Sidra @ Sirdara v. State of Rajasthan — 1989 DIGILAW 14 (RAJ)

LODHA, J.—Appellant Sidra alias Sirdara had filed this appeal against his conviction under sec. 302,1.P.C. and sentence for imprisonment for life and a fine of Rs. 1000/-; in default, six months further rigorous imprisonment, passed against him by the learned Sessions Judge, Balotra by his judgment dated August 5, 1985. 2. The case is based purely on circumstantial evidence. The circumstances, relied upon by the prosecution were : (1) motive; (2) that the accused had gone along with the deceased Khana Ram on January 5, 1985 for grazing their sheep and goat; (3). that in the evening, the deceased did not return and enquiry was made from the accused about him, whereupon, he, i.e., the accused stated that the deceased had gone in search for a straying goat; (4) that even thereafter, on search, when the deceased was not found, the accused was again contacted in the morning of Jan. 6, 1985 and at that time, the accused gave a different reply, viz., that he had parted company with him at Tala-ka-Mathara; (5) that later, on further search, the dead-body of the deceased was found at Tala-ka-Dhora and two sets of foot-prints were also found; (6) that thereafter, the accused made an extra-judicial confession; (7) that when the matter was reported to the police and the police arrived at the spot and arrested the accused, the accused got a pair of shoe recovered as also an axe in pursuance of the information given by him to the police; and (8) that the pair of chappies of the accused was also got recovered. 3. After carefully considering the evidence on record, in respect of all these circumstances, the learned Sessions Judge found :— (1) that the motive was not proved; (2) that the accused had left the village along with the deceased in the morning of January 5, 1985 along with their sheep and goats; (3) that when the deceased did not return in the evening, the accused told the father and brother of the deceased, on enquiry from him, that the deceased had gone in search of a straying goats; (4) that the witnesses counted the heads of the cattle in the morning of Jan. 6, 1985 and found that no goat was missing; (5) that the witnesses had, then, again contacted the accused and he, this time told them that he parted company with the deceased on Tala-ka-Mathara; (6) that when the search party went to Tala-ka-Mathara, they found two sets of foot-prints going towards the Tala-ka-Dhora, a place downwards from Tala-ka-Mathara; (7) that on reaching that place, the search-party found the deed-body of Khana Ram lying in a pool of blood; (8) that the deceased had died a death by violence; (9) that the search party reached the well of the accused following the footprints and the accused was found at the well; (10) that the accused had made an extra-judicial confession in the presence of P.W. 3 Dan Singh, P.W. 4 Raj Mohammed, P.W. 5 Inder Singh, P.W. 6 Kanwar Raj Singh and P.W. 7 Dhanno. According to the learned Sessions Judge, the confession was voluntary and true. 4. So far as the question of the recovery of pair of shoes of the deceased and the axe of the accused are concerned, the learned Sessions Judge has not only disbelieved the recovery, but has cast a very grave suspicion about the fairness of the investigation and has gone to the extent of holding that the investigating agency was guilty of fabricating the evidence. He has observed:— "After having gone through the entire evidence on record on the point and the case-diary, I have been left in no doubt that the version given by the witnesses of fact is absolutely correct and true and for the version given by P.W. 16 Rami Swaroop S.H.O. the less said is the better." At another place, he observes:— "On knowing that the offender of an unnamed F.I.R. had by that time was not only known but was also readily available even the most reckless, negligent and careless police officer would first like to arrest the offender especially in a murder case. That all makes the version of the witnesses of fact on the point of arrest of the accused on 6.1.85 itself most reliable and acceptable. As against the above the version given by P.W. 16 Ram Swaroop S.H.O. of the arrest of the accused on 7.1.85 is not only quite hopeless, knowingly false and misleading but is also contradictory with the record of his police station even. As against the above the version given by P.W. 16 Ram Swaroop S.H.O. of the arrest of the accused on 7.1.85 is not only quite hopeless, knowingly false and misleading but is also contradictory with the record of his police station even. The version given by him on oath, when is read with the arrest memo Ex. P. 21 and the information and recovery memos of the chappals of the accused (Ex. P. 29 and Ex. P. 10 respectively), both prepared and signed by them, comes to this that the accused was arrested on 7.1.85, information leading to the discovery of the Chappals was given by the accused on 8 1.85 and after that the chappals were recovered and seized on 8.1 85. Now P.W. 8 Bhoor Singh is none else but a Head Constable who was the 1/C of Police Malkhana at P.S. Banner on 6.! .85. He has stated that on 6.1.85 the S H.O. had handed over 4 sealed packets, containing the blood-smeared chappals in one of them, to him. His statement is fully corroborated by the relevant entry, Ex. P. 14A, made by him at S. No. 55 of Malkhana Register dated 6.1.85. Had the chappals of the accused not been seized and handed over to this witness by P.W. 16 Ram Swaroop S.HO. on 6.1 85, this witness had no occasion to make a fales entry in the Malkhana Register. This clearly shows that in fact the accused was arrested on 6.1.85 and his chappals were also seized at the time of his arrest, as stated by the witnesses of fact. The position of the case-diary is still worse. As it cannot be read and referred to as evidence in the case suffice it to point out that it commences with page at S. No. 11 and ends on page serially numbered as 53. The F.I.R. though placed in the beginning is written on page marked as No. 46. Pages at S. Nos. 13, 15, 16, 17, 18, 19, 20, 22, 25, 26, 28. 