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2004 DIGILAW 360 (RAJ)

Babu Lal v. State of Rajasthan

2004-03-11

FATEH CHAND BANSAL, SHIV KUMAR SHARMA

body2004
Judgment Shiv Kumar Sharma, J.-These appeals arise out of the judgment dated June 24, 2000 of the learned Special Judge SC/ST (Prevention of Atrocities Cases) Jaipur whereby the three appellants were convicted and sentenced as under: Mahendra Singh and Ishaq @ Yusuf : U/s. 302 IPC to undergo Imprisonment for life and fine of Rs. 500/-in default to further suffer simple imprisonment for three months. U/S 302/120B IPC to suffer Imprisonment for life and fine of Rs. 500/-in default to further suffer simple imprisonment for three months. U/S 201 IPC to undergo Rigorous Imprisonment for five years and fine of Rs. 500/-in default to further suffer simple imprisonment for three months. Babu Lal: U/s. 302/120B IPC to suffer Imprisonment for life and fine of Rs. 500/-in default to further suffer simple imprisonment for three months. U/s 201/120B IPC to undergo Rigorous Imprisonment for five years and fine of Rs. 500/-in default to further suffer simple imprisonment for three months. Substantive sentences were ordered to run concurrently. 2. Accusations that laid the foundation of the prosecution case demonstrate that the information was communicated on telephone on September 15, 1998 to Richhpal Singh, SHO Police Station Renwal (PW.26), that a dead body was lying in Metha river. Richhpal Singh along with other Police Officials rushed to the spot and recovered a dead body covered with sand. First Information Report was lodged under Section 302 and 201 IPC and investigation commenced. Dead body was identified as of Chetan Verma who was missing since September 11, 1998. The appellants were found involved in commission of offence, they were arrested and charge sheet was filed against them. In due course the case came up for trial before the learned Special Judge, SC/ST (Prevention of Atrocities Cases) Jaipur. Charges under Sections 302, 302/120B, 201, 201/120B IPC and Section 3(2)(5) SC/ST (Prevention of Atrocities) Act, 1989 were framed against the appellants who denied the charges and claimed trial. The prosecution in support of its case examined as many as 28 witnesses. In the explanation under Section 313 Cr.P.C, the appellants claimed innocence. No witness in defence was however examined. Learned Trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. 3. We have heard the rival submissions and closely scrutinised the material on record. 4. The case of prosecution rests squarely on circumstantial evidence. In the explanation under Section 313 Cr.P.C, the appellants claimed innocence. No witness in defence was however examined. Learned Trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. 3. We have heard the rival submissions and closely scrutinised the material on record. 4. The case of prosecution rests squarely on circumstantial evidence. It is well settled that the circumstances from which an inference as to the guilt of the accused is drawn, have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from these circumstances. 5. The circumstances highlighted to fasten the guilt of the appellants are as under: .(i) Death of deceased was homicidal. .(ii) Deceased was last seen in the company of the accused appellants. (iii) Extra judicial confession of the offence made by the accused appellants before the witness. (iv) Relationsbetween family members of deceased and sister of accused appellant Mahendra were strained and there was motive behind the murder. 6. It is contended by learned counsel for the appellants that since the chain of circumstances could not be established the appellants were wrongly held guilty. The court below has not considered the statements of Madhu Agrawal (PW.5) and Ram Dayal (PW.3) in right perspective. According to Madhu Agrawal the deceased was seen in the company of appellant Babu Lal on September 10,1998 at 8.00 PM, whereas Ram Dayal deposed that on September 11,1998 at 10.00 AM the deceased left the house for school. There is nothing on record which could suggest that after the deceased left house, he remained with the appellants. It is further contended that the testimony of Amar Chand in regard to extra judicial confession is highly doubtful. When the alleged confession was made on September 13, 1998, then why Amar Chand kept mum till September 21, 1998. It is next contended that the prosecution could not prove motive to kill Chetan Verma. Litigation between sister of Mahendra Singh and the family members of the deceased did not have direct bearing with the murder of deceased. 