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2017 DIGILAW 2498 (RAJ)

Mokam Singh v. State of Rajasthan

2017-11-14

GOPAL KRISHAN VYAS, MANOJ KUMAR GARG

body2017
JUDGMENT : Manoj Kumar Garg, J. The instant criminal appeal has been filed by the accused-appellants Under Section 374 (2) Cr.P.C., 1973 against the judgment dated 11/07/1990 passed by Additional Sessions Judge, Barmer in Sessions Case No. 59/89 by which the learned Judge convicted and sentenced the accused-appellants as under :- 1. under section 302 IPC To Life Imprisonment with a fine of Rs. 200/-, in default of payment of fine, to further undergo one month rigorous imprisonment. 2. under section 201 IPC To seven years Rigorous Imprisonment with a fine of Rs. 100/-, in default of payment of fine, to further undergo fifteen days rigorous imprisonment. All the sentences were ordered to run concurrently. 2. The brief facts of the case are that on 22.08.1989 complainant Amb Singh (PW/10) filed a complaint at police station Shiv in which he alleged that his maternal uncle's (Mama) sister Sayar Kanwar was married with Mokam Singh. About two and half year after the marriage, her husband Mokam Singh, brother-in-law Tene Raj Singh and Bhar Singh started harassing her demanded dowry. About one month before the incident, when Sayar Kanwar was at her parental house, her husband Tene Raj Singh came there for taking her back but she refused to go with him. The complainant called Jograj Singh, who told Tene Raj Singh that in future if you will not harass Sayar Kanwar only then they will send Sayar Kanwar along with him. Upon giving the said undertaking, Sayar Kanwar was sent with Tene Raj Singh. On 23.08.1989 mother of Sayar Kanwar visited the complainant village and informed him that Chetan told her Sayar Kanwar was killed by her husband and his family members. On enquiry, the complainant came to know that all the accused had killed Sayar Kanwar on 22.08.1989 night and after her death, they hanged the body in a hut. On the next day morning, they cremated her dead body. On this report police registered a formal FIR at the police station Shiv which is marked Ex.P15. The police arrested all the three accused appellants and started investigation. 3. After due investigation, police filed a challan against accused persons namely Mokam Singh, Shri Bhar Singh, Tene Raj Singh. The challan was presented before the Court of Munsiff and Judicial Magistrate, First Class, Barmer. The police arrested all the three accused appellants and started investigation. 3. After due investigation, police filed a challan against accused persons namely Mokam Singh, Shri Bhar Singh, Tene Raj Singh. The challan was presented before the Court of Munsiff and Judicial Magistrate, First Class, Barmer. Thereafter the case was transferred to the court of Additional Sessions Judge, Barmer where the charges of the case were framed against all the three accused persons wherein they denied the charges and pleaded for trial. 4. At the trial, the prosecution examined as many as 17 witnesses in all and exhibited certain documents. Thereafter the statements of the accused persons were recorded under section 313 Cr.P.C., 1973 in which they adduced that in their society, there is no question of dowry demand and they have been falsely implicated by the prosecution witness. They further mentioned that in their society, the girls are less in number so there is no question of any dowry. No witness was examined on defence side. 5. At the conclusion of the trial, the learned Additional Sessions Judge, Barmer vide judgment dated 11.07.1990 convicted the present appellants for the offence under Sections 302 and 201 IPC and passed sentence as mentioned earlier. The appellants challenged their conviction by way of filing this above appeal. 6. The learned counsel for the accused-appellants has vehemently argued that a false case has been roped against the present appellants as in their society the girls are less in number so there is no question of demand of dowry and in the written report also no averment for demand of dowry and the date and time was mentioned. He further argued that occurrence has taken place on 22.08.1989 whereas the FIR has been lodged by the complainant Amb Singh on 25.08.1989 i.e. after a delay of three days. This delay has not at all been explained by the prosecution. He further mentioned that in the FIR the mother of deceased mentioned that she was informed by Chetan about the murder of her daughter by her in-laws. Chetan has been examined as PW/7 but was declared hostile by the prosecution. This delay has not at all been explained by the prosecution. He further mentioned that in the FIR the mother of deceased mentioned that she was informed by Chetan about the murder of her daughter by her in-laws. Chetan has been examined as PW/7 but was declared hostile by the prosecution. Learned counsel for the appellants argued that this case is based upon circumstantial evidence of extra judicial confession and police recorded the statement of Ladhu Singh (PW/11) in which it is stated by him that all the accused appellants met him on 29.08.1989 and made confession but for the first time after five days of confession, statements were made, therefore, there is no question to believe his testimony because he is a created witness and theory of extra judicial confession is very weak type of witness to connect the present appellants with the alleged crime. 