DHAN SINGH v. STATE OF RAJASTHAN — 1995 DIGILAW 631 (RAJ)

Judgment B. R. ARORA, J. ( 1 ) THIS appeal is directed against the judgment dated 30-4-90, passed by the Sessions Judge, Merta, by which the learned Sessions Judge convicted the appellant for the offences under Secs. 302, 201 and 404 IPC and sentenced him to undergo imprisonment for life and a fine of Rs. 5000/- and in default of payment of fine further to undergo two years rigorous imprisonment for the offence under Sec. 302 IPC, five years rigorous imprisonment and a fine of Rs. 1000/- and in default of payment of fine further to undergo one monthts rigorous imprisonment for the offence under Sec. 201 IPC and two years rigorous imprisonment and a fine of Rs. 500/- and in default of payment of fine further to undergo fifteen days rigorous imprisonment for the offence under Section 404 IPC. ( 2 ) APPELLANT Dhan Singh was tried by the learned Sessions Judge, Merta, for the offence under Secs. 302,201 and 404 IPC. The case of the prosecution is that Kaliyan Singh and his brother Udai Singh (deceased) R/o Shea had gone to cotan on 18-10-87. In the evening, Kaliyan Singh left Gotan for his village Sheo and before leaving Gotan, asked his brother Udai Singh to accompany him, whereupon Udai Singh replied that he would come with Dhan Singh on his cart. Kaliyan Singh came to his village leaving Udai Singh in the company of accused Dhein Singh. At that time Udai Singh was having the sale-price of the gun which he sold a day earlier. On 19-10-87, at about 4. 00 p. m. , when Dhan Singh met him, he enquired him about his brother Udai Singh, to which Dhan Singh showed his ignorance. On 20-10-87, at about 8. 00/9. 00 a. m. , Kaliyan Singh went to Gotan and went to the hotel of Satya Narain, where Satya Narain the owner of the hotel, informed him that accused Dhan Singh on 18-10-1987 informed him that a murder has been committed by him and asked him to give a jute bag, to which he refused but later on it as revealed that he had taken the jute bag. . He suspected that Dhan Singh might have committed the murder of Udai Singh. . He suspected that Dhan Singh might have committed the murder of Udai Singh. Kaliyan Singh thereafter left the hotel and in Gotan town he heard the news that for the way between Gotan and Sheo, in the mules, a dead body has been found in a jute bag. He went at the place of the occurrence and saw the dead body of his brother Udai Singh. The report of this incident was lodged by Kallyan Singh (the brother of deceased Udai Singh) at Police Station, Merta Road on 20. 10. 1987. An entry in the Roznamcha was also made at Police Station, Merta, on 20-10-1987 at 11. 30 a. m. on the wireless message received from Banshi Lal i. e. that in the mines, near Kaccha route which leads from Gotan to Sheo, a dead body was found tied in a jute bag. The Station House Officer, after making entry in the Roznamcha, proceeded towards the place of the incident. The police, after necessary investigation, presented the challan against the accused-appellant. The prosecution in support of its case, examined eighteen witnesses. The learned Sessions Judge, after trial, convicted and sentenced the accused-appellant as stated above. ( 3 ) THE nature of the evidence, produced by the prosecution, consists of the statements of PW 1 Thana Ram, PW 2 Narpat Singh, PW 5 Bheem Singh, PW 6 Mangi Lal and PW 12 Kaliyan Singh, who had last seen the accused in the company of the deceased and thereafter the dead body of Udai Singh was found in the mines. This evidence of last seen is sought to be corroborated by the evidence of extrajudicial confession made by the accused-appellant before PW 6 Mangi Lal, PW 7 Govind and PW 13 Satya Narain. The evidence of last seen and that if extra-judicial confession made by the accused are further sought to be corroborated by the recoveries of the clothes of the accused, his juti and the purse and Khudiya of the deceased made from the accused on his information and at his instance, PW 9 Keshu Dan, PW 10 Loomba Ram, PW 14 Han Singh and PW 16 Dalla Ram are the Motbir witnesses to the recoveries and the preparation of site plan etc. PW 11 Satya Narain, who was a witness to the purchase of the jute bag by the accused, has not supported the prosecution case and has been declared hostile. PW 15 Dr. Prithvi Singh was the Medical Officer, Primary Health Centre, Gotan, who conducted the autopsy on the dead body of Udai Singh and the remaining are the police witnesses, who are connected with the investigation. ( 4 ) THE contention of the learned counsel for the appellant is that the evidence, produced by the prosecution, does not inspire confidence and the prosecution has failed to prove the case against the appellant. The evidence of last seen as well as that of extra-judicial confession allegedly made by the accused before the witnesses do not inspire confidence and the recoveries of the