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2002 DIGILAW 216 (JK)

Siraj Din v. State

2002-07-16

B.L.BHAT, R.C.GANDHI

body2002
1. This appeal, which is directed against the judgment dated 15.03.1999, and order of sentence dated 24.03.1999, recorded by Addl. Sessions Judge Reasi in Session case No.19 of 19.10.1992, titled as State vs Siraj-ud-Din and others, stems out of those circumstances which are summarized as: 2. On 16.07.1992, one Bhagmal R/o village Kulsar, Reasi, along with Sonaullah S/o Haji Bashir, Yousuf Lamberdar, Feroz Din, R/o village Jad Vijay Kumar Lamberdar, R/o Village Nagar, Farman Ali, R/o Village Jad, Tehsil Reasi, lodged on ocular report at Police Station Reasi at 9.30 A.M. on 16.07.1992, to the effect that they have spotted the dead body of one Bansi Lal S/ o Tara Chand R/o Village, Nagar on the road side at village Jad, which had injuries on its head and mouth. On receipt of this report, it came to be diarised as report No.5 dated 16.07.1992 in the Daily Diary of the Police Station and proceedings under Section 174-CR.P.C. came to be initiated and the same came to be entrusted to S.I. Police Sh. Kishore Kumar Chib, who proceeded on the spot, seized the dead body, got its autopsy conducted, prepared the site plan, handed over the dead body to its successors for performance of last rites. The doctor who conducted the postmortem examination opined that the deceased has died due to shock and head injury and other injuries present on it. On conclusion of the inquiry this came to be concluded that the deceased has been done to death as a result of which on 01.02.1992 a case for an offence punishable under section 302-RPC came to be registered by the said police Station, Reasi under FIR No. 11 of 1992. After usual investigation the investigating agency found that during the night intervening 15th and 16th July 1992 the accuse persons namely Siraj Din, Bashir Mohd, Rashid R/o village Jad and Sharief Din village Pannasa did away with the life of Bansi Lal with an intention to rob him, accordingly chargesheeted them before the learned Judicial Magistrate Reasi for offences punishable under section 302,392/ 34-R.P.C. who in turn came to commit it to the court of leaned Addl. Sessions judge Reasi. 3. Sessions judge Reasi. 3. The accused Siraj Din, Rashid and Bashir who came to be charge sheeted for an offence punishable u/s 302.392-RPC and accused Manzoor and Sharief came to be chargesheeted for offence punishable u/s 392/109 and 34-RPC by the trial court claimed to be tried and advanced a plea of complete innocence. The Trial court on conclusion of the trial of the case, on discussion of evidence adduced by a prosecution before it, came to hold accused-appellants Siraj din, Bashir and; Rashid guilty of offence u/s 302-RPC and came to convict them for the said offence and sentenced them to under go life imprisonment and also imposed a fine of Rs.5000/- each upon them and in default of payment of fine came to sentence them for further period of one year and came to refer the case to this court for confirmation of the sentence. The remaining accused came to be acquitted by the trial court by giving them the benefit of doubt. Now this judgment shall dispose of both the appeal and the reference of the trial court for confirmation of the sentence awarded to the appellants/accused together. 4. The appellants/accused have assailed the impugned judgment and the order of sentence against law and facts and based on wrong appreciation of the evidence on the record. 5. We have heard the learned counsel for the appellants/ accused and the Government Advocate representing the State-respondent. 6. The State-Respondent in a bid to substantiate their case before the Trial Court examined Farman Ali, Feroz Din, Mohd Yousuf, Sonnaullha, Baghmal, Kewal Krishan, Smt. Tripata Devi, Sudesh Kumar, Ashok Kumar, Vijay Kumar, Ram Lal, Prem Nath, Som Raj, Gul Hamid, Shiv Ram, Raj Kumar, Hans Raj Patwari, Brij Mohan, Thakra Singh, Kartar Singh, Naresh Kumar Chin, S.I.; Surak Singh Tehsildar, Abdul Hamid, Dr. K.R. Gupta and Main Chand ASI police. As indicated the Trial court after considering the evidence of said prosecution witnesses came to find appellants/accused guilty of offence punishable under Section 302-RPC, therefore, we are constrained to consider the entire evidence of the said prosecution witnesses in order to test the correctness in the light of the allegations leveled by the learned counsel for the appellants/accused against the conclusions arrived at by the Trial Court. 7. 7. From the perusal of the file it reveals that the case of prosecution is resting on the evidence of the eye witnesses namely PW Shiv Ram and PW Abdul Hamid, on the extra-judicial confession made by the accused persons before PW Kewal Krishan and also on the disclosure statements made by the appellants-accused while in custody in consequence of which a bloodstained shirt and a torch on the identification of accused Siraj Din, a Bedsheet, on the identification of accused Rashid and a bag on which words ˜B.L.S. were scribed, on the identification of Bashir Mohd accused was recovered. 