Kashi Ram v. State of Rajasthan — 1999 DIGILAW 1541 (RAJ)

Honble MATHUR, J.–This murder reference has been made by the learned Addl. Sessions Judge (Women Atrocities) Sri Ganganagar for the confirmation of the death sentence having held the accused Kashi Ram guilty of murder of his wife Mst. Kalawati aged 24 years, two daughters namely Suman aged 2 1/2 years and Guddi 2 1/2 months by judgment dated 29.9.99. The accused Kashiram has also preferred an appeal from jail challenging the confirmation of death sentence awarded by the trial court which has been registered as D.B. Cr. Jail Appeal No. 619/99. The accused has also preferred a regular appeal through the counsel which has been registered as D.B. Cr. Appeal No. 622/99 Kashi Ram vs. State. Both the appeals are also heard alongwith the murder reference. The accused Kashiram hereinafter shall be referred as the appellant. (2). In short the prosecution case as set out during the trial is that the accused appellant Kashiram had married to the deceased Kalawati 7 years back from the date of incident. Out of their wedlock two children were born namely the deceased Suman aged 2 1/2 years and Guddi aged 2 1/2 months. The relations between husband and wife were not cordial. Accordingly, the appellant wanted to get rid of his wife Kalawati. Thus, he committed the murder of his wife Mst. Kalawati and both the daughters during the period 3.2.98 to 6.2.98. (3). The F.I.R. of the incident was lodged by PW/6 Indrabhan on 6.2.98 at 10.15 a.m. at Police Station Anoopgarh stating that Bholuram is his aunts (Bhua) son, his daughter Kalawati was married to the accused appellant Kashiram resident of Chuk No. 17-A. For last two months he was living in the locality known as `Prem Nagar on rent alongwith his wife and two daughters Suman and Guddi. After six months of their marriage their relations became strained. The appellant Kashi Ram used to taunt her for bringing camel instead of buffalo. The appellant Kashi Ram also used to say that her complexion was black. He also used to beat her. A panchayat was also assembled at the house of the father of the accused Harchand in Chuk No. 17-A. His father Harchand told the Panchayat that the appellant Kashi Ram was not under his control. Mst. Kalawati did not come to her inlaws house for about 1 1/2 to 2 years. He also used to beat her. A panchayat was also assembled at the house of the father of the accused Harchand in Chuk No. 17-A. His father Harchand told the Panchayat that the appellant Kashi Ram was not under his control. Mst. Kalawati did not come to her inlaws house for about 1 1/2 to 2 years. Thereafter Harchand visited the house of Kalawati and told that there is improvement in KashiRam. On assurance being given that she will be well treated. Kalawati was sent alongwith Kashiram and Harchand. The appellant Kashiram thereafter went to the Mohangarh for 2-3 months. On return, he again started beating her. It was also stated that about 6 to 7 months back PW/7 Nandram brother of the deceased met the accused Kashiram near the panchayat office and enquired as to why he sold the ring given to him, on which the accused appellant retorted ``he can kill his sister even. It is also stated that the appellant Kashi Ram was living with his wife and children for last two months in a separate house. The appellant was working as `Mistri on the shop of Bhagirath. On 3.2.98 PW/2 Kalawatis brother Mamraj as usual had gone to the house of the accused to deliver the milk. At that time, Kalawati told him that henceforth he should not bring milk to their house. On the next date i.e. on 4.2.98 when Mamraj passed through the house of the accused, he found that the house was locked. On enquiry appellants neighbour Gurudayal disclosed that till last evening they were there but he was not aware as to when and where, they have gone in the morning. It was also stated that the mother of the deceased Kalawati came to his house and expressed suspicion about missing of Kalawati. She requested him to enquire about the Kalawati and her daughters. On this he alongwith Sonarayan on a motor-cycle went to Chuk No. 17-A. On the way Kashmirilal and one more person met them. It was stated by them that Kashiram alongwith his children has gone to Suratgarh for attending the fair. They also stated that they are waiting for them. At that time, father of the accused Harchand also arrived. He disclosed that Kashiram and his children were living separately in a house in the locality known as `Prem Nagar. It was stated by them that Kashiram alongwith his children has gone to Suratgarh for attending the fair. They also stated that they are waiting for them. At that time, father of the accused Harchand also arrived. He disclosed that Kashiram and his children were living separately in a house in the locality known as `Prem Nagar. Thereafter the informant Harchand and Sonarayan went to the house of the appellant on a motor cycle. They found the house locked. They