Dhoti, Bushirt and Jooti of the accused, also, do not connect the appellant with the crime as the blood group found on these articles could not be determined as it had disintegrated and so far as recoveries of the purse and Khudiya are concerned, they, also, do not inspire confidence. The learned Public Prosecutor, on the other hand, as supported the judgment passed by the Court below and submitted that the prosecution has been able to prove the case against the accused beyond reasonable manner of doubt and the circumstances, relied upon by the prosecution and believed by the learned trial Court clearly establish that the appellant is the perpetrator of the crime. ( 5 ) WE have considered the submissions made by the learned counsel for the parties. There is no eye witness to the occurrence and the prosecution case mainly rests upon the evidence of last seen of the accused in the company of the deceased, the extra-judicial confession made by the accused before the witnesses and the recoveries made from the accused-appellant on his information and at his instance. ( 6 ) THE first circumstance believed by the learned trial Court is the last seen of the accused in the company of the deceased. To prove this circumstance, the prosecution has produced five witnesses, viz. , PW 1 Thana Ram, PW 2 Narpat Singh, PW 5 Bheem Singh, PW 6 Mangi Lal and PW 12 Kaliyan Singh. The learned trial Court did not believe. To prove this circumstance, the prosecution has produced five witnesses, viz. , PW 1 Thana Ram, PW 2 Narpat Singh, PW 5 Bheem Singh, PW 6 Mangi Lal and PW 12 Kaliyan Singh. The learned trial Court did not believe. PW 1 Thana Ram, PW 2 Narpat Singh and PW 5 Bheem Singh and relied upon the statements of PW 6 Mangi Lal and PW 12 Kaliyan Singh on this aspect. PW 1 Thana Ram has stated that about eight to ten months before, at about 8. 00 a. m. , he had gone to Gotan and returned in the evening at about 7. 00/7. 15 p. m. When he was going on the road from Sheo to his Dhani, near the Railway Station, Gotan, he saw accused Dhan Singh and deceased Udai Singh going together and he wished them and asked Dhan Singh, let us go towards the village. Dhan Singh replied that he will come after sometime. Thereafter both of them went towards the side of mines and he went towards his Dhani. Third day he heard that Udai Singh has been murdered. He has admitted in the cross-examination that he did not narrate the incident to anybody though number of persons met him. He did not state this fact to Kaliyan Singh though he came to know about the death of Udai Singh on 20th and he went to village Sheo, also. Even when the police came for investigation he was present in the village and had seen the place of the occurrence but he did not inform any person regarding his seeing the accused in the company of the deceased. He has also admitted that he did not disclose to the police regarding his seeing the deceased in the company of the accused and for the first time he stated so in the Court (but the record shows that his statement was recorded on 7-11-87, i. e. , after about 19 days and no reasons have been given by the investigating officer why his statement could not be recorded earlier ). This witness, though had seen the accused in the company of the deceased and saw the police in the village and he himself came to the place of the incident when the police came there but did to disclose his seeing the accused in the company of the deceased nor it was said by him to any person of the village and for the first time he stated so in the trial Court. Therefore, the evidence of this witness that he had seen the accused in the company of the released does not inspire confidence and the learned trial Court rightly disbelieved the evidence of this witness. PW 2 Narpat Singh has stated that on 18-10-1987 while he was going from village Sheo to Merta on a tractor, he saw accused Dhan Singh and deceased Udai Singh going on the Pagdandi. In the cross-examination, he admitted that he did not ask them to come on the tractor and why they were going on foot as they were going on the Pagdandi. He has, however, admitted that the Pagdandi, on which the accused and the deceased were going, is a shorter way. This witness was, for the first time examined by the police on 7-11-87 and no satisfactory explanation has come on record why his statement could not be recorded earlier th9ugh he was present in the village. The other witness on this point is PW 5 Bheem Singh, who has stated that on 18-10-1987, he had gone to village Sheo and at about 8. 00/8. 