8. This is the evidence of PW Shiv Ram that he is working at Talwara coloney. On the 15th July 1992 after finishing his duty at 8 P.M. he was going to his house, Village Jad, he heard a voice saying "God save me"; he got terrified, concealed himself behind a bush, found Bansilal deceased who was caught by his legs by Mohd Bashir, accused Rashid had caught him by arms; he was flat on the ground and accused Siraj Din was hitting him with a stone on his face and head. In the meanwhile PW Gul Mohd Bakerwal came from his house and asked them as to why they are beating him; On this Siraj Din said "catch and kill him also". Thereafter Gul Mohd fled back to his house. In the meanwhile accused Siraj Din stopped him and told him that he has recognized him and threatened him that if he discloses this incident to any body in that case he will also meet the same fate; thereafter he took his heals and reached home by going through the forest. Because of threat he did not disclose this occurrence to any body for 15 to 18 days. On 03.08.1992 when police arrive on spot he disclosed the occurrence to them. This is also in his evidence that it was a moonlit night and there were little clouds also; he witnessed the occurrence at a distance at a distance of 7 to 8 feet; it is at this distance he identified Gul Mohd also. The police arrived on the spot on the following day of the occurrence; he did not go there, remained indoors because he had got frightened; he however, disclosed the occurrence to the police on 3.8.1992 by the time the accused were arrested. 9. The police arrived on the spot on the following day of the occurrence; he did not go there, remained indoors because he had got frightened; he however, disclosed the occurrence to the police on 3.8.1992 by the time the accused were arrested. 9. This is the evidence of PW Gul Hamid that he was sleeping in his house when he heard a noise; he went there, enroute near Siraj Din™s house he found that Siraj Din had caught Bansi Lal by his head and was hitting with a stone on his face. Accused Bashir had caught him by his hands and accused Rashid by his legs. He tried to intervene but accused Siraj Din started to hit with the stone and he took to his heels. On cross-examination he has deposed that there a good amount of noise on the spot when Siraj Din chased him with the stone; he went into the forest where he remained for 15 days without food. Later on he was informed by the police that he has to make a statement before the court. Prior to his making the statement before the court he did not reveal the occurrence to any body. He identified the accused in the moonlight when it was drizzling. He narrated the occurrence to the police after about 20 to 22 days. The evidence of both these witnesses appear to be highly discrepant, unworthy of any credit, PW Shiv Ram as per his version has remained tight-lipped about the police visited the spot on the very next day of the occurrence i.e. 17.07.1982. The explanation tendered by him of not disclosing the incident to anybody is not satisfactory because in the natural course of events he would have disclosed the dreadful incident to some of his close confident or a close relation. Moreover, to the police who had arrived on the spot on the following day of occurrence. And the version of this witness that he had disclosed the occurrence to the police on 03.08.1992, after the accused were arrested, is belied by the police record on the file which reveals that the accused were arrested on 06.08.1992. Moreover, to the police who had arrived on the spot on the following day of occurrence. And the version of this witness that he had disclosed the occurrence to the police on 03.08.1992, after the accused were arrested, is belied by the police record on the file which reveals that the accused were arrested on 06.08.1992. The version of this witness that on the following day of the occurrence when police arrived on the spot he remained indoors because he got frightened is contradicted by Farman Ali PW who has deposed that on the following day when the police arrived on spot, the inhabitants of four villages assembled there which includes P.W. Shiv Ram S/o Kaka Ram. PW Gul Hamid has also observed studied silence for a period of more than three weeks after witnessing the occurrence. This studied silence on his part makes his evidence highly discrepant, unworthy of any credit and cannot be believed. The explanation rendered by him because of threat he took to his heels, went to the forest where he remained for 15 days without food and survived on drinking water is highly fantastic and cannot be believed. He appears to be planted witness. This being so the evidence of both these witnesses being untrustworthy deserves outright rejection. The Trial court has fallen in grave error in accepting the evidence of these witnesses. 10. This takes us to consider the extra-judicial confession made by the accused persons before PW Kewal Krishan, which is relied by the Trial court is holding the appellants-accused guilty of the offence in murder. 11. Confession is an acknowledgment in express words by the accused in a criminal case of the truth of guilty fact or some essential part of it. Confession can be divided into two clauses-judicial confession and extra-judicial confession. Judicial confessions are those which are made before a Magistrate or a court in the due course of legal proceedings and it is essential that it should be made out of free will of the party making it and with full knowledge of the consequences of the confession. Extra-judicial confession is that which is made by a party elsewhere than before a Magistrate or a court. It may be written or oral and can be made to any person or body of persons. Extra-judicial confession is that which is made by a party elsewhere than before a Magistrate or a court. It may be written or oral and can be made to any person or body of persons. The evidence offered by extra-judicial confession is a week type of evidence, must be received by court with great care and caution. This should be clear, consistant and convincing because the confession is not normal reaction of the party making it. It must stand the test of reproduction of exact words and must be shown by the prosecution as to what was the reason, motive for an accused to make it, and as to whether the accused could repose confidence in the person before whom such confession is made their lordships of the Apex Court in a case titled Haramba Brahma vs State of Assam, reported as AIR 1982 SC1595 have observed:- "....We are at a loss to understand how the High Court accepted the evidence on this extrajudicial confession without examining the credentials of PW No. 2, Bisti Ram, without ascertaining the words used; without referring the decision of this court to e presently mentioned where in it is succinctry stated that extra judicial confession to afford a piece of reliable evidence must pass the test of reproduction of exact words, the reason or motive for confession and person selected in whom confidence is reposed." 