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2007 DIGILAW 2148 (RAJ)

Natthu Ram v. State of Rajasthan

2007-11-05

BHAGWATI PRASAD, DEO NARAYAN THANVI

body2007
JUDGMENT 1. - This appeal is directed against the judgment dated 22.4.1982 passed by the learned Additional Sessions Judge, Raisinghnagar, whereby, he acquitted accused Kalu for offence under Sections 302, 201 and 404 l.I.C. read with Section 34 I.P.C. along with accused Natthu Ram for offence under Section 201 I.P.C. read with Section 34 I.P.C. but convicted accused-appellant Natthu Ram for offence under Section 302 I.P.C. and sentenced him to imprisonment for life and to pay a fine of Rs. 100/-, in default of payment of fine to further undergo one month's rigorous imprisonment. Accused appellant Natthu Ram has also been convicted for offence under Section 404 I.P.C. and sentenced to one year's rigorous imprisonment and to pay a fine of Rs. 100/-, in default of payment of fine to further undergo one month's rigorous imprisonment. 2. Charge against accused appellant Natthu Ram was that he along with co-accused Kalu committed murder of deceased Khema Ram at village Lalgadiya and destroyed the dead body by throwing it in the Rajasthan Canal and also snatched Rs. 4000/- from deceased Khema Ram. The report of the incident was lodged at Police Station Suratgarh on 17.3.1980 by one Nanu Ram, wherein, it was alleged that his brother who was having Rs. 4000/- with him did not return till 23.2.1980. lie stayed there for two days at Village Birmana but he did not return. The police registered the report of missing but later on, upon the report of Nanu Ram on 1.4.1980, a criminal case was registered for offence under Section 364 I.P.C. During investigation, police came to know that accused Kalu and Natthu Ram (present appellant), committed murder of deceased Khema Ram and throw his dead body in the Rajasthan Canal. The police arrested these two accused and on their information, blood stained clothes, soil and lathi piece were recovered. On the basis of recovery, extra-judicial confession of the accused appellant and the evidence of last seen, accused appellant was convicted as indicated above. 3. We have heard learned counsel for the appellant, learned Public Prosecutor and gone through the record of the case. On the basis of recovery, extra-judicial confession of the accused appellant and the evidence of last seen, accused appellant was convicted as indicated above. 3. We have heard learned counsel for the appellant, learned Public Prosecutor and gone through the record of the case. Though, the case of the present accused appellant Natthu Ram and of co-accused Kalu was on the identical evidence, but the learned Sessions Judge acquitted accused Kalu on the ground that the blood found on the clothes of accused Kalu was not proved to be of human blood and it was also not proved that the site which was pointed out by the accused was correctly proved by the prosecution witnesses. So far as the blood taken of eight items, out of which, no blood was detected on the blood smeared soil but it was detected on broken piece of lathi, bora, dhoti, two kamij and two payzamas. However, looking to the quantity of the blood to be shown on the dhoti and kamij, it was not forwarded to the Serologist for serological examination and rest of the items were forwarded for serological examination. In report Ex.P.- 45, in which, it was found that Item Nos. 7 and 8 i.e. a broken piece of lakari and Chhathi (Bora) are stained with human blood and Item Nos. 9 and 10 i.e. Kamij and Payzama are disintegrated and their origin cannot be determined. As per the statement of Investigating Officer, Kamij and Payzama were recovered at the instance of accused Kalu Ram vide Ex.P.-8 and dhoti and kamij were recovered at the instance of present accused appellant Natthu Ram vide Ex.P-7. When no blood was found on Kamij and Payzama as held by the learned Sessions Judge, then how the learned Sessions Judge distinguished the case of accused appellant Natthu Ram and connected him with blood on dhoti and kamij, which were even not forwarded to the Serologist. Therefore, the finding with regard to the blood is perverse and cannot be sustained. As regards piece of lakri which is said to have been recovered vide Ex.P.-lO, it was of course stained with human blood but the soil from where it has been taken was not smeared with blood as per the report of the Chemical Examiner Ex.P.-44. Therefore, the finding with regard to the blood is perverse and cannot be sustained. As regards piece of lakri which is said to have been recovered vide Ex.P.-lO, it was of course stained with human blood but the soil from where it has been taken was not smeared with blood as per the report of the Chemical Examiner Ex.P.