KHERAJ RAM v. STATE OF RAJASTHAN — 1995 DIGILAW 309 (RAJ)

Judgment B. R. ARORA, J. ( 1 ) THE aforesaid Murder Reference has been made by the Additional Sessions Judge, Barmer, under Section 366 Cr. P. C. for confirmation of the Sentence of Death passed by him. Accused Kheraj Ram, also, filed D. B. Criminal (Jail) Appeal No. 481 of 1994, challenging the judgment dated 7-9-94, passed by the learned Additional Sessions Judge, Barmer, by which the learned Additional Sessions Judge convicted him for the offence under Section 302 IPC and passed the Sentence of Death. As the Murder Reference as well as the D. B. Criminal (Jail) Appeal arise out of the same proceedings, they are, therefore, being disposed of by this common judgment. ( 2 ) ACCUSED Kheraj Ram was tried by the learned Additional Sessions Judge, Barmer for committing the murder of his wife Smt. Amru, the two daughters Kumari Meera (aged about 12 years) and Kumari Kesi (aged about 9 years) and his brother-in-law Achla in the night intervening between 9th and 10/10/1992, in village Baytu. The case of the prosecution is that Achla, Smt. Amru, Meera and Kesi were sleeping in the house of the accused. They were found murdered when they were sleeping in the house of the accused in the night intervening 9th and 10/10/1992. The accused, who was, also, in the house, at about 2. 00 a. m. , went to the house of PW 9 Gaina Ram and informed him that some body had given beatings to his wife Smt. Amru, daughter Meera and Kesi and brother-in-law Achla and blood were coming out from their bodies. Gaina Ram went to the house of accused Kheraj Ram along with him and found the truth in the incident narrated by Kheraj Ram. Gaina Rain thereafter went to the house of Daula Ram and informed him about the incident which was narrated to him by Kheraj Ram and found true by him. Gaina Ram and Daula Ram thereafter went to the Dhani of the accused and called other persons of the nearby Dhanis. Thereafter Daula Ram, from the rear side of the Dhani, entered inside the Dhani and saw Smt. Amru lying on the ground and blood was coming out from her body. Meera was also, lying on the ground and was crying and blood was coming out from her body, also. Kheraj Ram was sitting in the Court-yard. Thereafter Daula Ram, from the rear side of the Dhani, entered inside the Dhani and saw Smt. Amru lying on the ground and blood was coming out from her body. Meera was also, lying on the ground and was crying and blood was coming out from her body, also. Kheraj Ram was sitting in the Court-yard. They called him out-side and on enquiry made from him, he was unable to disclose anything. Daula Ram thereafter went to lodge the report at Police Station, Baytu. The FIR was registered at 7. 30 a. m. The name of the accused was not given in the FIR and it was disclosed that somebody had killed Achla, Smt. Amru, Meera and Kesi. During the course of investigation, the investigating officer found that Kheraj Ram was the perpetrator of the crime; he, therefore, arrested the accused, made the recoveries of the Jooti of Achla Ram, the Dhoti of the accused, which was found stained with blood, and the Kulhari - the weapon of the offence-on the information and at the instance of the accused. The motive behind this heninous crime, which was disclosed later-on, was that the accused suspected his wife Smt. Amru as a lady of easy virtues and Meera and Kesi the two daughters - were not born from his loin and the relations between the accused and Smt. Amru were not cordial and they were quarrelling off and on. The prosecution, in support of its case, examined twenty witnesses. The learned Additional Sessions Judge, after trial, convicted accused Kheraj Ram for the offence under Section 302 IPC and passed the sentence of death, which has been submitted to this Court along with the proceedings for confirmation of the capital punishment. The accused has, also, filed an appeal challenging his conviction and sentence. ( 3 ) THERE is no eye witness to the occurrence and the prosecution case mainly rests upon the circumstantial evidence and the extra-judicial confession made by the accused before PW 12 Simratha. The accused has, also, filed an appeal challenging his conviction and sentence. ( 3 ) THERE is no eye witness to the occurrence and the prosecution case mainly rests upon the circumstantial evidence and the extra-judicial confession made by the accused before PW 12 Simratha. The learned Additional Sessions Judge, while convicting the accused, placed reliance over (i) the recovery of the Jooti, blood-stained Dhoti of the accused and blood-stained Kulhari made on the information and at the instance of the accused; (ii) the conduct of the accused, which according to the trial Court, was found abnormal as he was smoking the Chilam when the witnesses from the nearby Dhanis came at the scene of the occurrence and