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2002 DIGILAW 949 (MP)

Ajit Singh v. State of M. P.

2002-10-10

P.C.AGRAWAL, S.S.JHA

body2002
JUDGMENT Jha, J. -- 1. This judgment shall govern the judgment of Cr. A. 194/88, as both the cases arise out of common judgment decided in Sessions Trial No. 86/85. 2. Appellants have been convicted for an offence under sections 302/34 and 201 IPC. Conviction is based upon the extra-judicial confession of Kulwant Kaur appellant in Cr. A. 194/88. Apart from extra-judicial confession, trial Court has considered as many as 23 circumstances to hold appellants guilty of the offence of murder of Jarnelsingh. 3. Prosecution story in brief is as under: Kulwant Kaur is the wife of deceased Jarnelsingh and is resident of village Dharoi. She was residing with Jarnel Singh. Dead body of Jarnel Singh was found on railway track on 25.5.1985. The dead body was cremated by police treating it to be of unknown person. PW 1 Bahadur Singh is father of Jarnel Singh, who identified the photographs of the deceased. Brijendra Singh (PW 3) is son of the deceased and appellant Kulwant Kaur. Deceased was living separatey from his parents alongwith appellant Kulwant Kaur and his children. Appellant Ajit Singh is cousin of Jarnelsingh. Decomposition of body had started when the body was recovered by the police. Bahadur Singh (PW 1) who had gone to search his son to Ashok Nagar and attended police station Ashok Nagar, there he was informed by the police that they found a dead body of young Sikh. The body has been cremated but photographs of the dead body, slippers pant, shirt, turban are kept intact. PW 1 Bahadur Singh identified the clothes and photographs of the deceased. 4. During investigation, Bahadur Singh (PW 1) was told by appellant Kulwant Kaur that deceased has gone to village Kamalpur on 24.5.1985. He enquired about the whereabouts of deceased Jarnel Singh from Kulwant Kaur and Kulwant Kaur informed him in the morning as well as in the evening that deceased has gone to Kamalpur. Deceased did not return on Saturday, therefore, PW 1 Bahadur Singh went to search the deceased at Ashok Nagar and sent his other son Jaswant Singh to Kamalpur to search the deceased. In Kamalpur, Jaswant Singh learnt that the deceased has not visited Kamalpur. PW 1 Bahadur Singh also informed that on Friday, appellant Ajit Singh has asked for bullock cart from Sardar Singh. 5. In Kamalpur, Jaswant Singh learnt that the deceased has not visited Kamalpur. PW 1 Bahadur Singh also informed that on Friday, appellant Ajit Singh has asked for bullock cart from Sardar Singh. 5. It is further stated that when Kulwant Kaur was told that why she has spoken a lie that deceased has gone to Kamalpur, and on intimation about the death of Jarnel Singh, she has said that she has finished deceased with the help of Ajit Singh and Pran Singh. PW 1 Bahadur Singh, PW 3 Brijendra and PW 14 Jaswant Singh have deposed about the extra-judicial confession of Kulwant Kaur PW 7 Kala Singh has deposed that Bahadur Singh has borrowed his bullock-cart. On Friday morning appellant Kulwant Kaur informed him that she should be allowed to retain bullock cart for one day as she wants to spread fertilizers in the agriculture field. On Saturday, he called bullock-cart from Bahadur Singh. Bhura brought the bullock cart from the house of Kulwant Kaur There was some damage in the bullock-cart therefore he told Bahadur that as expected, he has damaged the bamboo curtain fixed on the bullock-cart. PW 1 Bhahadur Singh informed that the bullock-cart was taken by Ajit Singh in the night. He further deposed that on Sunday when police has seen the bullock-cart, they found blood stains on two planks and bamboo curtains. PW 8 Mulua has deposed that he was servant in the house of Jarnel Singh and they were carrying husk (bhusa) in the bullock cart. He used to return back in the evening. He visited the house at 2 at night to prepare" sani" for the cattle, but deceased Jamelsingh was not in the house. Appellant Kulwant Kaur was in the house. Kulwant Kaur told him that Jamelsingh has gone to Kamalpul He visited the house next day about 2 a.m. Appellant Kulwant Kaur and bullock-cart were not in the house. Children were sleeping on the cot. When he visited the house in the morning, he saw bullock-cart was kept in the house. He has seen that the' 'Niwar" (thick wide tape which is used in weaving a bedstead) dyed in pink colour was placed in the sun to dry. There was fresh spreading of cow dung in the courtyard. 