pushed the door and peeped inside. They saw that Kalawati was lying on a cot. They gave her call but there was no response. They got suspicion and as such they made entry in the house by removing the doors from axle. They found that dead body of Mst. Kalawati was lying on one cot and dead bodies of two daughters were lying on the another cot. It was suspected that Kashiram has murdered his wife and two daughters at some time on 3.2.98. On this information, Police registered a case of offence under Sec. 302 I.P.C. and proceeded with the investigation. The police prepared inquest and sent the dead bodies for post-mortem. During the investigation, the statement of PW/3 Dinesh Kumar and PW/4 Om Prakash were recorded under Sec. 164 Cr. P.C. After usual investigation police led chargesheet against the appellant of offence under Sec. 302 I.P.C. (4). The accused appellant denied the charges and claimed trial. The prosecution in support of the case examined as many as 13 witnesses. The prosecution relied on the following piece of circumstances to bring home the guilt of the accused appellant:- 1. that all the three deceased persons were last in the company of the appellant, 2. recovery of cord and key in pursuance of the information given by the appellant, 3. extra judicial confession of the guilt before PW/3 Dinesh and PW/4 Om Prakash by the accused appellant. 4. motive for the accused appellant to kill his wife Kalawati. In statement under Section 313 Cr. P.C. the accused appellant Kashi Ram pleaded that the entire evidence collected by the prosecution against him is false. He also produced Birbal Ram as DW-1. The trial court found the circumstantial evidence sufficient to hold the appellant guilty of the charge of murder of Kalawati and two daughters. In statement under Section 313 Cr. P.C. the accused appellant Kashi Ram pleaded that the entire evidence collected by the prosecution against him is false. He also produced Birbal Ram as DW-1. The trial court found the circumstantial evidence sufficient to hold the appellant guilty of the charge of murder of Kalawati and two daughters. Accordingly, the trial court convicted him of offence u/s 302 I.P.C. In the opinion of the learned trial Judge the crime falls in the category of arrest of rate case and as such, awarded the death sentence and has made a reference to this court. (5). Assailing the judgment, it is contended by Mr. M.L. Garg, learned counsel for the appellant that the circumstances relied upon by the prosecution have not been firmly established and that in any case they are not enough to bring home the offence of the accused appellant. On the other hand, learned Public Prosecutor has supported the judgment of the trial court. (6). We have considered the rival contentions and scaned the prosecution evidence carefully. PW/10 Dr. Prem Arora has stated that he conducted the post-mortem of the dead body of the deceased Mst. Kalawati on 7.2.98. He has proved the post-mortem report Ex. P/16. He found following injuries on her person: ``Mark of ligature present on neck 2cm in width and knot present on back of neck, ligature mark is situated just below the thyroid cartilage & encircling the neck completely. Base of mark is pale, dry and hard. One cut section tissue below ligature mark is dry and white. No external injury present any where in body. In his opinion cause of death was Asphyxia. (7) He also conducted the post-mortem of the dead body of the deceased Suman aged 2 1/2 years. He has proved the post-mortem report Ex. P/17. In his opinion the cause of death was Asphyxia. (8). He also stated that he performed the post-mortem of the dead body of Guddi aged 2 to 3 months. He proved the injury report Ex. P/18. In his opinion cause of death was Asphyxia. (9). Thus, the prosecution has established that Mst. Kalawati, Suman and Guddi died of homicidal death. (10). The entire case rests on the circumstantial evidence. (8). He also stated that he performed the post-mortem of the dead body of Guddi aged 2 to 3 months. He proved the injury report Ex. P/18. In his opinion cause of death was Asphyxia. (9). Thus, the prosecution has established that Mst. Kalawati, Suman and Guddi died of homicidal death. (10). The entire case rests on the circumstantial evidence. It is well established that in a case resting on circumstantial evidence all the other circumstances brought out by the prosecution must inevitably and exclusively point to the guilt of the accused and there should be no circumstance which may reasonably be considered consistent with the innocence of the accused. Even in the case of circumstantial evidence, the court will have to bear in mind the cumulative effect of all the circumstances in a given case and weigh them as an integrated whole. Any missing link may be fatal to the prosecution case. This reference is made by the State of Gujarat reported in AIR 1978 S.C. 424 (1). (11). Though, the prosecution has relied upon the three