Prabhu v. State of Rajasthan — 1989 DIGILAW 623 (RAJ)

R.S. VERM A, J.—Appellant Prabhu has been convicted by the learned Sessions Judge, Jalore, of offences under sections 302 and 201 I.P.C. vide his judgment dated 6-7-83. On the first count, he has been sentenced to undergo life imprisonment and to pay a fine of Rs. 200/- and in default to undergo rigorous imprisonment of three months; on the second count, he has been sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 200/- and in default to undergo, rigorous imprisonment for three months. Aggrieved, he has come to this Court. 2. Briefly stated, the prosecution story is that appellant Prabhu, who is resident of Bakasar within jurisdiction of police station, Sarvana, district Jalore, had been married some three or four years prior to the incident to Shanta daughter of Moolji PW 2 r/o Khadol, police station Bab, district Banaskantha (Gujarat). It is alleged that Smt. Shanta used to complain of ill-treatment from her husband to her parents whenever she visited them at Khadol. It is alleged that two months prior to the incident, Smt. Shanta visited her parents at Khadol and returned after staying for some time to Bakasar with her husband, the present appellant. 3. The prosecution story, further, is that on 26.6.82, Naga PW 4 r/o Kukadia Dhani saw appellant at the shop of Jhumarmal at Kukadia. This was at about 4 p.m. He also saw the wife of the appellant there. The appellant was asking his wife to go to Bakasar with him but she was not willing to go. Inspite of this, accused proceeded towards Bakasar with his wife. Tee same day, PW 5 Magan Lal r/o Dasoria saw the appellant proceeding from the direction of Kukadia Dhani to Bakasar. It is alleged that at that time, the appellant was having an axe with him and some heated arguments were going on between the husband and the wife. The prosecution story, further, is that the same day soon after sun set or near about sun set, PW 3 Himmat Singh, who was going to Antila with his bullock heard the shricks of a lady. When he went nearer, he saw the accused standing with an axe and nearby lay the dead body of his wife hacked into two or three pieces. Himmat Singh tried to proceed towards the accused but the accused threatened him with dire consequences. When he went nearer, he saw the accused standing with an axe and nearby lay the dead body of his wife hacked into two or three pieces. Himmat Singh tried to proceed towards the accused but the accused threatened him with dire consequences. Scared, Himmat Singh went away to Antila. He stayed there for a couple of days and on 30.6.82, went to Khadol and informed PW 2 Moolji about this incident. 4. The prosecution story, further, is that on 30.6.82, PW 6 Chakuji, PW 12 Bherji and PW 13 Bhinya Ram were sitting in front of shop of one Balwant Singh at Bakasar. They saw the accused appellant passing that way and accosted him because a rumour had been afloat in the village. that accused had killed his wife. On being accosted, the accused took all the three of them to his house and told them that he had done his wife to death by hacking her into pieces by an axe and had also burnt her body. The prosecution story is that Chakuji Bherji and Bhinya Ram were not satisfied and asked the accused to take them to the place where the incident had taken place. Upon this, accused appellant took them to the outskirts of the village Ankodeo where lay a heap of ashes and some bones were lying scattered. 5. The prosecution story is that Moolji on being informed by Himmat Singh about the incident, went to Bakasar, where Chakuji, Bherji and Bhinya Ran informed him of this alleged extrajudicial confession of the accused. Moolji was also taken by them to the scene of occurrence. After having visited the scene of occurrence, Moolji went back to Khadol where he summoned his cousin Ganga Ram. Both of them eventually went to Jalore where a report Ex. P1 was got typed by Moolji. Moolji presented this report to Superintendent of Police, Jalore on 8.7.82. Thereafter, Moolji handed over report Ex. P1 with the endorsement of Superintendent of Police, Jalore, to Ganga Ram because he (Moolji) was feeling unwell. Ganga Ram went with this report to police station, Sarvana, on 11.7.82 and submitted the same to the S.H.O. On this report being presented, S.H.O,. Sarvana, registered a case under sections 302 and 201 I.P.C. and proceeded to investigate into the matter. On 13.7.82, he inspected the site in presence of Moolji and prepared site plan Ex. Ganga Ram went with this report to police station, Sarvana, on 11.7.82 and submitted the same to the S.H.O. On this report being presented, S.H.O,. Sarvana, registered a case under sections 302 and 201 I.P.C. and proceeded to investigate into the matter. On 13.7.82, he inspected the site in presence of Moolji and prepared site plan Ex. P12 and its legend Ex. P2. According to the prosecution story, some blood was lying at the spot and the blood stained earth was recovered by Ummed Singh; he likewise, recovered control soil from the said spot. Memos Ex. P5 and Ex. P6 were prepared in this regard. Ummed Singh found some ashes and some burnt bones at the spot. He also recovered them along with some pieces of bangles vide Ex. P3. Some coins, hooks of a bodice and a burnt ring were also lying there. They were also recovered vide Ex. P4. All these articles are said to have