30 a. m. , he was standing near the tractor of Narpat Singh in the Gawad of Narpat Singh. Den Karan, Budha Ram and Narpat Singh were also present there. Dhan Singh and Udai Singh came there and they proceeded towards Gotan on foot and sometime thereafter they also left the place for Merta City. In the way, near Sambhar Nadi, Udai Singh and Dhan Singh met them going on a Pagdandi, which leads towards the mines. In the cross-examination he has stated that he did not ask them to come on the tractor and why they were going on that way. The police recorded his statement after fifteen to twenty days. In the way, near Sambhar Nadi, Udai Singh and Dhan Singh met them going on a Pagdandi, which leads towards the mines. In the cross-examination he has stated that he did not ask them to come on the tractor and why they were going on that way. The police recorded his statement after fifteen to twenty days. Though he came to know regarding the death of Udai Singh after four-five days but he I did not make the disclosure of the last seen of the accused in the company of the deceased to the police or any other person as, according to, him, nobody enquired from him. These witnesses have also made several improvements from their earlier statement and did not disclose to anyone that they had seen the accused. in the company of the deceased. Moreover the statements of these witnesses show that they had seen the accused in the company of the deceased in the morning while they were going from Sheo to Gotan and not in the evening while returning. The evidence of both these witnesses is also inconsistent with the prosecution case. According to the case of the prosecution the accused was last seen in the company of the deceased in the evening when they were returning from Gotan while these witnesses have stated that they saw the accused and the deceased going toward Gotan and several other persons had seen the accused and deceased at Gotan and, therefore, the evidence of these two witnesses, on the question of last seen, does not inspire confidence. The learned Sessions Judge rightly disbelieved their evidence. The appreciation of the evidence, made by the learned trial Court in discarding the evidence of these two eye witnesses, cannot be said to be, in any way, arbitrary, unjust or improper. ( 7 ) THE next evidence regarding last seen of the accused in the company of the deceased is that of PW 6 Mangi Lal. He is a witness to the last seen of the accused in the company of the deceased as well as making of extra-judicial confession by the accused before him. He has stated that two-three days before Deepawali, at about 6. 00/6. 30 p. m. , he was sitting at the Bus Stand, Gotan. Accused Dhan Singh and deceased Udai Singh came there. He has stated that two-three days before Deepawali, at about 6. 00/6. 30 p. m. , he was sitting at the Bus Stand, Gotan. Accused Dhan Singh and deceased Udai Singh came there. Udai Singh asked him to go to the village whereupon he said that the tyre of his cart has punctured and, therefore, he will not go to the village. Dhan Singh then asked Udai Singh to accompany him. Both of them then proceeded towards village Sheo and they remained there and went to see Rulli Leela and in the night, at about 12. 00/12. 30 a. m. he came to the hotel of Satya Narain where Dhan Singh met him. Satya Naraints hotel was closed at that time. He enquired from Dhan Singh why he had not gone to the village, whereupon Dhan Singh told that he had some work in Gotan and, therefore, he came back. Thereafter Dhan Singh asked him that he had some work with him and took him towards the road which leads to Sheo and when, they went near the mines, he enquired from Dhan Singh where he was taking him, whereupon the accused informed that he has committed the murder of Udai Singh and has thrown his dead body in the mines and requested him for help in disposing or the dead body and offered him Rs. 1000/for this work. He became scared and returned back to Gotan and informed Satya Narain regarding the incident, Satya Narain told him that the accused is a drunkard and has falsely stated so. This witness did not inform the police regarding the extrajudicial confession made by the accused before this witness. He did not inform even Kaliyan Singh and Narpat Singh regarding the incident. This witness has neither any relation with the accused nor he was in a position to help the accused in any way. He was neither the Panch, Sarpanch or an influential person of the village and had no intimacy with the accused and, therefore, it was not expected from the accused to have made the disclosure of his crime to this witness. As per this witness, the disclosure was made by the accused to him on 18-10-87 but he did not tell this fact to the police till 21-10-87. As per this witness, the disclosure was made by the accused to him on 18-10-87 but he did not tell this fact to the police till 21-10-87. This witness, though came to know regarding the murder of Udai Singh by the accused as the accused allegedly made confession before him but still he did not inform any member of the family of the deceased, namely Kaliyan Singh or Narpat Singh nor he informed the police. In the cross-examination this witness has stated that on that day Dhan