circumstances but the entire case hinges on the extra judicial confession. The prosecution in order to prove the circumstance of extra Judicial confession has produced PW/3 Dinesh Kumar, PW/4 Om Prakash. It is stated by PW/3 Dinesh Kumar that on 17.2.98 he was sitting alongwith his friend Om Prakash. At about 5 p.m. the accused appellant Kashi Ram came to him and ask him to protect him. He was in depressed condition. He also stated that he has committed wrong. On enquiry from him that as to what has happened and on repeatedly asking he only said that he has committed wrong and he should be protected. He pacified him, on which, he disclosed that he has killed his wife Mst. Kalawati and daughters Suman and Guddi. He also enquired as to how he has killed them, on which, he disclosed that he tied cord around the neck and killed Kalawati by strangulation. He also started that he killed both the daughters by closing their mouth by hand and by strangulation. He asked to accused as to whether he was prepared to accompany them to the police station, on which, he expressed his readyness. Thereafter they went to the police station alongwith the accused Kashi Ram. It would be convenient to extract the relevant statement of PW/3 Dinesh Kumar as follows. (12). He asked to accused as to whether he was prepared to accompany them to the police station, on which, he expressed his readyness. Thereafter they went to the police station alongwith the accused Kashi Ram. It would be convenient to extract the relevant statement of PW/3 Dinesh Kumar as follows. (12). PW/4 Om Prakash has stated that on 17.2.98 he had gone to the house of his friend Dinesh Kumar when he was sitting alongwith Dinesh Kumar the accused Kashi Ram arrived there. He was in depressed condition. PW/3 Dinesh Kumar enquired from the accused that why he was depressed, on which, he disclosed that a wrong has been committed by him. He also disclosed that he has killed his wife Kalawati and daughters Suman and Guddi. He further disclosed that he killed her by tying cord around her neck and by strangulation. He killed Suman and Guddi closing their mouth and by strangulation. Thereafter they look Kashi Ram to the police Station. It would be convenient to extract relevant portion of the statement of PW/4 Om Prakash as follows: (13). Mr. M.L. Garg, learned counsel for the appellant Kashi Ram has critisized the statement of both the witnesses on number of grounds. It is submitted that the F.I.R. was lodged on 6.2.98 and there was absolutely no occasion or the reason for the appellant Kashi Ram to make his confession after 12 days before the person who cannot be said to be a person of confidence of appellant. Mr. Garg has also read the statement of PW/1 Sonarayan. Mr. Garg has invited our attention towards the cross-examination of the statement of PW/1 Sonarayan wherein has indicated certain relations between the family of the deceased and the PW/3 Dinesh Kumar, but Dinesh Kumar has denied his relations with the family of the deceased. It is, thus stressed that there was no reason for the appellant to make confession before P.W./3 Dinesh Kumar. It is also submitted that the extra judicial confession is a weak type of evidence and no conviction can be sustained solely on the basis of the extra judicial confession. The learned counsel has relied upon the decision of the Apex Court in Kailash vs. State of U.P. (2) and in Kavita vs. State of Tamil Nadu (3), and in Makhan Singh vs. State of Punjab (4). Mr. The learned counsel has relied upon the decision of the Apex Court in Kailash vs. State of U.P. (2) and in Kavita vs. State of Tamil Nadu (3), and in Makhan Singh vs. State of Punjab (4). Mr. Nikub, learned Public Prosecutor submits that the statement of PW/3 Dinesh Kumar and DW/4 Om Prakash are natural and straightforward. It is also submitted that the evidence of extra judicial confession is corroborated by the medical evidence. (14). In Makhan Singh vs. State of Punjab (supra), it is held that extra judicial confession is a very weak piece of evidence. The court has also observed that the extra judicial confession may be made by the accused to save himself from certain harassment. Thus, there must be some evidence to show that witness had influence with the police or had some status to save the accused from guilt or harassment. It is also held that in absence of any corroborative evidence, extra judicial confession cannot be relied upon. In Kailash vs. State of U.P. (supra), the extra judicial confession alleged to have been made after 18 to 20 days of the date of the murder. The court refused to rely upon such type of extra judicial confession on the ground that there was no apparent reason for the accused to do so after so many days. In Kavita vs. State of Tamil Nadu (supra) the court also held that conviction can be sustained on extra judicial confession but it being very weak type of evidence, it must be proved just like any other fact and the value