6. Counsel for appellants submitted that from the evidence, no case for conviction of appellant is made out. He has seen that the' 'Niwar" (thick wide tape which is used in weaving a bedstead) dyed in pink colour was placed in the sun to dry. There was fresh spreading of cow dung in the courtyard. 6. Counsel for appellants submitted that from the evidence, no case for conviction of appellant is made out. The said extra-judicial confession is not voluntary and no conviction can be based upon such extra-judicial confession. 7. Counsel for appellants invited attention to the deposition of P.W. 1 Bahadur Singh. In para 13 of the deposition Bahadur Singh has deposed that after gathering information about the death of Jamelsingh he returned back to his home and informed his wife. After getting the news of the death of Jamelstngh appellant Kulwant Kaur has not visited his house. He went to inform Kulwant Kaur about the death of Jamelsingh. Kulwant Kaur said that she got Jarnelsingh killed through Ajit Singh and now she will also get her finished. Thereafter she tried to pour kerosene oil upon her to bum herself, but people caught her and in para 15 he has deposed that the relations between two accused were bad i.e. their character is not good. As regards the demeanour of this witness, trial Court has recorded that the witness loses his temper unnecessarily. He was warned to answer the questions without losing his temper. In para 24 of the cross-examination he has deposed that when he returned back to the village from Ashok Nagar on Sunday he did not inform about his seeing the clothes of deceased larnel Singh to appellant Kulwant Kaur, but he informed his wife. On learning about the death of larnel Singh his wife started weeping and thereafter he returned back to Ashok Nagar. He did not inform villagers about the death of larnel Singh but on hearing the sound of weeping of his wife villagers gathered there. Thus, information to appellant Kulwant Kaur about the death of larnel Singh was not given by him. In para 25 he admitted that when he intimated appellant Kulwant Kaur about the clothes of Jarnel Singh, Kulwant Kaur tried to bum herself, by pouring kerosene oil upon her and then she said that as she got larnel murdered' through Ajit Singh she will get him murdered. He has mentioned about this fact to police at the time of proceedings of Panchnama (Ex. P-1). 8. He has mentioned about this fact to police at the time of proceedings of Panchnama (Ex. P-1). 8. PW 3 Brijendra, who is the son of the deceased, has deposed in para 8 of his deposition that when Bahadur Singh PW 1 informed appellant Kulwant Kaur that lamel Singh has been murdered she did not go to the house of Bahadur Singh. She told Bahadur Singh that she and Ajit had murdered deceased lamel Singh. This witness is confronted with his statement (Ex. D-1) and he denied that Kulwant Kaur has said that she got lamel Singh murdered through Pran Singh. He has not mentioned the name of Pran Singh in his statement before police (Ex. D-1). He denied his statement that Kulwant Kaur has said that she along with Ajit Singh and Pran Singh has murdered his father. PW 14 Jaswant Singh, brother of the deceased, has deposed in para 1 that when he enquired from Kulwant Kaur about, his brother then she told him that she and Ajit Singh have murdered him and he too will be murdered. Thereafter she started pouring kerosene oil upon her. In the cross-examination in para 3 he admitted that in his police statement (Ex. D-1 second) (both the statement of Brijendra and the Jaswant are marked as Ex. D-1 by trial Court) involvement of Ajit Singh in murder of deceased larnel Singh is not mentioned. He could not explain the reason for not mentioning of this fact in the case diary statement. After para 10 Court has also recorded the demean our of this witness wherein it is mentioned that witness is trying to avoid the questions. 9. Counsel for appellant submitted that from these depositions, such confession is not voluntary. On receiving information about the death of her husband appellant Kulwant Kaur tried to bum herself by pouring kerosene oil and when she was stopped from burning herself she has said in a fit of rage and anger that she got deceased murdered. He submitted that such extra-judicial confession cannot be relied upon for convicting the appellants. In support of his contention counsel for appellants placed reliance upon the judgment in the case of Pakkirisamy v. State of Tamil Nadu ( AIR 1998 SC 107 ). He submitted that such extra-judicial confession cannot be relied upon for convicting the appellants. In support of his contention counsel for appellants placed reliance upon the judgment in the case of Pakkirisamy v. State of Tamil Nadu ( AIR 1998 SC 107 ). In para 8 of the judgment it is held that it is well settled that it is a rule of caution where Court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession. It is no doubt true that extra-judicial confession by itself is of a weak nature rather a weak type of evidence and it is for this reason that a duty is cast upon the Court to look for corroboration from other reliable evidence on record. Such evidence requires appreciation with a great deal of care and caution. If such an extra-judicial confession is surrounded by suspicious circumstances, needless to state that its credibility becomes doubtful and consequently it loses its importance. 