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2005 DIGILAW 22 (RAJ)

RESHAM AU APPELLANT v. STATE OF RAJASTHAN

2005-01-04

B.PRASAD, GOVIND MATHUR

body2005
Judgment B. PRASAD, GOVIND MATHUR, J. ( 1 ) THESE two criminal appeals arise out of a decision of the court of Additional Sessions Judge (Fast Track) Hanumangarh in Criminal Case No. 60/2001 (6/99) dated 3. 7. 2001. ( 2 ) ON 5/7/1998 an FIR was lodged at Police Station Pilibanga by Murad Ali that he owns about fourty goats. His son Karim Bux takes these goats for grazing in the forest. As usual on the fateful day Karim Bux had taken those goats for grazing. At about 3 p. m. his brother-in law Sabir Ali, resident of Lawana chak, came to him and informed that a man wearing black T-Shirt brought his goats. When he inquired from him as to from where he obtained those goats, the person informed him that he has bought them for Rs. 35,000. 00. On being further questioning the man informed him that he is accompanied by Darshan Singh and he will give all these details to him and he went to call Darshan Singh and ran away. Further it was mentioned in the FIR that he followed him but the person made his escape good. After that he alongwith Sabir Ali, Kalu Khan and Hussain Khan made a search for Karim Bux at the bank of the canal, then at Burji No. 89 the turban and stick of Karim Bux were found lying and certain footmarks were also noticed. He expressed apprehension that some two persons have forcefully taken away the fourty goats and his son has been thrown in the canal. ( 3 ) ON this First Information Report investigation was conducted and after investigation charge sheet was sub-mitted. The case was committed to the court of Sessions which ultimately was transferred to the trial court where the trial was conducted. The case wholly rested on circumstantial evidence. It is noteworthy here that medical evidence is to the effect that there are no injury marks on the person of deceased Karim Bux and death occurred ex fade due to drowning. Thus, absence of any marks of violence on the person of the deceased leave many questions unanswered. The prosecution case goes to suggest that the deceased was seen in the company of the accused but there is no trustworthy evidence on record to show any circumstances of last seen of the accused with the deceased. Thus, absence of any marks of violence on the person of the deceased leave many questions unanswered. The prosecution case goes to suggest that the deceased was seen in the company of the accused but there is no trustworthy evidence on record to show any circumstances of last seen of the accused with the deceased. The trial court has relied on the circumstance that the turban and the stick was found on the bank and this establishes that it was not a case of accidental drowning but the man was pushed in the canal and in that process the turban and stick remained on the bank. The reasoning given by the learned trial court does not confirm to the rationality. Merely because that the turban and the stick remained on the bank could not mean that the man had not fallen accidentally. Marks of violence, marks of footsteps or any struggle on the bank had not been found. The trial court has expressed that they might not have been there because of heavy traffic of the persons on the bank of the canal but then the trial court erred in presuming that there were marks and they were not traced because of the traffic. The presumption of presence of marks is without any foundation. Thus, this circumstance of the trial court is also not affirming to the test of rationality. The strong circumstance which could have resulted into clinching issue against the accused persons was the alleged extra judicial confession. We find from the statement of PW-1 Shyam Mohd. The extra judicial confession as deposed by him that he inquired from the accused and the accused stated that they had pushed the son of Murad Ali in canal. The statement as such appears to be the statement made in cores. As the law of extra judicial confession has developed it has never stood to reason that a confession can be made in cores. Accused has been singled out by defending that he had personally spoken these words. It is not clear as to who out of the two accused persons made the statements first or separately or in what manner. When the meaning of extra judicial confession is not available the exact words have not been spoken what has been spoken in the confession of accused persons then to believe such extra judicial confession requires strong corroboration. It is not clear as to who out of the two accused persons made the statements first or separately or in what manner. When the meaning of extra judicial confession is not available the exact words have not been spoken what has been spoken in the confession of accused persons then to believe such extra judicial confession requires strong corroboration. In this case in cross examination the accused has admitted that in Ex. D/1 he had not stated in the manner in which he has made state-ment in the court. When the extra judicial confession as stated to be not mentioned in the police station statement in the manner in which it has been stated in the court then it is further weaken and such kind of weak statement is not enough to establish the circumstance of extra judicial confession. ( 4 ) THAT being the position the extra judicial confession as has been deposed by the PW-1 is hardly a convincing piece of evidence to sustain the conviction as recorded by the trial court. If the evidence of extra judicial confession is subtracted from the prosecution case then all other circumstances are only conjecture circumstances. They hardly have the characteristic of establishing a positive case of murder against the accused per-sons for which they have been convicted. Strangely this is not even the case of the prosecution that Karim Bux was mur-dered and drowned. The prosecution itself has a weak foundation to stand on the possibility of accidental fall. In the given circumstances where there are no marks of injuries on the person of the deceased the presumption of accidental death cannot be ruled out. That being the position the accused is entitled to benefit of doubt. The conviction recorded against the accused persons under Sections 302/34 IPC cannot be liable to be sustained. ( 5 ) ON the basis of evidence avai-lable on record. , the findings of the trial court can not be sustained. Both the appeals deserve to be allowed. In the result, the conviction recorded against the accused person under Sections 302/34 IPC is not liable to be sustained, and hence, set-aside. Resultantly the sentences awarded are also set aside. The accused appellants are in Jail. They may be released fortwith if not required in any other case. Appeal allowed.