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2000 DIGILAW 1290 (RAJ)

Bhanwara Ram v. State of Rajasthan

2000-10-20

SUNIL KUMAR GARG

body2000
JUDGMENT 1. - The abovenamed accused-appellant has preferred this appeal from jail against the judgment and order dated 9.9.1999 passed by the learned Judge, Special Court Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Cases, Merta in Sessions Case No. 178/96 by which he convicted the accused- appellant for the offence under section 2 of the Rajasthan Preservation of Certain Animals Act, 1950 (hereinafter referred to as `the Act of 1950') and sentenced him to undergo two years' RI and pay a fine of Rs. 500/-, in default of payment of fine, to further undergo six months' RI. 2. Since the accused-appellant was not being represented by any counsel, this Court on 17.8.2000 appointed Shri B.M. Bhojak amicus curiae, who has argued the case on behalf of the accused-appellant. 3. The facts giving rise to this appeal, in short, are as follows : PW 1 Gheesu Singh lodged a report Ex.P/1 before PW 9 Suresh Dutt Sharma, SHO Police Station Degana on 22.8.1995 at about 2.30 p.m. stating inter alia that on the night of 16.8.1995 at about 10.00 p.m., accused-appellant chopped off the neck of the cow by knife and thus, killed the cow and at that time, this incident was seen by PW 3 Girdhari Singh and PW 4 Hari Ram, who were going at that time through the way. It is further stated that on the next day, PW 3 Girdhari Singh and PW 4 Hari Ram narrated the whole incident to the villagers and on being enquired, it was found that accused-appellants purchased a cow for Rs. 100/- from a person living in village Barna and accused- appellant was not traceable, but thereafter, he was found and village people assembled and accused-appellant was asked and upon this, accused-appellant told them that he purchased the cow for Rs. 100/- and he also confessed that' he has killed the cow as he wanted to sell the skin of cow so that he could earn more money. On this report, police registered the case; chalked out police FIR Ex.P /2; and started investigation. During investigation, the post-mortem of the dead body of the cow was got conducted by PW 6 Dr. Satyanarain Sharma, who prepared the report-Ex.P/6 and in that report, he has stated that since there was only skeleton of the cow before him, therefore, cause was not ascertained in the absence of visceral organ. During investigation, the post-mortem of the dead body of the cow was got conducted by PW 6 Dr. Satyanarain Sharma, who prepared the report-Ex.P/6 and in that report, he has stated that since there was only skeleton of the cow before him, therefore, cause was not ascertained in the absence of visceral organ. Thereafter, the accused-appellant was arrested on 22.8.1995 through Ex.P/5 by PW 9 Suresh Dutt Sharma. On 23.8.1995 accused-appellant gave information Ex.P/ 7 about the recovery of the knife and he also gave information Ex.P/8 on 24.8.1995 about the recovery of the skin of the cow alleged to have been killed by accused-appellant and in pursuance of these informations (Ex.P/ 7 and Ex.P/8), on 24.8.1995, in presence of motbir witnesses PW 8 Partaram and Bhanwar Singh, PW 9 Suresh Dutt Sharma recovered the knife and skin of the cow from the house of the accused-appellant through Ex.P/12. After usual investigation, police submitted challan against the accused-appellant in the Court of Magistrate and from where the case was committed to the Court of Session and thereafter, the case was transferred to the Special Court (SC/ST Cases), Merta. On 17.2.1997 a charge under section 2 of the Act of 1950 was framed against ate accused-appellant. The charge was read over and explained to the accused-appellant, who pleaded not guilty and claimed trial. In support of its case, the prosecution examined as many as 10 witnesses and got exhibited several documents and, thereafter, the statement of accused-appellant under section 313 Cr.P.C. was recorded. After recording evidence and conclusion of trial, the learned Judge, Special Court (SC/ST Cases), Merta vide his judgment and order dated 9.9.1999 convicted and sentenced the accused-appellant for the offence under section 2 of the Act of 1950 in the manner as stated above holding inter alia: 1. That PW 3 Girdhari Singh and PW 4 Hari Ram cannot be regarded as eye-witnesses in the present case. 2. That he relied on two circumstances; (i) that accused-appellant made a confession before the villagers; and (ii) that recovery of knife and skin of the cow has been effected at the instance of the accused-appellant, and thus, he found that circumstantial evidence was sufficient to convict the accused- appellant under section 2 of the Act of 1950. 