31, 33, 34, 35, 38, 41, 44 to 47, 49 to 52 are not available on its record. The incomplete sentence written on case diary No. 14. The F.I.R. though placed in the beginning is written on page marked as No. 46. Pages at S. Nos. 13, 15, 16, 17, 18, 19, 20, 22, 25, 26, 28. 31, 33, 34, 35, 38, 41, 44 to 47, 49 to 52 are not available on its record. The incomplete sentence written on case diary No. 14. dated 6.1.85, finds continuity in language on page No. 24 dated 8:1.85 case-diary No. 26 on the back of page No. 24 dated 6.1.85 continues on page No. 26 dated 6.1.85 and a case-diary No. 27 is missing. On pages No. 21 and 23 the full case-diary dated 7.1.85 commencing from No. 1 to 15 has been written. Again the case-diary for 8.1.85 finds its beginning on page No. 27 runs on pages No. 29 and 30 (Page No. 28 is missing) and ends on the back of page No. 30 with case-diary No. 20 written at 10.00 P.M. Comment on these facts, I think, are not called for at the conclusions to be drawing are too obvious. To sum up the net result of the above discussion is that it is proved bey and doubt that the accused in this case was arrested on 6.1.85 as stated by the witnesses of fact and not on 7.1.85 as told by P.W. 16 Ram Swaroop S.H.O." Again he observes: "P.W. 2 Durjan Singh though tried to support the recovery of the two shoes (Ex. 1 and 2) belonging to the deceased, yet could not stand the test of cross-examination. He admitted that first the police arrested the accused and then had prepared the necessary memos. When the police had brought the accused after his arrest, the axe and chappals were also with the police. Both the articles were in unsealed conditions and they were sealed on the place where dead body was found. He further admitted that the fards were got signed at the police station about 4 or 5 days after the death of the deceased. It is thus obvious that the witness has not supported the prosecution case on the point as was advanced by P.W. 16 Ram Swaroop S.H.O. Even P.W. 16 Ram Swaroop did not state the places of the recovery of the two shoes (Ex. Art. 1 and 2) of the deceased. It is thus obvious that the witness has not supported the prosecution case on the point as was advanced by P.W. 16 Ram Swaroop S.H.O. Even P.W. 16 Ram Swaroop did not state the places of the recovery of the two shoes (Ex. Art. 1 and 2) of the deceased. On the whole, the evidence led by these two witnesses on the point is quite unsatisfactory and unreliable. It does not appeal to my reason that after having killed the deceased, the accused would like to obtain his used desi shoes only to hide them at two different places quite far away from each other and his own Dhani or the place of occurrence. The version in this behalf is indicative of a totally abnormal and unnatural conduct of a guilty person and, therefore, cannot be accepted and is, hereby, rejected." 5. Now, so far as these recoveries are concerned, the learned Public Prosecutor has also not been in apposition to support them although, he does not concede that these recoveries were false, and on going through the evidence, we also do not propose to place reliance on those recoveries. Now, we are left with the circumstances, which have been relied upon by the learned Sessions Judge and which, we have catalogued above. We shall consider these circumstances one by one. It may, of course, be stated that it has not been disputed before us by the learned counsel for the appellant that the deceased Khana Ram died a homicidal death and the injuries found on his person by the doctor were sufficient in the ordinary course of nature to cause death. Now, the question, which, therefore, remains to be considered is whether the accused appellant Sirdara can be held guilty for causing the death of Khana Ram. 6. In this connection, as already stated above, there is only circumstantial evidence and according to the learned Sessions Judge, the circumstances found by him are sufficient to hold the accused guilty. We have, therefore, to consider whether this conclusion of the learned Sessions Judge is right or not. 7. The first circumstance relied upon by the learned Sessions Judge is that the deceased Khana Ram had left along with accused Sirdara the village on the morning of Jan. 5, 1985 for the jungle to graze their sheep and goats. We have, therefore, to consider whether this conclusion of the learned Sessions Judge is right or not. 7. The first circumstance relied upon by the learned Sessions Judge is that the deceased Khana Ram had left along with accused Sirdara the village on the morning of Jan. 5, 1985 for the jungle to graze their sheep and goats. This finding is supported by the evidence on record and we are inclined to accept it as it stands. However, in our opinion, the mere going of the accused with the deceased in the circumstances, cannot be held to be a circumstance, which may point towards the guilt of the accused inasmuch as it is common knowledge that when shepherds go to the jungle in order to graze their sheep arid goats, they scatter in the jungle and it is not necessary that they remain together in the jungle throughout. There is absolutely no evidence on the record to show that the accused was in the company of the deceased throughout and at the place where the dead-body of Khana Ram was found lying. Therefore, in our opinion, this circumstance is only neutral and at the best may cast some suspicion against the accused. 