10. Counsel for appellants referred to the judgment in the case of Kishore Chand v. State of Himachal Pradesh [ (1991) 1 SCC 286 ] and submitted as to when can conviction be solely based on circumstantial evidence. In para 5 of the judgment it. is held that when there is no direct witness to the commission of murder and the case rests entirely on circumstantial evidence, the circumstances relied on must be fully established. The chain of events furnished by the circumstances should be so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused. if any of the circumstances proved in a case are consistent with the innocence of the accused or the chain of the continuity of the circumstances is broken, the accused is entitled to the benefit of the doubt. 11. In the case of Dhananjay Shanker Shetty v. State of Maharashtra [JT 2002 (5) SC 559] it is held that the circumstance alleged against the appellant was that blood stained clothes and weapon were recovered from his house, but the trial Court as well as the High Court did not place any reliance upon this circumstance in view of the fact that according to the report of chemical examiner, the blood group found thereon did not tally with that of the deceased. In the case of Tilak v. State of M.P. (1978 JLJ 22) the Division Bench of this Court considering the scope of section 164 of Code of Criminal Procedure and sections 26 and 28 of Evidence Act has held .that it should be the entire initiative of the prisoner himself to state whatever he wants to depose. The confession should not only be voluntary, but also should be uninfluenced by any other factor. It is not open to a Magistrate recording the confession to lead the accused as if he is examining a witness. The accused should be left to himself to state whatever he likes and it is not the business of the Magistrate to lead him or to examine him like a witness and the confession must be voluntary. 12. Similarly for the par-pose of circumstantial evidence counsel for appellants referred to the judgment in the case of Ramanand v. State of M.P. ( 1995 JLJ 757 ), wherein it is held that circumstances proved are not of conclusive nature and chain of evidence is not complete. In the circumstances accused cannot be convicted merely presuming that he may be guilty of the offence. In the case of Brijlala Pd. Sinha v. State of Bihar [ (1998) 5 SCC 699 ] principles when conviction can be made upon the circumstantial evidence are restated, wherein it is held that the circumstances proved should lead to no other inference except that of the guilt of accused, so that the accused can be convicted of the offence charged. Before recording the conviction the Court must satisfy itself that the circumstances from which inference of guilt could be drawn have been established by unimpeachable evidence and the circumstances unerringly point to the guilt of the accused and further, all the circumstances taken together are incapable of any explanation on any reasonable hypothesis save the guilt of the accused. Referring to the judgment in the case of Lakshmi Singh v. State of Bihar ( AIR 1976 SC 2263 ) counsel for appellants invited attention to para 13 of the judgment wherein the question that on failure to send blood stained earth from place of occurrence indicates that defence version may be true. Referring to the judgment in the case of Lakshmi Singh v. State of Bihar ( AIR 1976 SC 2263 ) counsel for appellants invited attention to para 13 of the judgment wherein the question that on failure to send blood stained earth from place of occurrence indicates that defence version may be true. In the case of State of Punjab v. Bhajan Singh and others ( AIR 1975 SC 258 ) in para 17 of the judgment regarding the circumstantial evidence, it is held that even the circumstances may create suspicion against the accused but suspicion by itself, however strong it may be, is not sufficient to take the place of proof and warrant a finding of guilt of the accused. 