the four dead-bodies were lying in the house of the accused; (iii) the motive that the accused was suspecting the fidelity of his wife Smt. Amru; (iv) the quarrel took place between the accused and deceased, which was heard by PW 5 Smt. Kanu and PW 6 Smt. Veeru; (v) the accused, after committing the murder took-up the shoes of deceased Achla, went to the house of his mother-in-law PW 7 Smt. Saro; and (vi) he was last seen in the Dhani alongwith the deceased. ( 4 ) NOW, it has to be seen : whether the circumstances which have been believed by the learned trial Court have fully established the case against the accused and whether these circumstances show a definite tendency pointing towards the guilt of the accused and the facts established from these circumstances are consistent only with the hypothesis of the guilt of the accused and are of conclusive nature and excludes every possible hypothesis except that of the guilt of the accused, and whether the chain of the circumstances conclusively lead to the conclusion that the accused-appellant Kheraj Ram is the perpetrator of the crime and nobody other than him has committed the crime ? In support of the charges levelled against the accused-appellant, the prosecution relied upon the circumstances which consist of : (i) the Motive with the accused to commit the murder of his wife as he felt that his wife was a lady of easy virtues and the two deceased daughters were not were not born from his loin; and the relations between deceased Smt. Amru and the accused-appellant were not cordial and they were quarrelling; (ii) PW 5 Smt. Kannu and PW 6 Smt. Veeru had heard accused and deceased Smt. Amru quarrelling on the previous night and the accused was saying that the two daughters were not born from his loin and deceased Amru had scattered the money to her friends and the parents; (iii) the accused gave false story regarding the commission of the offence to Gaina Ram and other persons who came at the scene of the occurrence when they were called by the accused; (iv) the conduct of the accused in smoking the Chilam at the time when the other persons, who were called by him, came to his house; (v) the last seen of the accused in the company of the deceased persons in his house; (vi) the extra-judicial confession made by the accused before PW 12 Simratha Ram; and (vii) the recoveries of the blood-stained Dhoti of the accused, the Jooti of deceased Achla and the blood-stained Kulhari on the information and at the instance of the accused-appellant. The learned Additional Sessions Judge believed some of these circumstances and convicted and sentenced the accused-appellant. ( 5 ) THE first circumstances relied-upon by the prosecution and believed by the learned Additional Sessions Judge is the motive with the accused to commit the murder of his wife, the two daughters, viz. , Meera and Kesi -- and his brother-in-law Achla. The motive with the accused, as suggested by the prosecution, was that the appellant had a doubt about the chastity of his wife and quarrel used to take place between the deceased and the accused and on the previous night, PW 5 Smt. Kannu and PW 6 Smt. Veeru heard the voice of quarrelling of the accused and his wife. The other witnesses produced by the prosecution to support this version, are PW 9 Gaina Ram and PW 14 Sadula. The other witnesses produced by the prosecution to support this version, are PW 9 Gaina Ram and PW 14 Sadula. PW 5 Smt. Kannu has stated that on the fateful night, she along with her sister-in-law (Deorani) had gone to make water out-side their house and heard the voice of accused Kheraj Ram saying his wife that she had spent the money upon her friends and the children were not born from his loin and the accused was, also, hurling abuses to his wife. The words heard by this witness and given in her statement are as under :-IN cross-examination, this witness has stated that the distance between the place where they were passing and the house of the accused is in between 200 to 250 Paundas. This distance comes to about 1000 to 1500 feet. She has, also, admitted in the cross-examination that her statement was recorded after three days of the incident but the record shows that her statement under Section 161, Cr. P. C. , was recorded on 11-10-92. In cross-examination, she has, also, admitted that the family of Kheraj Ram always used to live with him. In cross-examination, she has, also, admitted that the fact that the accused told to his wife that she had spent all his money in entertaining her friends, does not find mention in her earlier statement Ex. D2, though she stated so the investigating officer. PW 6 Smt. Veeru has stated that she, along with her sister-in-law (Jethani) PW 5 Smt. Kannu, had gone to make water in the night in the compound of her Dhani and heard the voice of accused Kheraj Ram, who was saying to his wife