. C.S. Gehlot, Dr. Rakesh Bhargava including himself. As per his statement the body was completely decomposed. The Board could not opine about the cause of death as the body was completely decomposed but the visceras were preserved, postmortem report Ex.-P/1 was prepared. The fact that the cause of death of the deceased was not disclosed by the Board is not of much help to the accused, because the other circumstances such as extra judicial confession and recovery of dead body completely links the accused in commission of offence charged. -9- If a fact is disclosed in consequence of information tendered under Section 27 of the Evidence Act, then discovered fact is admissible in evidence. Here it was accused who gave out the information under Section 27 of the Evidence Act, which led to discover the dead body of the wife of accused and that too in the pit of sewerage of his own house, which no body else could have known. This fact of body being buried underneath in a pit was only within the knowledge of the accused, for which the explanation should have been given by him under Section 106 of the Evidence Act as the fact was only in his knowledge. Section 106 of the Evidence Act is an exception to the general rule about burden of proof which are specially within the knowledge of the accused. It is true that the application of Section 106 of the Evidence Act cannot absolve the prosecution from discharging its primary duty of proving the case beyond doubt. The prosecution has led reliable trustworthy and corroborative evidence about the extra judicial confession and about the recovery of dead body from the pit of sewerage in the house of the accused, than in such situation the burden would be on the accused to explain about the fact how the dead body of his wife was buried underneath in a pit and how he came to know about the same, about which the accused has not uttered a single word except his alibi. -10- Now comes the question of alibi, about which three witnesses have been produced, DW-1 Sriram has stated that the accused was doing masonry work in his well, which was being dig for last 1-2 months, when the police arrived at his place DW-2 also stated in the same manner. About the question of construction of well, no question was asked to any of the prosecution witnesses who were present at Sriram's Dhani except one PW-10 Surja Ram who specifically denied about this fact. The defence produced is very vague and unreliable. In comparison of prosecution testimony the evidence of defence about the alibi is found to be false and created one. The burden of proving alibi by the evidence is completely on the accused, which the accused has failed to prove. A plea of alibi, if raised, it found to be false, than the fact also goes against the accused. The trial court while relying on extra judicial confession of accused and documentary evidence of recovery of dead body from the pit of sewerage in the house of accused, has neither committed illegality nor irregularity, as the testimony of prosecution has fully proved that it was the accused only who committed the offence charged. No interference is warranted in the judgment of trial court. The appeal deserves to be dismissed. Accordingly, the appeal filed by accused- -11- appellant Girdhari Lal is dismissed. The accused is in jail, who will serve the remaining part of his sentence. (BHANWAROO KHAN) J. (PRAKASH TATIA) J. RM/-