been duly sealed at the spot. 6. The prosecution story is that the accused appellant was arrested on 19.7.82 at 3. p.m. vide Ex. P13. On 21.7.82, an axe was recovered at the instance of the accused. Likewise, certain ornaments allegedly belonging to the deceased were recovered by the Investigating Officer. These ornaments and the burnt ring were eventually put up for identification before PW 9 Mohan Singh on 18.8.82. At such identification parade, PW 7 Smt. Kallu mother of the deceased identified these ornaments as belonging to the deceased. During the course of the investigation, statements of various witnesses were recorded and various articles were sent to State Forensic Laboratory at Jaipur. However, it appears that no report with regard to any examination from the Forensic Laboratory was received. Upon such material, the accused was challaned before Munsif and Judl. Magistrate, Sanchore, who on 22.9.82 committed him to Sessions to stand trial for offences under sections 302 and 201 I.P.C. 7. The learned Sessions Judge framed due charges against the accused, who pleaded not guilty and claimed trial. At the trial, the prosecution examined as many as 14 witnesses. Various documents pertaining to recoveries were also, inter alia, produced in evidence. In his statement recorded u/s 313 Cr.P.C, the accused denied his complicity in the alleged crime. The learned Sessions Judge framed due charges against the accused, who pleaded not guilty and claimed trial. At the trial, the prosecution examined as many as 14 witnesses. Various documents pertaining to recoveries were also, inter alia, produced in evidence. In his statement recorded u/s 313 Cr.P.C, the accused denied his complicity in the alleged crime. According to him, his wife had left two months prior to the alleged incident for the house of her parents and she had not returned thereafter. According to him, he had been falsely implicated. He, however, did not lead any defence. 8. Learned trial Judge after hearing both the sides, found that the testimony of Himmat Singh was absolutely unreliable and did not inspire any confidence. He, however, found that the appellant had been seen firstly by PW 4 Naga and secondly by PW 5 Magan Lal proceeding with his wife towards Bakasar. He also found that an extra-judicial confession, as alleged, had been made by the accused in presence of PW 6 Chakuji, PW 12 Bherji and PW 13 Bhinya Ram. In his opinion, the extra-judicial confession was voluntary and reliable. He held recovery of a burnt ring, from the spot established but found it hazardous to place reliance upon the same. He found recovery of ornaments from the house of appellant also established but found that this factor was not of any consequence inasmuch as there was no evidence that the deceased had been wearing these ornaments immediately before her death. According to the learned Judge, these ornaments could have been in the natural and normal custody of the husband because the wife used to live with him. He, however, found that there was no evidence to show that blood stained earth recovered from the spot contained human blood. He, further, found that there was no evidence of human blood having been found on the axe. Upon such evidence, he convicted and sentenced the appellant as stated above. 9. In the present case, it has been urged on behalf of the appellant that prosecution has failed to establish that Smt. Shanta had at all died or for that matter, had died an unnatural death. It is submitted that the bones said to have been recovered from the spot, were not got chemically examined to establish that they were bones of a human being or for that matters bones of a lady. It is submitted that the bones said to have been recovered from the spot, were not got chemically examined to establish that they were bones of a human being or for that matters bones of a lady. It is submitted that the testimony of Naga and Magan Lal is unworthy of credence inasmuch as they were examined quite late by the Investigating Officer and prier to such examination, they had not disclosed the fact to anybody, that they had seen the appellant going with the deceased. It is urged that the evidence regarding extrajudicial confession also does not inspire any confidence and the evidence is unworthy of belief. It is submitted that according to the prosecution, PW 6 Chakuji, PW 12 Bhorji and PW 13 Bhinya Ram had narrated the story of the said extra-judicial confession to Moolji. But surprisingly enough, the report made by Moolji does not even faintly refer to such an extra-judicial confession. It is submitted that the F.I.R. in the case had been lodged with great deal of delay and this creates a reasonable doubt about the veracity of the prosecution story. 10. Learned P.P. has opposed the appeal and she has submitted that learned trial Judge was right in accepting the evidence of PW 4 Naga and PW 5 Magan Lai with regard to the appellant having been seen in the company of his wife prior to her death. She likewise submits that the evidence regarding extra-judicial confession has been rightly acted upon by the learned Sessions Judge. 11. We have carefully considered the rival contentions advanced before us. We have also carefully perused the record of the learned court below. 