2. That he relied on two circumstances; (i) that accused-appellant made a confession before the villagers; and (ii) that recovery of knife and skin of the cow has been effected at the instance of the accused-appellant, and thus, he found that circumstantial evidence was sufficient to convict the accused- appellant under section 2 of the Act of 1950. Aggrieved from the said judgment and order dated 9.9.1999 passed by the learned Judge Special Court (SC/ST Cases), Merta, this appeal has been filed by the accused-appellant. 4. In this jail appeal, the learned counsel for the accused- appellant has raised the following submissions : 1. That from the post-mortem report, the fact that cow in question was killed in the manner as alleged by the prosecution has not been established. 2. That the learned trial Judge has wrongly placed reliance on the extra-judicial confession alleged to have been made by the accused-appellant, as this extra-judicial confession cannot be treated as a legal extra-judicial confession in the present case. 3. That so called recovery of knife and skin of cow does not connect the accused-appellant with the commission of the crime since the accused-appellant deals in the business of selling skin of animals and as such, such type of things are found in his house. Hence, it was prayed that accused-appellant be acquitted of the charge framed against him. 5. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned trial Judge. 6. I have heard the learned counsel for the accused-appellant and the learned Public Prosecutor and perused the record of the case. 7. Before proceeding further, I would like to see the medical evidence of this case and the same is found in the statement of PW 4 Dr. Satyanarayan Sharma and the post-mortem report Ex.P/ 6. 8. PW 6 Dr. Satyanarain Sharma states in his statement that on 22.8.1995 he conducted the post-mortem of the dead body of cow and he found only skeleton of dead body of cow. He has proved post-mortem report Ex.P/ 6 where cause of death opined is that "the cause was not ascertained in the absence of visceral organ." 9. Thus, from the statement of PW 6 Dr. Satyanarain Sharma, the fact that cow in question was chopped off by knife has not been proved. 10. He has proved post-mortem report Ex.P/ 6 where cause of death opined is that "the cause was not ascertained in the absence of visceral organ." 9. Thus, from the statement of PW 6 Dr. Satyanarain Sharma, the fact that cow in question was chopped off by knife has not been proved. 10. PW 1 Gheesu Singh is that witness, who lodged report Ex.P/1. He has admitted in his statement : 1. That he has not seen any occurrence and the persons who have seen occurrence are PW 3 Girdhari Singh and PW 4 Hari Ram and on the basis of their statements, he lodged the report Ex.P/1. 2. That accused-appellant and his father both deals in the business of selling skins of dead animals. 3. That he has not mentioned the names of those persons of the village before whom accused-appellant confessed his guilt. 11. So far as PW 3 Girdhari Singh and PW 4 Hari Ram are concerned, the learned trial Judge has rightly held that they are not eye-witnesses and from perusing the statements of PW 3 Girdhari Singh and PW 4 Hari Ram, this finding of the learned trial Judge appears to be sound one, as they simply state that on the alleged night they were passing through the way and they saw the incident from distance and accused-appellant ran away after seeing them. They did not visit the spot at that time. 12. Another witness is PW 2 Gangaram, who has admitted that it is correct that the names of those persons before whom accused- appellant confessed his guilt has not been mentioned in the report Ex.P /1. 13. PW 5 Deeparam states that he also did not mention the name of those persons before whom accused-appellant confessed his guilt. 14. Another witness in this respect is PW 7 Prabhuram, who states in his statement that in his presence police personnel asked accused-appellant and upon this, accused-appellant told before the police personnel that he has killed the cow. He has further admitted in his cross-examination that it is also correct to say that when he visited the spot, he only found the skeleton of cow and on being asked, the accused-appellant admitted his guilt before the people of the Panchayat. 15. PW 9 Suresh Dutt Sharma has proved Ex.P/12, fard of recovery of knife and skin of cow. He has further admitted in his cross-examination that it is also correct to say that when he visited the spot, he only found the skeleton of cow and on being asked, the accused-appellant admitted his guilt before the people of the Panchayat. 