8. The second circumstance relied upon by the learned Sessions Judge was that in the evening when Khana Ram did not return, an enquiry was made from the accused Sirdara about him and he informed P.W. 11 Dharma Ram (father of the deceased) and P.W. 13 Tara Ram (cousin of the deceased) that Khana Ram had gone in search of a straying goat. Dharma Ram and Tara Ram do state to this effect, but even if this circumstance is accepted as such, it also cannot be said to be an incriminating circumstance inasmuch as in fact the accused may have been the deceased going in search of a straying goat, and his statement to this effect cannot be said to be a lie, because the heads of the sheep and goats had not been counted at the time this information was given by the accused. They were counted only on the next morning and the possibility that the straying goats may have later come and joined the flock, cannot be ruled out. They were counted only on the next morning and the possibility that the straying goats may have later come and joined the flock, cannot be ruled out. There is no evidence that in the night, the sheep and goats had been closed in a Pan and there was no possibility of the straying goat joining them. Apart from this, the possibility that Khana Ram may have gone in search of straying goats on one side and the straying goats may have joined the flock on the way home from other side, also cannot be ruled out. 9. The next circumstance relied upon by the learned Sessions Judge was that in the morning of Jan. 6, 1985, the accused stated to the persons, who made further enquiry from him that he had parted company with deceased Khana Ram at Tala-ka-Mathara. Now, this circumstance also is not of much importance because, even if he had parted company with the deceased Khana Ram at Tala-ka-Mathara, the deceased may have been alive by that time. The dead-body of the deceased Khana Ram was not found at Tala-ka-Mathara, but was found at a place away from it. Here, again, the possibility that it was at Tala-ka-Mathara that the goats may have strayed and from there, khana Ram may have parted company with Sirdara in order to search the missing goats, cannot be ruled out and, therefore, it cannot be said that Sirdara lied to the witness in order to misguide them. 10. The witnesses have, of course stated that there were two sets of footprints going from Tala-ka-Mathara towards the place where the dead-body of Khana Ram was found lying but whether these foot-prints were necessarily of the accused and the deceased, is a question, which has no answer from the material on record. The foot-prints were not examined by any Pagi, nor the same were got examined by any forensic expert and, therefore, it cannot be said for certain that these foot-prints were those of the accused, and the deceased. It is admitted by the prosecution witnesses that there were other shepherds from the village who wore chappals and shoes and, therefore, the presence of those foot-prints is also not circumstance, which points to the guilt of the accused. 11. It is admitted by the prosecution witnesses that there were other shepherds from the village who wore chappals and shoes and, therefore, the presence of those foot-prints is also not circumstance, which points to the guilt of the accused. 11. The next circumstance, relied upon by the learned Sessions Judge is that thereafter some villagers had collected at the spot and following the footprints from the place where the dead-body was lying, they reached the well of the accused where the accused was found present. We, however, find that this finding of the learned Sessions Judge is not correct. There is absolutely no evidence to show that the well at which the accused was found, belonged to him. All that the witness stated is that he was offering water to his sheep and goats at this well. Again, the fact that in the evening the accused had returned to his home and it was there that enquiries had been made from him and again in the morning, enquiries were made from him at the house, cannot be lost sight of and if the accused had, thus, come to his house, then, it cannot be said that he had gone direct to the well, to which the foot-prints led the witnesses Dan Singh (P.W. 3). Raza Modh. (P.W. 4), Inder Singh (P.W.) Kanwar Raj Singh (P.W. 6) and Dhanno (P.W. 7). Therefore, this circumstance also does not lead us towards the guilt of the accused. 12. Then, the only other circumstance, and which appears to have been heavily relied upon by the learned Sessions Judge is the fact that the accused had made an extra-judicial confession to these five witnesses named above when they reached the well where he was found offering water to his sheep and goats. 