12. The first and foremost feature in this case is that though the alleged murder is said to have taken place on 26.6.82 and is said to have been brought to the notice of Moolji on 30.6.82, the F.I.R. was not promptly lodged. The F.I.R. was lodged as late as 8.7.82. There is no valid or cogent explanation for this extra-ordinary delay. This delay in lodging the F.I.R. creates a good deal of suspicion regarding the veracity of the prosecution story particularly when the prosecution has failed to explain this delay in any satisfactory manner. 13. The F.I.R. was lodged as late as 8.7.82. There is no valid or cogent explanation for this extra-ordinary delay. This delay in lodging the F.I.R. creates a good deal of suspicion regarding the veracity of the prosecution story particularly when the prosecution has failed to explain this delay in any satisfactory manner. 13. The first and foremost question; which ought to have been considered by the learned Sessions Judge was whether the prosecution had succeeded in establishing beyond reasonable doubt that Smt. Shanta had died and, further; that she had died an unnatural death. In the present case, the corpus delicti has not been recovered. True, that it is not always necessary that corpus delicti maybe recovered. It depends upon individual facts of each and every case if corpus delicti could be recovered or not. In the present case, it is alleged that certain bones in burnt condition were recovered from the scene of occurrence. Medico-legal examination of these bones could have successfully shown whether the bones pertained to a human being and if so, whether they further pertains to a lady. The examination of the bones could have further revealed the age of the deceased. Such examination would have afforded the best evidence in the case and unfortunately, this evidence is not forthcoming. The inference is that the result of chemical examination was not favourable to the prosecution. 14. This is an admitted position of the prosecution-that Smt. Shanta had visited her parents place about two months prior to the alleged occurrence. The accused had also stated that his wife had gone to meat her parents two months prior to the occurrence. It was for the prosecution to establish satisfactorily that Smt. Shanta had come back to her husbands place and had been seen living with him at Bakasar immediately prior to the occurrence. True that Moola Ram has stated that Smt. Shanta had gone back to her husbands house with the accused but Moola Rams wife Smt. Kulloo does not support him and is silent on this aspect of the matter altogether. It does not appear that the Investigating Officer took any pains to examine the neighbours of the appellant living at Bakasar to ascertain if Smt. Shanta had at all returned to her husbands house. It does not appear that the Investigating Officer took any pains to examine the neighbours of the appellant living at Bakasar to ascertain if Smt. Shanta had at all returned to her husbands house. Had such witnesses been examined, they could have satisfactorily shown that the deceased had come to live back with her husband prior to her alleged murder. Non-examination of such evidence belies the claim of Moola Ram that Smt. Shanta, after visiting the house of her parents, had returned to Bakasar. There is no reliable evidence on record to show that Smt. Shanta had at all died or died an unnatural death. In the circumstances, we find it difficult to hold that the prosecution has succeeded in establishing that Smt. Shanta had died; we find that prosecution has miserably failed to establish that Smt. Shanta died any unnatural death. 15. The testimony of Himmat Singh was very rightly rejected by the learned trial Judge and we are in entire agreement with him inasmuch as Himmat Singhs conduct is not competable with his being an alleged eye witness of the occurrence. He claims that in his presence, the wife was hacked to death yet he went to village Antila and did not mention this fact to any body there and kept mum for a period of almost four days. The conduct is strange and does not inspire any confidence.. 16. Now we may consider the testimony of Naga PW 4 and Magan Lal Pw 5, regarding the theory that deceased was last seen in the company of the deceased. Naga has deposed that nine months prior to his statement, he went to the shop of Jhumarmal to purchase bidis at about 4 p. m. Accused Prabhu and his wife were present there and accused was telling his wife that he would escort her to Bakasar. The wife of the accused was telling that she would not go to Bakasar still the accused proceeded with his wife towards Bakasar. The statement of this witness was recorded on 23.3.83 and that brings this incident to 23.6.82 while the murder is said to have taken place on 26.6.82. The evidence of this witness, even if acceped at its face value, does not" connect the accused with the alleged offence. The statement of this witness was recorded on 23.3.83 and that brings this incident to 23.6.82 while the murder is said to have taken place on 26.6.82. The evidence of this witness, even if acceped at its face value, does not" connect the accused with the alleged offence. Here, it may be stated that this witness does not claim that he had been knowing wife of the accused from prior to the occurrence. This witness is not a resident of Bakasar but is resident of Kukadia Dhani. He has admitted in cross examination that he had no occasion to see the face of the wife of the accused. He has, further, admitted that he had never an occasion to talk to her. He admitted in his cross examination that after four or five days of this alleged meeting, he had heard that Prabhus wife had died. He does not even faintly suggest that he disclosed this alleged chance meeting to anybody prior to the recordeng of his statement by the police. The testimony of this witness, thus, does not inspire any confidence. 