Singh had no cart with him. He has also admitted that though he stated to the police that Dhan Singh took Udai Singh with him but this fact has not been mentioned in his earlier statement Ex. D. 3. We have gone through the statement of this witness and as discussed above, we are of the opinion that the evidence of this witness also does not inspire confidence and the accused could not have reposed any confidence in this witness to have made the disclosure of the commission of murder by him. This witness was not in a position to help the accused in any way nor he had any intimate relation or family relation with the accused. The evidence of this witness, therefore, does not inspire confidence. We are, therefore, of the opinion that neither this witness has last seen the accused in the company of the deceased nor any extra-judicial confession was made by the accused before this witness. The last witness produced by the prosecution, who had last seen the accused in the company of the deceased, is PW 12 Kaliyan Singh the brother of deceased Udai Singh. He has stated that 1- 112 to 1-3/4 months before, his brother Udai Singh had gone to Gotah and he also went to Gotan, where Indra Singh met them and in the evening, at about 4. 00 p. m. while he was returning to his village he asked his brother Udai Singh to accompany him whereupon Udai Singh told that he would come with Dhan Singh on his Cart. Dhan Singh was also with him. Udai Singh, on that day, had some money with him which he got by way of selling the gun to Garib Ram Jat of Kuchera. Next day, accused Dhan Singh met him at about 4. Dhan Singh was also with him. Udai Singh, on that day, had some money with him which he got by way of selling the gun to Garib Ram Jat of Kuchera. Next day, accused Dhan Singh met him at about 4. 00 p. m. and he enquired from him regarding the whereabouts of Udai Singh, to which Dhan Singh showed his ignorance. Next day, he went to Gotan at about 8. 00 a. m. and Satya Narain the Owner of the hotel - informed him that accused Dhan Singh came to him and demanded a jute bag and on enquiry that what he would do of the jute bag, Dhan Singh informed that he has murdered a close person. He suspected that his brother might have been killed. In the village, he heard the news that a dead body has been recovered in a jute bag in the mines. He went to the mines and recognized the corpse to be that of his brother Udai Singh. He lodged the report at the Police Station. The report was registered and the police came at the scene of the occurrence and various memos were prepared and the recoveries were made. In the cross examination he has admitted that Udai Singh used to visit-Dhan Singh and his brother as he had good relations with them. In the cross examination, he has also admitted that in the report Ex. P. 1 he has not specifically disclosed that Udai Singh and Dhan Singh were together. He has also not disclosed in the FIR that Dhan Singh has admitted that a murder of close-relative has been committed by him. He has also admitted that he did not make any enquiry in the village regarding the return of the deceased in the next day. He has also admitted that though he came to know regarding the absence of the deceased in the village on the next day but he did not make any enquiry from the accused and went to Gotan. According to other witnesses, the deceased and the accused left Gotan at about 6. 30/ 7. 00 p. m. while this witness left Gotan at about 4. 00 p. m. After leaving Kaliyan Singh at about 4. 00 p. m. the deceased was seen by the witnesses in Gotan itself. In Ex. According to other witnesses, the deceased and the accused left Gotan at about 6. 30/ 7. 00 p. m. while this witness left Gotan at about 4. 00 p. m. After leaving Kaliyan Singh at about 4. 00 p. m. the deceased was seen by the witnesses in Gotan itself. In Ex. D. 1 he has not disclosed that he was Udai Singh in the company of the accused-appellant. The version given in the FIR is that Udai Singh informed him that he will come with accused Dhan Singh. This witness has, therefore, not seen the accused in the company of the deceased when he left Gotan and it was only on the asking of the deceased that he will come with the accused, he has stated so. He has made some improvement on this point from his earlier statement. When confronted, he stated that he stated so to the police. After carefully going through the evidence of this witness, we are of the opinion that this witness has actually not seen the accused in the company of the deceased when he left Gotan. The evidence of this witness also does not inspire confidence. We are, therefore, of the opinion that the prosecution has failed to prove is circumstance of last seen of the accused in the company of the deceased. ( 8 ) THE next circumstance believed by the learned trial Court is the extra-judicial confession made by the accused before PW 6 Mangi Lal, PW 7 