thereof depends upon the veracity of the witness to whom it is made. It would be convenient to extract the observations of the court as follows: ``There is no doubt that convictions can be based on extra judicial confession but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value therefore depends upon the veracity of the witness to whom it is made. It may not be necessary that the actual words used by the accused must be given by the witness but it is for the court to decide on the acceptability of the evidence having regard to the credibility of the witnesses. (15). It may not be necessary that the actual words used by the accused must be given by the witness but it is for the court to decide on the acceptability of the evidence having regard to the credibility of the witnesses. (15). It emerges from the aforesaid that the extra judicial confession is essentially a weak type of evidence. In absence of corroborative evidence, it is not safe to base the conviction on extra judicial confession alone. While appreciating the evidance of witnesses before whom the extra judicial confession is made, it must be shown that such a person in whom the accused reposed confidence is a person of status in society in the sense of providing protection from harassment or in any case such a person is not stranger altogether. (16). As far as PW/4 Om Prakash is concerned on his own saying he is not a person acquainted with the accused. He has stated that on 17.2.98 while he was sitting in the house of his friend. PW/3 Dinesh Kumar, the accused appellant Kashi Ram came and made extra judicial confession in the manner as disclosed in the statement. So far as PW/3 Dinesh Kumar is concerned, he has stated that he knew Mamraj the brother of the deceased Kalawati. He has also stated that his shop is infront of the shop of Mamraj. He further admitted in the cross-examination that his house is at the distance of 3 Murabba. He also admitted that he did not go to the house of Mamraj to pay condolence on the death of Kalawati. He has denied any acquaintance with the parents of the de-ceased Kalawati. In the cross-examination he has stated that he just had known Kashiram but he had no acquaintance with him. Thus, it cannot be said that he was a man in whom Kashi Ram could, repose confidence. With regard to his social status he has admitted that he is neither a Sarpanch nor a ward member. In view of this, it is difficult to believe that a person who has secretly committed the murder, after 12 days, all of sudden will go to a person like Dinesh Kumar and in presence of completely stranger like P.W. 4 Om Prakash will made confession of the guilt. The manner in which the confession alleged to have been made, appears to be unnatural. The manner in which the confession alleged to have been made, appears to be unnatural. He very quietly gives out the manner of committing murder and then agrees to produce himself before the police. As far as corroboration from medical evidence is concerned, it is significant to note that the postmortem of the dead bodies was conducted on 7.2.98 and as such the cause of death was known to one and all. Thus, in our opinion no creditability can be attached to the statement of P.W./3 Dinesh Kumar and P.W./4 Om Prakash. Accordingly, we reject the circumstantial evidence of extra judicial confession. (17). As far as the evidence of last seen is concerned, the prosecution has produced PW/2 Mamraj to show that the deceased Kalawati and the children were last seen with the accused appellant. In our view, there is nothing unusual of the accused appellant Kashiram being seen with his own family members. Thus, this piece of circumstance is also rejected. (18). The another piece of circumstance, i.e. recovery of cord and key is concerned, the accused while in police custody made disclosure statement, leading to the recovery of said article vide Ex.P/14. No reliance can be placed on this piece of evidence for two reasons firstly that PW/6 Indrabhan has admitted in the cross examination that cord alleged to have been used for killing Mst. Kalawati was recovered from the spot and secondly the cord and key have not been produced before the court for reason best known to the investigation. (19). Thus, in our view, the circumstances put forward by the prosecution are weak and they are not made out with certainty. The learned trial Judge has committed manifest error in recording the conviction of the appellant on the basis of weak and unsustainable piece of circumstances. (20). In view of the aforesaid, these appeals are allowed. The judgment dated 29.9.99 passed by the learned Addl. Sessions Judge (Women Atrocities) Sri Ganganagar is quashed and set aside. In view of the this, the Murder Reference made by the learned Addl. Sessions Judge (Women Atrocities) Sri Ganganagar also stands rejected. The accused appellant Kashi Ram is set at liberty. He shall be released forthwith if not required in any other case.