13. On placing reliance upon the aforesaid judgments the counsel for appellant submitted that the alleged extra-judicial confession can not be termed as confession but it is a statement given in a rage on allegation of unchastity being levied upon Kulwant Kaur and for the so called extra-judicial confession appellant cannot be convicted. Counsel for appellant then submitted that appellant Kulwant Kaur has told PW 1 Bahadur Singh that deceased has gone to Kamalpur. If deceased has told her that he is going to village Kamalpur then there was no occasion for her to disbelieve the deceased that he is not going to village, Kamalpur. The reliance of trial Court on this circumstance is not correct. Counsel for appellant then submitted that in the report of serologist blood stains are not found on the 'Niwar' in Ex. P-36. Similarly, no blood stains were found on her clothes i.e. Salwar, Kameez and Chunni. No blood stains were found on the planks of bullock cart. Blood stains were not found in the earth. Thus, on not finding blood stains on alleged Niwar and the clothes, the appellant cannot be held guilty. Counsel for appellants referred to the serologist report (Ex. P-10). Counsel for appellant submitted that merely colouring of Niwar is not a circumstance to hold that appellant Kulwant Kaur has committed the murder of the deceased. On finding that the 'Niwar' has no blood stains, colouring of 'Niwar' is of no consequences. The colouring of clothes and 'Niwar' is natural practice in the houses and for this purpose she cannot be held guilty for commission of offence. On finding that the 'Niwar' has no blood stains, colouring of 'Niwar' is of no consequences. The colouring of clothes and 'Niwar' is natural practice in the houses and for this purpose she cannot be held guilty for commission of offence. From the evidence it is clear that deceased and Kulwant Kaur were separate from Bahadur Singh. Nobody has deposed about the nature of relations between Kulwant Kaur and her father-in-law Bahadur Singh and mother-in-law. And her not going to the house of Bahadur Singh after learning about the death of Jarnel Singh will not be a ground to hold that she is guilty The evidence of Mulua (PW 8) is not at all reliable and even on his evidence there is no material to determine that appellant Kulwant Kaur has committed the offence. The finding of the trial Court that the earth seized from the house of Kulwant Kaur contains blood is contrary to report of Serologist and the trial Court has not considered the evidence on record properly. 14. Counsel for appellants then submitted that as regards the motive that Kulwant Kaur was having illicit relations with Ajit Singh prosecution has not established its case. Merely on the statement of Bahadur Singh (PW 1) and PW 6 Harwansh Kaur no presumption can be drawn about the adulterous relation of Kulwant Kaur with Ajit Singh. Even otherwise in the absence of evidence that the relations of deceased with Kulwant Kaur were strained on account of illicit relations with Ajit Singh, the alleged motive is very weak. There is no iota of evidence that relations of Kulwant Kaur with Jarnel Singh were strained on account of her relations with Ajit Singh. There is no evidence on record that Jarnel Singh has objected the visit of Ajit Singh in their house. In the absence of such evidence and Ajit Singh being close relative, the allegation of illicit relations with Ajit Singh is not established and it is only an imagination of PW 1 Bahadur Singh, PW 3 Brijendra and PW 6 Harwansh Kaur. No other witness has deposed about the illicit relations between Ajit Singh and Kulwant Kaur. Counsel for appellants, therefore, submitted that Kulwant Kaur is entitled to be acquitted as prosecution has failed to prove its case beyond reasonable doubt. 16. Counsel for appellant Ajit Singh submitted that there is no material against him. No other witness has deposed about the illicit relations between Ajit Singh and Kulwant Kaur. Counsel for appellants, therefore, submitted that Kulwant Kaur is entitled to be acquitted as prosecution has failed to prove its case beyond reasonable doubt. 