17. The same appears to be the case of the testimony of Pw5 Magan Lal. He is also not resident of Bakasar but is resident of Dasoria. His testimony is to the effect that on 26.6.82, sometime prior to sun set, he was going to Dasoria. According to him, he knew accused Prabhu and he saw Prabhu coming from the side of Kukadia near Khari river and was going towards Bakasar.. The witness stated that wife of Prabhu was accompanying him. He does not claim that he knew wife of Prabhu personally. According to him, he enquired from the accused as to where he was going; upon which, the accused told him that his wife was not desirous of staying at Kukadia and, therefore, he was taking her to Bakasar. The witness further states that wife of Prabhu was saying that she would not go to Bakasar in the night and some heated exchange was going on between both of them. In cross-examination, he admitted that he did not intimate anybody of this chance meeting even though he had learnt that Prabhus wife had died four or five days after the chance meeting. He admitted that he did not intimate anybody in the village also about this. In cross-examination, he admitted that he did not intimate anybody of this chance meeting even though he had learnt that Prabhus wife had died four or five days after the chance meeting. He admitted that he did not intimate anybody in the village also about this. In further cross-examination, he admitted that two or three days after the said meeting, he had met Moolji and he had intimated Moolji about this alleged chance meeting. Had it been so, it is but natural to expact that Moolji would have mentioned this fact in the report Ex. P1. Non-mention of this fact "in Ex. P1 goes to show that this story is an after thought and is not reliable. Moreover, PW 5 Magan Lal was purely a chance witness and his testimony does not inspire any confidence whatsoever. 18. This leaves us with the testimony of PW 6 Chakuji, PW 12 Bherji and Pw.13 Bhinya Ram regarding the alleged extra-judicial confession made by the accused to them. The gist of the testimony of these witnesses is that on 30.6.82, they were sitting in front of the shop of Balwant Singh at Bakasar. Accused Prabhu came there. Seeing him, they said that there was a rumour that the accused had killed his wife. They claim that they enquired from the accused as to what was the matter. The accused, thereupon, told them that he would not tell them anything at the village square. He asked them to accompany him to his house, on which all the three persons accompanied him to his house. After reaching the house, he said that he had killed his wife with an axe. He told them that, thereafter, he had burnt the dead body by using firewood. He also told that Himmat Singh had seen the occurrence. According to them, the accused volunteered to take them to the place where he had killed his wife and had burnt her dead body. On this, the accused persons along with the accused went towards Khari river. There they saw some burnt bones and firewood lying along with some coins and a burnt ring. 19. This is true that a conviction can be founded on the basis of an extra judicial confession provided such a confession is voluntary and is proved by cogent and trustworthy evidence. There they saw some burnt bones and firewood lying along with some coins and a burnt ring. 19. This is true that a conviction can be founded on the basis of an extra judicial confession provided such a confession is voluntary and is proved by cogent and trustworthy evidence. It is to be seen whether the accused did make an extra-judicial confession before Chakuji, Bherji and Bhinya Ram as alleged. 20. Normally, an extra-judicial confession is made by an accused before persons in whom, he reposes some confidence. Extra-judicial confessions are not made to strangers usually. It has not been shown by the prosecution witnesses Chakuji, Bhinya Ram and Bherji that they were in any way close to the accused appellant and the accused could confide in them. Hence, it is doubtful that the accused would be making a confession before these persons. 21. According to PW7 6 Chakuji, Moolji father-in-law of accused Prabhu had come to the village Bakasar next day and he had informed Moolji about this alleged extra-judicial confession and had even taken Moolji to see the site. Now Ex. P1 is silent on this vital and important aspect of the prosecution case. Had Chakuji mentioned the story of the alleged extra-judicial confession to Moolji, it is but natural that it would have found mention in Ex. P1. which is the earliest version of the incident given by Moolji. The fact that Moolji had accompanied this witness to see the site and had seen the burnt bones and the burnt ring of his daughter at the site, would have also definitely found mention in Ex. PL PW 12 Bherji has likewise stated in his cross-examination that Moolji had met him the very day Prabhu had taken this witness and his companions to the scene of occurrence. According to