13. No doubt, the witnesses have stated that the accused when he was confronted with the fact that his foot-prints were found near the dead-body confessed to them saying- ^^/kwM+ [kkuh gks xbZ vkSj eSaus mls dqYgkM+h ls ekj fn;kA But, the question is whether, as a matter of fact, this confession was made by the accused to these witnesses and whether this confession was voluntary and true Having regard to all the facts and circumstances, we are unable to hold that such a confession had been made by the accused Sirdara to these witnesses in the manner alleged by them. The circumstances, which make us doubt this confession are that all these witnesses admitted that even though the accused had confessed to them that he had killed khana Ram, they did not further question him as to what was the reason for him to have killed Khana Ram No motive for killing Khana Ram has been established against the accused, as has been found by the learned Sessions Judge and which finding has been accep-ted by us. Ordinarily when a person admits a guilt, he gives the reason why he had acted in that manner and in any case, the persons to whom such a confes sion is made, would certainly enquire from him the reason for his conduct but these witnesses admit that they did not question Sirdara in this respect. Then they further admit that they did not inform Dhanna Ram, the father" of the deceased and Tara Ram, the cousion of the deceased, about the extra-judicial confession made by Sirdara before the police arrived and the reason for not disclosing this to Dhanna Ram or Tara Ram as stated by some of the witnesses is that they apprehended that if this information was given to them they may create trouble and the life of Sirdara may be in danger, but this explanation does not appeal to us. Having found the dead-body of Khana Ram and then having obtained the confession of Sirdara in this respect, these witnesses would normally have informed Dhanna Ram and Tara Ram that it was Sirdara who had committed the murder. So far as their fear of trouble at the hands of Sirdara and Tara Ram is concerned, these five persons and the other members of the village could certainly have looked after that affair and no harm could he done to Sirdara till the police arrived. Not only this, even after Sirdara had confessed his guilt, he was not apprehended. All that Dhanno (PW 7) says is that he tool? Sirdara to Sirdaras house and left him there and then he came away This cannot be a normal conduct of the persons, who had obtained a confession from the accused. They would certainly have captured him and kept him under watch so that he may not escape till the police arrived. He was neither tied nor a watch had been kept upon him; therefore, this conduct also appears to be unnatural. 14. They would certainly have captured him and kept him under watch so that he may not escape till the police arrived. He was neither tied nor a watch had been kept upon him; therefore, this conduct also appears to be unnatural. 14. So far as the voluntary nature of the confession is concerned in our opinion, this confession cannot be said to be a voluntary one inasmuch as according to the villagers in the first instance Sirdara was telling them lies and then later they found the dead-body of Khana Ram and traced out the foot-prints to the place where Sirdara was found and it was at that stage that they told him that his foot prints have been found and he must be the only guilty person. Then, the accused made the confession. In these circumstances the possibility that under the duress of these five persons, the accused May have confessed this guilt, cannot be ruled out. 15. We are, therefore, clearly of the opinion that the confession is such that no implicit reliance can be placed upon it and the conviction of the appellant can be based merely on such confession. No doubt, if the confession is found to be voluntary and true, the confession can be based on it, as has been held in Naghar Singh vs. State of Punjab (1) and Piara Singh vs. State of Punjab (2), but, as already stated above, we do not find this confession to be voluntary and true and apart from this confession, the other circumstances, pointed out by the prosecution and relied upon by the learned Sessions Judge, are not such as may point out unmistakably to the guilt of the accused and are clearly explicable on other hypothesis. 16. It may be added that according to the learned Sessions Judge, the investigation has been unfair and the investigating agency has been guilty of fabri-cating evidence and in our opinion this circumstance also is one, which further strengthens our findings of the accused being not guilty. When the investigation is unfair, and the attempt appears to be to fasten the guilty to the accused some how or the other, the court has to be all the more careful in scrutinising the evidence. 17. The natural consequence of our findings as stated above is that the conviction of the appellant cannot be upheld and he deserves to be acquitted. 18. 17. The natural consequence of our findings as stated above is that the conviction of the appellant cannot be upheld and he deserves to be acquitted. 18. For the reasons stated above, the appeal is accepted. The conviction of the appellant Sidra @ Sirdara under sec. 302, IPC is set aside and he is acquitted of that charge. He is in custody and shall be released forthwith, if not required in any other case.