Govind and PW 13 Satya Narain. We have diseased above the evidence of PW 6 Mangi Lal while discussing his evidence on the point of last seen of the accused in the company of the deceased and we have come to the conclusion that the evidence of this witness is not reliable either on the point of last seen of the accused in the company of the deceased or making of extra-judicial confession by the accused before this witness. As such it is not necessary to discuss his evidence on the point of extra-judicial confession again and sufficient it to say that the evidence of this witness does not inspire confidence on the point of extrajudicial confession also. ( 9 ) THE next witness produced by the prosecution to prove extra-judicial confession is PW 7 Govind, who is the real brother of PW 6 Mangi Lal. ( 9 ) THE next witness produced by the prosecution to prove extra-judicial confession is PW 7 Govind, who is the real brother of PW 6 Mangi Lal. This witness has stated that two three days before Deepawali of last year he was doing white wash work in the house of Suja Ram in village Gotan. At about 9. 00 p. m. the accused came to him in the hotel of Satya Narain and asked him to go to the village. He accompanied the accused. In the way accused Dhan Singh asked him that he required one jute bag (Bori) and they purchased one jute bag from the son-in-law of Ram Prasad. Dhan Singh, at that time, had sufficient money. After purchasing the bag they proceeded towards the village and in the way Dhan Singh offered him a Bin and asked him that he had a work with him and disclosed to him that he has murdered Udai Singh and requested him for help. Dhan Singh, at that time, was having an empty bag and asked him to help him in carrying the dead body and offered him Rs. 500/-, He did not see the dead body and being scared, proceeded towards Gotan. The accused followed him and came to Gotan. Thereafter he did not see the accused in Gotan. He went to Railway Station and slept there. This witness did not disclose the making of extra-judicial confession by the accused before him either to the police or to any other villager or the relative of the deceased and the explanation given by him is that he did not believe the accused as he was in a drunken state at that time. For three days after the disclosure by the accused to this witness he kept mum and disclosed the commission of the crime by the accused for the first time to the police on 21-10-1987. Though this witness went to village next day in the morning and met Kaliyan Singh, Narpat Singh and other family members of the deceased as well as to the other villagers but he did not inform anybody regarding the Commission of the crime by the accused and his making the extra-judicial confession before this witness. He has also admitted that he had closeness with the accused and on the relevant day they had no talk. He has also admitted that he had closeness with the accused and on the relevant day they had no talk. This witness is not related to the accused nor he is a friend to the accused or having any intimate relations with the accused. He was not in a position to help the accused. He is not a man of sound status or influence nor he is related to the accused, on whom the accused could have reposed confidence. Further after going through the evidence of this witness and close scrutiny thereof, we are of the opinion that there was no probability of making any disclosure by the accused before this witness. We are of the opinion that the evidence of this witness does not inspire confidence so far as making of extra-judicial confession by the accused before him is concerned. ( 10 ) THE next witness produced by the prosecution to prove extra-judicial confession is PW 12 Satya Narain the owner of the hotel. He has stated that he runs a tea stall at the bus stand. In the month of Kartik of last year, the accused came to his hotel at about 9. 00 p. m. At that time he was in a complete drunken state. The accused asked him to give him a jute bag but he told that he had no such bag with him and enquired what he would do with the jute bag and then the accused disclosed that he has committed a mistake. He refused to give bag to the accused and thereafter the accused went away. Accused Dhan Singh informed him that he had committed the murder of Udai Singh. This witness, in the cross-examination has admitted that he had no talks with the, other customers though four-five persons were sitting there. He has also admitted that except Kaliyan Singh he did not had any talk with any person. He did not disclose this fact to the other villagers because he did not rely on the accused as he was in a drunken state at that time, he has also admitted that in the statement Ex. D. 6 it has not been mentioned that the accused came to his hotel and at that time he was drunken. He did not disclose this fact to the other villagers because he did not rely