16. Counsel for appellant Ajit Singh submitted that there is no material against him. Prosecution has failed to prove that the 'Tonka' seized from him bears the human blood. On the basis of extra-judicial confession he cannot be convicted. There is no confession by him. There is nothing on record to conclude that he had illicit relations with Kulwant Kaur. Counsel for appellant invited attention to Ex. P-39 and submitted that the blood on the 'Tonka' has disintegrated and no report could be given by serologist, whereas in Ex. P-35 'Tonka', which is marked as Article J. recovered from Ajit Singh thin layer of dark brown stains on one side of the edge and both side at the tip were found. In the Benzidine phenolphthalein and crystal test positive result on the Art. J was found and presence of blood on Art. J was confirmed. But the prosecution has failed to prove that the blood on the said 'Tonka' contains human blood. In the absence of finding of human blood on the alleged 'Tonka' appellant's conviction is bad in law as prosecution has failed to prove its case beyond reasonable doubt. Counsel for appellant Ajit Singh submitted that there is no material on record to demonstrate that Ajit Singh was having illicit relations with Kulwant Kaur. Except the deposition of PW 1 Bahadur Singh and PW 6 Harwansh Kaur none of the villagers, has supported the prosecution case about illicit relations between Kulwant Kaur and Ajit Singh. There is nothing on record to demonstrate that this appellant had strained relations with deceased Jarnel Singh and there was some perpetual quarrelling between them on this account. He submitted that motive is too weak and appellant cannot be convicted. 16. Counsel for respondent submitted that on the question of extrajudicial confession there is no cross-examination by the defence. Therefore, trial Court has not committed any error in convicting the appellants on the extra-judicial confession. He submitted that motive is too weak and appellant cannot be convicted. 16. Counsel for respondent submitted that on the question of extrajudicial confession there is no cross-examination by the defence. Therefore, trial Court has not committed any error in convicting the appellants on the extra-judicial confession. For extra-judicial confession he referred to the judgment in the case of San jay v. State (NCT of Delhi) [ 2001 (3) SCC 190 ] and invited attention to para 14 of the judgment wherein it is held that Court was satisfied that Sheetal Grover (PW 5) is an independent witness and his testimony inspires confidence, which has been relied upon by the trial Court and there was no reason to disbelieve the statement of witness insofar as it relates to the making of the extra-judicial confession by the appellant before him. Counsel for respondent then submitted that recovery of 'Tonka' under section 27 of the Evidence Act was sufficient for conviction. The circumstances must be proved. Circumstances required to be proved are as under – (i) Motive (ii) Medical evidence. (iii) Disclosure statement of accused. (iv) Recovery of stolen property from the accused. (v) Recovery of bloodstained shirt (vi) Recovery of weapon of offence from the accused. (vii) Extra-judicial confession of the accused, and (viii) Last seen circumstances. 17. Counsel for respondent then referred to the judgment in the case of Darshan Singh v. State of Punjab ( AIR 1988 SC 747 ) and invited attention to para 8 and 10 of the judgment, wherein previous enmity was referred and no question was put in the cross-examination and thereby non cross-examination on the question of extra-judicial confession conviction cannot be faulted with. 18. Counsel for appellant referred to the Division Bench judgment in the case of Shaik Subhani v. State of A.P. (2000 Cri. LJ 321) and invited attention to para 24 of the judgment, wherein it is held that the defence counsel did not put the contradictions in the manner in which it ought to have been put. By putting suggestions to the witness and the witness denying the same will not amount putting contradiction to' the witness. The contradiction must be proved through the investigation officer. Then only it amounts to putting the contradiction to the witness and getting it proved through the investigation officer. 19. By putting suggestions to the witness and the witness denying the same will not amount putting contradiction to' the witness. The contradiction must be proved through the investigation officer. Then only it amounts to putting the contradiction to the witness and getting it proved through the investigation officer. 19. In the case of Ammini v. State of Kerala [(1998) 2 SCC 301] question of confession under section 24 of Evidence Act is considered. In para 21 of the judgment it is held that in the absence of any requirement that separate reasons were required to be recorded for believing that the confession was made voluntarily it was not proper for the trial Court to doubt its genuineness on the ground that the reasons were not recorded separately though the satisfaction was recorded in the memorandum. In this case on appreciation of evidence it was held that there was reasonable ground to believe that Ammini and other accused had conspired together and, therefore, the confession made could be used against other accused. 