Smt. Amru that she was a lady of easy virtues and wherefrom she had brought the children and was saying that these children were from the loin of her friends and told her to leave the house in the morning otherwise he would cut her in to the pieces. The exact words narrated by this witness are as under :-In the cross-examination, this witness has admitted that the Dhani of the accused is situated at a distance of about two to three Bighas from the place where she and her Jethani were passing. The exact words narrated by this witness are as under :-In the cross-examination, this witness has admitted that the Dhani of the accused is situated at a distance of about two to three Bighas from the place where she and her Jethani were passing. According to her, Kheraj Ram is/was an employee in Railway and he kept his family with him and had come to the village alongwith his family only on Friday. Kesi and Meera used to live in the Dhani alongwith Achla Ram and they used to graze their cattle and Achla used to look-after the house. She has further stated that her statement was recorded by the police after twelve days of the occurrence. These two witnesses had heard the voice of accused Kheraj Ram from a distance of about 1000 to 1500 feet. The talks/quarrel were going-on between accused Kheraj Ram and his wife Smt. Amru and it was not expected that the husband will speak in such a loud voice that these witnesses could have heard the same from such a distance of 1000 to 1500 feet. Both these witnesses have given different version regarding the exact words used by the accused while scolding or rebuking his wife on the fateful night. Moreover, there is an improvement in her statement in Court from the statement given earlier and introduced the story that the accused was saying to his wife that she had spent the money on her friends. The statements of these witnesses are, also, inconsist with the statement given by each other. Moreover, PW 7 Smt. Saro - the mother of deceased Smt. Amru - has not supported the prosecution case on this point. She has stated that she never saw the accused and deceased Smt. Amru quarreling and according to her they were living peacefully and the deceased never made any complaint whatsoever against her husband (the accused) that he was not keeping her well. The mother of a lady is the first person to whom such complaints can be made by the lady regarding the mal-treatment, etc. , of her husband, but the same was not made in the present case. The mother of a lady is the first person to whom such complaints can be made by the lady regarding the mal-treatment, etc. , of her husband, but the same was not made in the present case. PW 8 Kumbha - a neighbour of the accused - who came at the scene of the occurrence immediately after the occurrence when he was called, also, stated that he never heard about the strained relations between the accused and his wife and the accused had good relations with his in-laws and never said anything wrong to his wife. All the witnesses, produced by the prosecution, have, also, admitted that the accused-appellant used to keep his family with him and throughout the family members remained with him. When the relations between the accused-appellant and his wife deceased Smt. Amru were cordial, the wife and the children used to live with the appellant then there appears to be no question of doubting the virtues of the wife by the appellant. It appears that this story has been concocted later on by the prosecution in order to fasten the accused with the crime. The other witness produced by the prosecution to show the strained relations between the accused and his wife, is PW 9 Gaina Ram. He has only stated that Kheraj Raj and his wife used to quarrel and the accused used to blame his wife by asking wherefrom she had brought the children and she should leave the house. He has further stated that Smt. Kanu and Smt. Veeru had disclosed to him that on the previous night they heard the voice of quarrelling of the accused and his wife. This witness has admitted in the cross-examination that the wife and the children of the accused used to live with the accused; in the rainy season the children used to live in the village and in the summer, they used to live with the accused. The evidence of this witness does not find support from the statement of the mother of deceased Smt. Amru or her brother PW 11 Poonma Ram. He has, also, not disclosed that he had any personal knowledge and reliable information regarding the strained relations between the accused and his wife Smt. Amru. His evidence, on this point, does not inspire confidence. The learned Additional Sessions Judge was, therefore, not justified in believing this circumstance against the accused-appellant. He has, also, not disclosed that he had any personal knowledge and reliable information regarding the strained