him, he had taken Moolji to the scene of occurrence and had informed him about the story of extra judicial confession. According to him, he alone had taken Moolji to the scene of occurrence. While according to Chakuji, it was he who had gone with Bherji to the scene of occurrence in company of Moolji. The two stories are, thus, contradictory to each other and are discrepant and discordant. PW 13 Bhinya Ram also claims that Bherji had given the story of extra-judicial confession to Moolji, who had come to their village. While according to Chakuji, it was he who had gone with Bherji to the scene of occurrence in company of Moolji. The two stories are, thus, contradictory to each other and are discrepant and discordant. PW 13 Bhinya Ram also claims that Bherji had given the story of extra-judicial confession to Moolji, who had come to their village. This evidence does not fit in with the testimony of Moolji himself. According to Moolji, he had met Bherji and Chakuji at Bakasar,. who had told him that the people of the village community were saying that Prabhu had killed Smt. Shanta in the rann. He does not claim that these witnesses informed him that accused had made any extra-judicial confession to them. According to this witness (Moolji), he had gone to Bakasar along with Ganga Ram and Ganga Ram was informed by Bhinya Ram, Bherji and Chakuji that accused Prabhu had murdered Smt. Shanta and Prabhu had admitted about the crime"- ^izHkq us /kwy [kkuk eku fy;k gSA Chakuji does not state that Ganga Ram met him along with Moolji at Bakasar. Bherji also does not say that Ganga Ram had met him as alleged by Moolji. PW 13 Bhinya Ram is categorical that when Moolji came to see him, he was not accompanied with Ganga Ram. PW 1 Ganga Ram does not claim that he had been informed by Chakuji, Bherji or Bhinya Ram that the accused had made any extra-judicial confession in their presence. 22. Thus, we find that the testimony regarding alleged extra-judicial confession is highly discredant and discorpant and unworthy of any belief. Non mention of such an important factor in the F.I.R. goes to show that the evidence on this aspect of the matter, is an after thought. We are therefore, not prepared to place any reliance on this evidence regarding alleged extra-judicial confession. 23. We have already adverted to the aspect that the recovery of a burnt ring from the spot was held to be hazardous by the learned Sessions Judge himself. We agree with him in this aspect of the matter and in our opinion, recovery of a burnt ring from the spot would not advance the matters much. 23. We have already adverted to the aspect that the recovery of a burnt ring from the spot was held to be hazardous by the learned Sessions Judge himself. We agree with him in this aspect of the matter and in our opinion, recovery of a burnt ring from the spot would not advance the matters much. This is true that the burnt ring had been identified by Smt. Kallu as being that of her daughter Smt. Shanta but after having been burnt, the ring must have lost its original features and, therefore it could not have been identified at all. Hence, the alleged identification of this ring by Smt. Kallu does not advance the case of the prosecution. 24. As already stated, learned Sessions Judge did not attach any importance to recovery of the ornaments made at the instance of the accused because he would have been in natural custody of the ornaments of his wife particularly when it has not been shown that she had been wearing them immediately before her alleged death. Hence, in our opinion, the said recovery also does not advance the case of the prosecution at all. 25. The recovery of the axe is also not very useful because it has not been shown that it was stained with human blood. 26. To sum up, we find that the prosecution in this case has miserably failed to establish that Smt. Shanta died an unnatural death; needless to say it is not proved that she died at all. The testimony of alleged eye witness Himmat Singh is absolutely unreliable and unworthy of credence. The prosecution has utterly failed to prove by satisfactory evidence that the accused appellant had been seen in the company of the deceased immediately prior to her alleged death. This has also not been established beyond reasonable doubt that any extra-judicial confession had been made by the accused appellant as alleged. The alleged recoveries do not connect the accused with the alleged time at all. The FIR had also been got lodged after a good deal of delay and no cogent explanation has been put forth to explain this inordinate delay. 27. In view of what we have stated above, we find that this appeal deserves to be accepted. The alleged recoveries do not connect the accused with the alleged time at all. The FIR had also been got lodged after a good deal of delay and no cogent explanation has been put forth to explain this inordinate delay. 27. In view of what we have stated above, we find that this appeal deserves to be accepted. We hereby accept the appeal and set aside the judgment of learned Sessions Judge, Jalore, dated 6.7.83 convicting the accused appellant for offences under sections 302 and 201 I.P.C.. We acquit him of charges under sections 302 and 201 I.P.C. Fine, if paid, shall be refunded to him. He is said to be serving out the sentence. If not required in any other case, he may be released forthwith.