20. Counsel for appellants then referred to the judgment in the case of Dauji v. State of Maharashtra ( AIR 1977 SC 1579 ) regarding the appreciation of confessional statement under section 164 (3) of Criminal Procedure Code. In the case of State of Rajasthan v. Teja Ram ( AIR 1999 SC 1776 ) it is held that without impeaching the credibility of witness, the witness cannot be disbelieved. 21. After having anxious consideration to rival contentions, we are of the opinion that prosecution has failed to prove its case beyond reasonable doubt. The said extra-judicial confession is not voluntary and has not been given voluntarily. From the evidence of PW 1 Bahadur Singh, PW 3 Brijendra and PW 14 Jaswant Singh coupled with the statement before police (Ex. D-10) it is clear that on hearing the news of death of her husband Kulwant Kaur tried to bum herself and when she was restrained from burning herself then she has said that she got the deceased murdered. On bare perusal of the statement it is clear that this extra-judicial confession is not voluntary. On reading Ex. D-10) it is clear that on hearing the news of death of her husband Kulwant Kaur tried to bum herself and when she was restrained from burning herself then she has said that she got the deceased murdered. On bare perusal of the statement it is clear that this extra-judicial confession is not voluntary. On reading Ex. D-1 statement of Brijendra that when Bahadur Singh told Kulwant Kaur that deceased and you sleep together and you have falsely informed that deceased has gone to Kamalpur then Kulwant Kaur tried to pour kerosene oil upon her in order to bum herself then people caught her then all the ladies and men went to the house of Bahadur Singh. Kulwant Kaur has. gone to some unknown place. She was saying that she will live with Ajit Singh and Pran Singh in a Gang and if any action is taken by anyone she will kill him. In another Ex. D-1 i.e. statement of Jaswant Singh S/o Bahadur Singh, he has said that when people enquired that when she was sleeping in his side how the deceased was murdered then Kulwant Kaur said that at this time only Jarnel Singh is dead and thereafter if anybody will blame her they will also meet the same fate and she said that she murdered her husband and after making the statement she poured kerosene oil upon her in order to bum herself. PW 1 Bahadur Singh in para 13 of the deposition has deposed that Kulwant Kaur has tried to bum herself. PW 3 Brijendra has also said in para 8 of his deposition that she burnt herself by pouring kerosene oil. PW 14 Jaswant Singh has also said that after making statement she tried to bum herself. Thus, the said statement is not voluntary statement and her statement is only in out of anger and such statement cannot be said to be voluntary and such extra-judicial confession cannot be relied upon for convicting her. 22. On failure to prove that Ajit Singh was having illicit relations with appellant Kulwant Kaur no motive is established. The recovery of 'Tonka' alone will not be sufficient unless prosecution has proved that the said 'Tonka' was the weapon of offence. Dr. Mahesh Singh (PW 16) has deposed that said injury cannot be caused by the 'Tonka'. 22. On failure to prove that Ajit Singh was having illicit relations with appellant Kulwant Kaur no motive is established. The recovery of 'Tonka' alone will not be sufficient unless prosecution has proved that the said 'Tonka' was the weapon of offence. Dr. Mahesh Singh (PW 16) has deposed that said injury cannot be caused by the 'Tonka'. In Para 6 of his deposition he has deposed that the breadth of Article 1 is wider than the injuries caused on the body of deceased. Therefore prosecution has failed to establish that the said 'Tonka' was used in commission of offence. The prosecution has particularly failed to prove that the offence was committed in the house of larnel Singh. No blood marks were found on the seized earth. Therefore, prosecution has failed to prove. 23. Thus, it is not established that the incident took place inside the house of Kulwant Kaur. The chain of circumstances is not established. In the absence of proving each and every chain of circumstances conviction is bad in law and as discussed above the appeal succeeds and is allowed. Appellants are acquitted of charges. They should be released forthwith if not required in any other case. Their bail bonds and sureties are discharged.