relations between the accused and his wife Smt. Amru. His evidence, on this point, does not inspire confidence. The learned Additional Sessions Judge was, therefore, not justified in believing this circumstance against the accused-appellant. ( 6 ) THE next circumstance relied upon by the prosecution and believed by the learned trial Court is that the accused gave false story to PW 9 Gaina Ram after the incident regarding the commission of the crime by some unknown person. The accused, after the incident, informed PW 9 Gaina Ram that somebody had killed Smt. Amru, Achla Ram and his two daughters Meera and Kesi and inflicted injuries to him, also. The accused had injuries on his person, which is clear from the statement of PW 13 Dr. Davendra Singh Choudhary, who examined the injuries of the accused after his arrest on 23-10-92 and found five injuries on his person. PW 7 Smt. Saro has admitted in the cross-examination that the police was tracing the foot-prints and they had disclosed to this witness that Smt. Amru has been killed by someone and they were tracing the foot-prints. PW 9 Gaina Ram has, also, admitted that in the morning they followed the foot-prints of one person who had gone towards the Northern side of the Dhani of Achla and he cannot say that these foot-prints were of whom because he is not a tracer. PW 14 Poona Ram has, also, admitted that the police, along with Chimanji, came to his house following the foot-prints. PW 18 Jagga Ram - the investigating officer - has, also, admitted that he had followed the foot-prints. When the foot-prints were available there and the police tried to trace those foot-prints, it is surprising to note that the investigating officer did not take the moulds of the foot-prints in order to establish conclusively the identity of perpetrator of the crime. From the facts and circumstances of the case and the evidence produced by the prosecution, it is, therefore, clearly established that the accused did not try to give any false explanation, rather, on the other hand, the investigating officer did not properly conduct the investigation and rest contended with implicating the accused with the crime instead of making an impartial investigation. The accused himself had injuries on his person and the same have been proved by PW 13 Dr. Davendra Singh Choudhary and, therefore, it cannot be said that the version given by the accused was false. The learned Additional Sessions Judge was, therefore, not justified in relying upon this circumstance against the accused-appellant. ( 7 ) THE next circumstance relied upon by the prosecution and believed by the learned trial Court is the abnormal conduct of the accused in smoking the Chilam. Different person act in a different manner in a particular circumstance and it cannot be said with uniformity that all the persons should act in a particular manner. Moreover, the conduct of the accused in smoking the Chilam at that time cannot be said to be abnormal. The other witnesses were present there. He had seen four of his family members lying murdered in the house and if he, by that time, was found smoking the Chilam then this conduct cannot be said to be abnormal. The learned trial Court gave undue significance to this circumstance. Nothing abnormal was there in smoking Chilam by the accused. This circumstance is, therefore, of no avail to the prosecution and does not fasten the accused-appellant with the crime. ( 8 ) THE next circumstance relied upon by the prosecution and believed by the learned trial Court is the last seen of the accused-appellant in the company of the deceased persons. The accused-appellant and the deceased used to live in that house. They were sleeping in the house in the night and somebody came in the night and committed the murder of the deceased and, also, caused injuries to accused Kheraj Ram. Kheraj Ram, immediately thereafter, went to Gaina Ram, informed him of the incident and called the other neighbourers, also. The presence of the accused-appellant at his house was most natural and this circumstance, in the facts and circumstances of the case, cannot adversely affect the appellant and does not connect him with the crime, particularly when the accused-appellant himself has received injuries in the incident. Even if this circumstance is believed against the accused still it raises a suspicion and the suspicion cannot take place of the proof, particularly when the accused-appellant himself has received injuries in this incident. Even if this circumstance is believed against the accused still it raises a suspicion and the suspicion cannot take place of the proof, particularly when the accused-appellant himself has received injuries in this incident. The injuries received on the person of the accused cannot be said to be self-inflicted and he received these injuries during the incident. ( 9 ) THE