15. PW 9 Suresh Dutt Sharma has proved Ex.P/12, fard of recovery of knife and skin of cow. Thus, from his statement, it is clear that skin of the cow and one knife were recovered at the instance of the accused-appellant.Evidence of extra-judicial confession 16. An extra-judicial confession is usually looked upon as weak type of evidence and, therefore, whenever it is sought to be relied upon, the burden lies upon the prosecution to show its trustworthiness. In order to render such confession worthy of belief, regard must be had to : 1. the person to whom it was made; 2. the connection, if any, of the accused with him; 3. the occasion or reason for the accused to go and make such a confession to him; 4. the circumstance in which it was made; 5. the prosecution is also liable to prove absence of physical coercion, torture, undue influence, etc; 6. the so-called confession should be voluntary; 7. the person deposing about the confession must give the exact words of the accused. 8. the prosecution must prove the motive or reason for making confession. 17. Looking to the above points, the present case is being examined. 18. In this case, the source of the information that accused- appellant killed the cow by chopping the neck of the cow by knife, is found in the statements of PW 3 Girdhari Singh and PW 4 Hari Ram and these witnesses have not been believed by the learned trial Judge and thus, the source from where the story developed that accused-appellant killed the cow in question goes off. 19. In the report Ex.P/1 which was lodged by PW 1 Gheesu Singh, there is no mention of the names of the persons before whom extra-judicial confession was made by the accused-appellant. One of the essential conditions for placing reliance on extra- judicial confession is that person to whom it was made, must be clear and exact words must also come and these things are missing in the present case. One of the essential conditions for placing reliance on extra- judicial confession is that person to whom it was made, must be clear and exact words must also come and these things are missing in the present case. In this respect, the statement of PW 7 Prabhuram also does not make the case of extra-judicial confession, inasmuch as, this witness has stated that accused- appellant made such extra-judicial confession before the police on being asked by the police. Thus, it cannot be said that such extra-judicial confession was voluntary one and on the contrary, element of undue influence is there. 20. Not only this, extra-judicial confession by itself, for making any basis for conviction is considered as a weak piece of evidence. In the present case, as already stated above, medical evidence does not support the case of the prosecution on the point that neck of the cow was chopped off by knife. 21. Hence, in the present case, the so-called extra-judicial confession is not reliable evidence and the learned trial Judge has wrongly placed reliance on it and thus, the findings of the learned trial Judge in this respect are liable to be set aside.Recovery of skin of the cow and knife 22. So far as the recovery of skin of the cow and knife in the present case is concerned, it cannot be connected with the commission of the alleged crime by the accused-appellant as it is in evidence that accused-appellant by profession is Mochi, who deals in the business of selling skin of dead animals. Thus, when he deals in such business, if skin as well as knife is found in his house, it cannot be said that the skin so recovered is the skin of that cow which is alleged to have been killed. The most important aspect of the case is that in this case, the prosecution has not been able to prove that any cow was killed by any person by chopping the neck by knife. Hence, when this fact is not proved, the whole story comes to an end. 23. The most important aspect of the case is that in this case, the prosecution has not been able to prove that any cow was killed by any person by chopping the neck by knife. Hence, when this fact is not proved, the whole story comes to an end. 23. For the reasons stated above, the findings of the learned trial Judge convicting accused-appellant for the offence Under section 2 of the Act of 1950 are unjustified as prosecution has not established its case by cogent and reliable evidence against the accused-appellant and thus, the findings of the learned trial Judge are liable to be set aside.In the result, the appeal filed by the accused-appellant-Bhanvara Ram is allowed and the judgment and order dated 9.9.1999 passed by the learned Judge, Special Court (Scheduled Castes and Scheduled Tribes) Cases, Merta are set aside and the accused- appellant is acquitted of the charge under section 2 of the Act of 1950. Since accused-appellant-Bhanwara Ram is in jail, he be released forthwith, if not required in any other case.Appeal allowed. *******