-44. Further whether this blood found on the piece of lakri was of the accused or of the deceased is also not proved because neither the dead body of the deceased nor the blood group on the piece of lakri was found to be of accused appellant Natthu Ram vide Serological Report Ex.P.-45. In this way, the recovery does not help the prosecution to bring out the case against accused appellant Natthu Ram, which is said to have been made by digging soil from open place. 4. As regards extra-judicial confession, we have gone through the evidence of PW-5 Dhanna Ram, who took accused appellant Natthu Ram to the village Panchayat, where he said to have made extra-judicial confession. In the cross-examination, he has admitted this fact that extra-judicial confession was made on being given threat by the Panchayat to the accused appellant and this witness has also said that Panchayat threatened'accused appellant Natthu Ram about Rs. 4000/- which deceased was having with him and said to have been taken by accused from the deceased. In our view, this type of extra-judicial confession and that to after a lapse of more than one and a half month of the incident cannot be said to be sufficient for the purpose of conviction. The evidence of other witness about the extra-judicial confession namely Nanu Ram PW-6 cannot be accepted because he has also narrated about the extra-judicial confession of Kalu, who has been acquitted by the learned Sessions Judge. PW-7 Surja Ram is also the witness of Panchayat but he has been declared hostile. PW-8 Jagmala Ram is the member of Panchayat who says about the extra-judicial confession of accused appellant Natthu Ram but did not say anything about accused Kalu. Another important witness of this Panchayat is PW-9 Mamraj, who was the Sarpanch at the relevant time but he has given casual statement of extra-judicial confession and said nothing about accused Kalu. PW-8 Jagmala Ram is the member of Panchayat who says about the extra-judicial confession of accused appellant Natthu Ram but did not say anything about accused Kalu. Another important witness of this Panchayat is PW-9 Mamraj, who was the Sarpanch at the relevant time but he has given casual statement of extra-judicial confession and said nothing about accused Kalu. In this way, the evidence of Panchayat before whom the extra-judicial confession said to have been made is in corroborative and solely on the basis of such weak type of extra- judicial confession particularly when the words used by the accused in making such confession arc not reproduced as far as practicable finding of conviction arrived at by the learned Sessions Judge cannot be sustained by virtue of Section 24 of the Evidence Act. Even otherwise, such confession cannot be the sole basis for conviction in the absence of other circumstantial evidence. 5. Next is the evidence of last seen, it is alleged by PW-4 Bega Ram that accused appellant was last seen with deceased. He has stated that he went to the Dhani of Rati Ram with deceased Khema Ram and accused Natthu Ram from the house of Nanu Ram and purchased wool beg and went at the R.D. bridge and took tea with the Chowkidar and came back from there to his village 1 larisinghpura, whereas accused appellant Natthu Ram and Khema Ram went to the village Birwana on tractor. From this version, it appears that there was an important evidence of tractor driver, Nanu Ram, Rati Ram and the Chowkidar, out of which, neither Rati Ram nor Chowkidar nor the tractor driver have been produced. Only Nanu Ram has been produced as PW-6, who is the elder brother of deceased Khema Ram and he has said that he saw appellant Natthu Ram with Bega and Khema Ram near the bus stand and they came from the dhani of Raja ram Kumhar. When bus came, he went to village Bhagsar. He has developed a new theory. Rajaram Kumhar has also not been produced. This type of evidence of last seen is unreliable and unworthy, which inspires no confidence to arrive at the conclusion of guilt of the accused appellant, especially under the circumstances when the dead body has not been recovered and the motive of killing deceased by his own brother for mere Rs. Rajaram Kumhar has also not been produced. This type of evidence of last seen is unreliable and unworthy, which inspires no confidence to arrive at the conclusion of guilt of the accused appellant, especially under the circumstances when the dead body has not been recovered and the motive of killing deceased by his own brother for mere Rs. 4000/- cannot be sufficient to reach at the conclusion of guilt. Accordingly, the conviction recorded by the learned Sessions Judge deserves to be set aside. 6. Consequently, this appeal is allowed. The conviction and sentence of accused appellant Natthu Ram for offence under Section 302 and 404 I.P.C. is set aside. He is acquitted from the charges leveled against him. He is on bail. His bail bonds stand cancelled.Appeal allowed. *******