next circumstance relied upon by the prosecution and believed by the learned trial Court is the extra-judicial confession made by accused-appellant Kheraj Ram before PW 12 Simratha Ram. The evidence of extra-judicial confession, though a weak type of evidence but it can form the basis for conviction if the confession made by the accused is voluntary, true and trustworthy. It can be acted upon if the evidence of the person, before him the extra-judicial confession has been made by the accused, inspires confidence. In the present case PW 12 Simratha Ram, before whom the alleged extra-judicial confession has been made by the accused, is neither the relative of the accused nor he has any intimate relations with the accused and, therefore, there was no question of making a clean-breast of the guilt by the accused before this witness. Even according to this witness, the disclosure was made by the accused to him on 10-10-92 by taking him aside while he was talking with Gaina, Sadula, Achla and other persons. None of these witnesses have supported this part of the statement of PW 12 Simratha Ram that the accused was taken in confidence by PW 12 Simratha Ram and was taken aside by the accused while Simratha Ram talking with them. Moreover, the disclosure was made by the accused to him on 10-10-92 while the police and other witnesses were present there. He did not disclose the fact of making extra-judicial confession by the accused to any of these persons. He has, however, stated that this fact was disclosed by him to the investigating officer but PW 18 Jagga Ram - the investigating officer - denied this fact. PW 18 Jagga Ram has stated that for the first time he came to know regarding the extra-judicial confession made by the accused to PW 12 Simratha Ram when an information under Section 27 of the Indian Evidence Act was given by the accused to him and thereafter he recorded the statement of PW 12 Simratha Ram on 24-10-92. PW 18 Jagga Ram has stated that for the first time he came to know regarding the extra-judicial confession made by the accused to PW 12 Simratha Ram when an information under Section 27 of the Indian Evidence Act was given by the accused to him and thereafter he recorded the statement of PW 12 Simratha Ram on 24-10-92. The fact that the accused committed the murder of the aforesaid four persons, was already disclosed to the investigating officer and, therefore, the things which have already been disclosed, cannot be said to have discovered in pursuance to the information given under Section 27 of the Indian Evidence Act. According to PW 12 Simratha Ram, the disclosure was made to him by the accused on 10-10-92 and he stated so to the investigating officer PW 18 Jagga Ram on the same day, but his statement was recorded by the investigating officer after fourteen days of his alleged disclosure made to the investigating officer. PW 12 Simratha Ram was not a man of influence and he could not have helped the accused in any way. He was neither close relative to the accused nor had he any intimacy with the accused so as to make clean-breast by the accused to him. In these facts and circumstances, we are of the opinion that the evidence of extra-judicial confession relied upon by the prosecution and believed by the learned trial Court, does not inspire confidence. This circumstance, in our view, was wrongly believed by the learned trial Court. ( 10 ) THE last circumstance relied upon by the prosecution and believed by the learned trial Court is the recoveries of the Jooti of Achla, the blood-stained Dhoti of the accused and the recovery of the Kulhari - the weapon of the offence - on the information and at the instance of the accused-appellant. So far as the recovery of the Jooti of Achla on the information and at the instance of the accused is concerned, that is of no consequence because as per the prosecution case, the accused, after wearing the Jootis of Achala, went to his mother-in-laws house and then returned to his Dhani. There was no necessity with the accused to do so. Moreover, the jooti does not connect the accused with the crime in any way. There was no necessity with the accused to do so. Moreover, the jooti does not connect the accused with the crime in any way. So far as the recovery of the blood-stained Dhoti of the accused is concerned, that contained the human-blood but the group of the blood could not be detected as the blood found on the Dhoti was disintegrated. Even as per t he prosecution case, the accused had injuries on his person when he was examined after his arrest by PW 13 Dr. Davendra Singh Choudhary. The blood found on the Dhoti of the accused could be of his own and unless it is conclusively established that the blood found on the clothes of the accused was that of the deceased, this circumstance cannot be read against the accused because it could be the blood of