12. The Division Bench of Punjab and Haryana High Court in a case titled Niranjan Lal vs State of Haryana, 1995 Cr.L.J.248(P&H) have held; confession to be devoid of credibility for the following reasons: a. A joint confession was made by the accused to a person with whom accused had no intimacy; b. It was not disclosed as to which one of the accused disclosed the facts relating to the occurrence to previously or could have to stated the same words at that the same time; and c. No reason was given for making the confession or for selecting the person. 13. Having regard to this law let us examine the evidence of PW Kewal Krishan. He has given his residence at village Nagar and when the appellants are from village Jad. 13. Having regard to this law let us examine the evidence of PW Kewal Krishan. He has given his residence at village Nagar and when the appellants are from village Jad. This is in his evidence that on 6th Aug.1992 he was going to attend his duties at village kheral where he was posted; enroute he met appellants accused namely Siraj Din, Mohd Manzoor and Rashid who told him that they have committed a mistake in murdering Bansilal; they were ready to pay compensation after selling their cattle-heads. Siraj Din also said that his son Bashir and Mohd Sharief R/o village Panasa was also with them. On his inquiry the accused Siraj Din said that he inflicted injuries with stones, Rashid caught the deceased by his arms and Bashir caught his legs and Manzoor was holding a torch. Thereafter he enquired from accused Rashid who in reply said that a mistake had been committed, he be pardoned. Accused Manzoor on inquiry said that it was under the threat offered to him by accused Siraj Din that he was holding the torch. The perusal of the record reveals that the statement of this witness under sec.161 Cr.P.C, came to be recorded by the police on 03.08.1992 during the course of investigation, wherein he has made a statement to the effect that accused persons namely Siraj Din, Rashid and Manzoor Hussain arrived to his house on 3rd of August, 1992 and made extra-judicial confession with respect to the death of Bansi Lal deceased but in his evidence before the trial court the witness is specific that on 6.8.1992 when he was going to attend his duties at village Kheral accused Siraj Din, Rashid and Manzoor made an extra-judicial confession before him. On the same day he went to the police station and narrated this fact to the police. This is also in his evidence that he was not friendly to accused Siraj Din. There is nothing in the evidence of this witness or on the record of the case that PW Kewal Krishan, before whom the appellants/ accused made a confession, were intimate to him and that what was the reason or motive for making the confession and as to why he was selected and the confidence was reposed in him. There is nothing in the evidence of this witness or on the record of the case that PW Kewal Krishan, before whom the appellants/ accused made a confession, were intimate to him and that what was the reason or motive for making the confession and as to why he was selected and the confidence was reposed in him. It is observed that an extra-judicial confession alleged to have been made by the accused with whim the accused had neither any relation and were in no manner intimate to him, cannot be relied upon. The prosecution has failed to make out a case that the accused had a reason for making a confession before this witness or to select him for this purpose. There is nothing on the file to show that the accused/appellant had a reason to make a confession to this witness. Therefore, same cannot be relied upon without independent corroboration. 14. The accused-appellants are alleged to have made disclosure statements, as a consequence whereof a bloodstained shirt, a torch has been recovered on the identification of accused- appellant Siraj Din, abedsheet on the identification of accused Rashid and a bag has been recovered at the instance of accused with the alleged offence. The bloodstained shawl has been recovered at the instance and from the accused Siraj din. It appears that the said item, along with the strand of hair of the accused Siraj Din and the strands of hair found in the hands of dead body, were seized during investigation but do not appear to have been sent to the Forensic Science Laboratory for chemical examination. This is the greatest infirmity in the case, which makes the entire case of the prosecution doubtful. 15. In view of the aforesaid discussion the Trial Court has not appreciated the prosecution evidence on the file in its right perspective, as a result of which has come to a wrong conclusion in holding the appellants-accused guilty of an offence under sec. 30 2-R.P.C. 16. Therefore, the appeal is accepted, the appellants-accused are acquitted and the Reference for confirmation of the sentence is accordingly rejected. The record of the case, together with copy of the judgment, be sent down to the Trail court forthwith.