7. Per contra, learned Public Prosecutor supported the impugned judgment and contended that chain of circumstances is complete and involvement of appellants in the guilt is fully established. HOMICIDAL DEATH 8. In order to establish that the death of deceased was homicidal the prosecution examined Dr. 7. Per contra, learned Public Prosecutor supported the impugned judgment and contended that chain of circumstances is complete and involvement of appellants in the guilt is fully established. HOMICIDAL DEATH 8. In order to establish that the death of deceased was homicidal the prosecution examined Dr. Amar Singh Chaudhary (PW.l 1), who along with Dr. Renu Agrawal performed autopsy on the dead body. As per post mortem report (Ex.P-12) the death of deceased Chetan Verma was caused due to asphyxia by throttling (by rope). The testimony of Dr. Amar Singh could not be shattered in the cross examination. Thus the prosecution is able to establish that death of Chetan Verma was homicidal. LAST SEEN 9. The prosecution examined Madhu Agrawal (PW.5) and Dekha (PW.7) to show that on September 10, 1998 around 8.00 PM Chetan Verma and Babu Lal came to the house of Madhu Agarwal together, where they were planning to go somewhere. From the testimony of these witnesses it is established that deceased was in the company of appellant Babu Lal on September 10, 1998 around 8.00 PM. But on the other hand Ram Dayal (PW.3), uncle of deceased, deposed that Chetan Verma was very much in his house on September 11, 1998 till 10.00 AIVI. and he left the house for school at 10.00 ATVI on the said day. There is nothing on record to show that after Chetan Verma left the house for school he was seen in the company of appellants. EXTRA JUDICIAL CONFESSION 10. Amar Chand (PW.12) in his deposition stated that on August 13, 1998 appellant Babu Lai asked him to beat Chetan as he used to tease Ishaq. Again on August 15, 1998 Babu Lal met him with a rope of white colour to which Babu Lal intended to utilise in killing Chetan. Thereafter on September 13, 1998 Babu Lal and Ishaq made confession before Amar Chand in the market that they had killed Chetan. On carefully scanning the testimony of Amar Chand we find that Amar Chand informed the police about the said confession for the first time on September 21, 1998. Why Amar Chand did not inform about the confession to anybody till September 21, 1998, no explanation was offered. Conduct of Amar Chand in keeping silence for a period of eight days is highly unnatural and the testimony of Amar Chand does not inspire confidence. Why Amar Chand did not inform about the confession to anybody till September 21, 1998, no explanation was offered. Conduct of Amar Chand in keeping silence for a period of eight days is highly unnatural and the testimony of Amar Chand does not inspire confidence. It is inexplicable as to why the appellants would approach Amar Chand, who was neither related to the deceased nor had any concern with the appellants. 11. In State of Punjab vs. Gurdeep Singh (1), it was indicated that delay in recording an extra judicial confession before a person wholly unconnected with the police is always a matter of great suspect. 12. In State of Rajasthan vs. Raja Ram (2), their lordships of Supreme Court indicated in para No. 19 thus “An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. They value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, ,the time when the confession was made and the credibility of the witnesses who appear to be unbiased, not even remotely ininiical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility. 13. In Kavita vs. State of T.N. (3), it was held that conviction 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. 13. In Kavita vs. State of T.N. (3), it was held that conviction 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 thereof depends upon the veracity of the witness to whom it is made. 14. We have tested the testimony of Amar Chand on the touchstone of credibil- ity and acceptability and we find him most unreliable witness and his testimony cannot be accepted. MOTIVE 15. It is contended by learned public prosecutor that Chetan was murdered by the appellants because relations of family members of Chetan and sister of appellant Mahendra were strained. It is difficult to agree with this submission. Long drown litigation between the sister of one of the appellant and the family members of the deceased, would not lead us to conclude that Chetan was killed because of the strained relationship. 16. The circumstances indicated above do not form chain pointing towards the guilt of the appellants since there are many missing links in the prosecution evidence. The prosecution in our considered opinion could not establish the charges under Sections 302, 302/120B, 201 and 201/120B of Indian Penal Code against the appellants beyond reasonable doubt. Learned court below did not appreciate the prosecution evidence in right perspective and committed illegality in convicting and sentencting the appellants. 17. For these reasons we allow the appeals and set aside the judgment dated June 24, 2000 passed by learned Special Judge, SC/ST (Prevention of Atrocities) Cases Jaipur. We acquit appellants Mahendra Singh, Ishaq @ Yusuf and Babu Lal of all the charges. Appellants Mahendra Singh and Ishaq @ Yusuf are on bail. They need not surrender and their bail bonds stand discharged. Appellant Babu Lal, who is in judicial custody, shall be set at liberty forthwith, if not required to be detained in any other case.