the accused oozed out from the injuries found on his person. The recovery of these two articles and the recovery of the Kulhari, also, suffer from other infirmities, also, because the Dhani of the accused-appellant was open since the date of the incident, i. e. , 10-10-92. It has come in the evidence that the police visited the Dhani of the accused twice and made the search of the Dhani but nothing incriminating could be found. When twice the search of the Dhani were made and nothing incriminating was found then how, after the lapse of ten to twelve days when the accused was not present in his Dhani, these incriminating articles were recovered from there on his alleged information and at his instance. Though PW 18 Jagga Ram has stated that he arrested the accused-appellant on 22-10-92 and the accused gave an information under Section 27 of the Indian Evidence Act to him but the statement of this witness does not find corroboration from the evidence of PW 4 Narain Singh. PW 4 Narain Singh, who is a witness to the arrest of the accused on 22-10-92, has stated that when the accused was arrested, he was called at the Police Station from the taxi-stand and when he reached there, accused Kheraj Ram was found handcuffed in the police station. The arrest of the accused was, therefore, not made in his presence as is clear from the evidence of PW 4 Narain Singh. The arrest of the accused was, therefore, not made in his presence as is clear from the evidence of PW 4 Narain Singh. The arrest of the accused on 22-10-92, is, also, not supported by the evidence of other independent witnesses as well as this witness, who disclosed that the accused was arrested on 10-10-92, i. e. , the same day of the incident. PW 1 Daula Ram has stated that the police arrested the accused on the same day and after two days of his arrest, the police again brought Kheraj Ram to his Dhani and since then he is in custody. He has, also, stated that the police searched the Dhani of the accused on the next day of the incident. PW 9 Gaina Ram has stated that the dead bodies of Smt. Amru, Meera and Kesi were handed-over to him and Sadula because accused Kheraj Ram was arrested by the police. PW 10 Kharta Ram has stated that when the cremations of Smt. Amru, Meera and Kesi took place, at that time accused Kheraj Ram was not present there because the police had arrested him. PW 12 Simratha Ram has, also, stated that accused Kheraj was arrested by the police on 10-10-92. PW 14 Sadula has stated that the dead bodies were not handed over to Kheraj Ram as the police had arrested the accused. He has, also, stated that in the morning, as soon as the police came, accused Kheraj Ram was asked to sit there and in the evening the police took him to the Police Station. PW 18 Jagga Ram - the investigating officer - was confronted with this fact that the accused was arrested on 10-10-92 and not on 22-10-92, and he denied this fact but the statement of this witness, viz. , PW 18 Jagga Ram that the accused was arrested on 22-10-92 and not on 10-10-92, does not inspire confidence in view of the evidence of the prosecution witnesses, viz. , PW 9 Gaina Ram, PW 10 Kharta Ram, PW 12 Simratha Ram and PW 14 Sadula Ram. When the accused had already been arrested on 10-10-92 and was not living in the Dhani during this period and the Dhani remained opened and the police had searched the Dhani twice - first on 10-10-92 and thereafter before 22-10-92 but nothing incriminating article was found there. When the accused had already been arrested on 10-10-92 and was not living in the Dhani during this period and the Dhani remained opened and the police had searched the Dhani twice - first on 10-10-92 and thereafter before 22-10-92 but nothing incriminating article was found there. These recoveries, therefore, do not inspire confidence and this circumstance, also, cannot he read against the accused. ( 11 ) THE prosecution has, therefore, failed to establish the case against accused-appellant Kheraj Ram and the circumstances relied upon by the prosecution and believed by the learned trial Court are not substantially established against him from the evidence produced by the prosecution and on the basis of these evidence, it is hazardous to convict the accused-appellant and confirm the sentence of death imposed by the learned trial Court. ( 12 ) IN the result, the appeal, filed by accused-appellant Kheraj Ram, is allowed. The conviction of the accused-appellant on all the counts is, therefore, set-aside. The sentence of death imposed against the accused-appellant by the learned trial Court and sent for confirmation, is not confirmed and Kheraj Ram is acquitted of all the charges levelled against him and the reference made by the learned trial Court is rejected. The accused-appellant is in jail. He may be released forthwith if not required in any other case. Appeal allowed.