on the accused as he was in a drunken state at that time, he has also admitted that in the statement Ex. D. 6 it has not been mentioned that the accused came to his hotel and at that time he was drunken. When he was confronted with this infirmity, he stated that he said so to the police but why it has not been written in his earlier statement, he cannot say. n his statement Ex. D, 6. iihasnot been mentioned that the accused disclose before him that he has committed the murder of Udai Singh. When confronted, he stated that he said so to the police. This witness did not informed to the police or any member of the family of the deceased regarding the commission of the murder of Udai Singh by the accused till the recovery of the dead body and registration of the FIR and kept mum. Even in the earlier version he has only stated that the accused made a disclosure to him that he has committed the murder of some close relative but did not disclose the name of the victim. PW 12 Kaliyan Singh, to whom this witness disclosed this fact, has also stated that on the next day Satya Narain told him that Dhan Singh came to him and demanded a jute bag, to which he refused and enquired what he would do with it and thereupon Dhan Singh informed him that he has committed the murder of his family member but the name of the deceased was not disclosed by this witness to him. This witness has made improvement from his earlier statement. He was neither related to the accused nor was an influential person to help the accused in any way and as such the accused could not have reposed confidence in this witness. We are of the opinion that the evidence of this witness, relating to alleged extrajudicial confession made by the accused before this witness, does not inspire confidence. ( 11 ) FROM the above discussion, it is clear that the prosecution has failed to establish the circumstance of extra-judicial confession allegedly made by the accused before the aforesaid witnesses. Extra-judicial confession can form the basis of conviction provided it is true, voluntary and free from suspicion. ( 11 ) FROM the above discussion, it is clear that the prosecution has failed to establish the circumstance of extra-judicial confession allegedly made by the accused before the aforesaid witnesses. Extra-judicial confession can form the basis of conviction provided it is true, voluntary and free from suspicion. The evidence of extra-judicial confession is admissible in evidence because it emanates from the person who has committed the crime. But the present is not the case where the alleged extrajudicial confession can be said to be true, voluntary or free from doubt as the witnesses produced by the prosecution does not inspire confidence and they have not been believed by us. ( 12 ) THE next circumstance, relied upon by the prosecution and believed by the learned trial Court against the appellant is the recoveries of the Dhoti, Bushirt and Jutti of the accused, stained with blood, on the information and at the instance of the accused-appellant and the purse and Pudiya of the deceased on the information and at the instance of the accused-appellant. The prosecution has not been able to conclusively establish that human blood found on these articles were of the same group which was the blood group of the accused. The link evidence in this regard is also missing. The Incharge of the Malkhana of the Police Station has not been produced to approve that the seals on these articles remained intact throughout i. e. from the date of their seizure and sealing till they reached for FSL Examination to the State Forensic Science laboratory Jaipur. The recoveries of the purse and Pudiya belonging to the deceased, on the information and at the instance of the accused suffers from some infirmities and the link evidence to this effect is also missing. Even otherwise merely on the basis of the recoveries of these articles the appellant cannot be connected with the commission of the murder of Udai Singh. As such the recoveries do not inspire confidence. We are, therefore, of the opinion that the prosecution has failed to prove the case against the accused-appellant beyond reasonable manner of doubt, the appellant, therefore, deserves acquittal. ( 13 ) IN the result, the appeal filed by accused-appellant Dhan Singh is allowed. The judgment dated 30-4-1990, passed by the learned Sessions Judge, Merta, convicting and sentencing the appellant for the offences under Secs. ( 13 ) IN the result, the appeal filed by accused-appellant Dhan Singh is allowed. The judgment dated 30-4-1990, passed by the learned Sessions Judge, Merta, convicting and sentencing the appellant for the offences under Secs. 302, 291 and 404 IPC, is set-aside and the appellant is acquitted of all the aforesaid charges. He is in jail and shall be released forthwith, if not required in any other case. Appeal allowed conjunction set aside.