7. Learned counsel further argued that cremation of the deceased Sayar Kanwar had already been done and thereafter her bones were recovered from the place of cremation, weapons recovered by the police were also sent for FSL report but no FSL report is submitted by the prosecution during the trial, therefore, it is obvious that prosecution has failed to prove its case beyond reasonable doubt and therefore, the accused appellants deserve to be acquitted in this case. 8. Per contra, learned Public Prosecutor argued that this is a case of circumstantial evidence and without informing the parents of the deceased, the accused appellants cremated the dead body of Sayar Kanwar and this is a strong presumption against the accused appellants to convict them. He further argued that all the accused appellants gave extra judicial confession before PW/11 Ladhu Singh. So, the case is duly proved against the accused appellants. Hence, the appeal of the accused appellants may be dismissed. 9. Heard learned counsel for the accused-appellants as well as learned public prosecutor and perused the judgment impugned as also gone through the record of the case. Admittedly, this is a case based on circumstantial evidence and keeping in forefront the principles enunciated by the Supreme Court we have to see whether the prosecution has successfully established the circumstantial evidence to prove the complicity of the accused. 10. Admittedly, this is a case based on circumstantial evidence and keeping in forefront the principles enunciated by the Supreme Court we have to see whether the prosecution has successfully established the circumstantial evidence to prove the complicity of the accused. 10. The Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116 has enumerated the following golden principles in a case based on circumstantial evidence, which reads as under : "(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." 11. Thus, the Hon'ble Supreme Court has categorically held that the prosecution is required to prove its case beyond reasonable doubt so as to hold the accused guilty, if the case is based on circumstantial evidence. Referring to the decision in Shivaji Sahebrao Bobde v. State of Maharashtra ( AIR 1973 SC 2622 : (1973) 2 SCC 793 ), it was opined that it is a primary principle that the accused must be and not merely may be guilty before a court can convict and mental distance between 'may be' and 'must be' is lying and divides vague conjectures from sure conclusions. Thereafter, the Hon'ble Bench proceeded to lay down that the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; that the circumstances should be of a conclusive nature and tendency; that they should exclude every possible hypothesis except the one to be proved; and that there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused. 12. The similar view has been reiterated by the Hon'ble Supreme Court in Rama Reddy Rajesh Khanna Reddy & Anr. v. State of A.P. reported in (2006) 10 SCC 172 . 13. In Harish Chandra Ladaku Thange v. State of Maharashtra ( AIR 2007 SC 2957 ), while dealing with the validity of inferences to be drawn from circumstantial evidence, it has been emphasized that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or guilt of any other person and further 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 connect with the principle fact sought to be inferred from those circumstances. 14. In State of U.P. v. Ashok Kumar Srivastava ( AIR 1992 SCW 640 : AIR 1992 SC 840 ), the emphasis has been laid that it is the duty of the Court to take care while evaluating circumstantial evidence. If the evidence adduced by the prosecution is reasonably capable of two inferences, one in favour of the accused, must be accepted. That apart, the circumstances relied upon must be established and the cumulative effect of the established facts must lead to a singular hypothesis that the accused is guilty. 15. In Ram Singh v. Sonia & Ors. ( AIR 2007 SC 1218 ), while referring to the settled proof pertaining to circumstantial evidence, the Hon'ble Supreme Court reiterated the principles about the caution to be kept in mind by Court. 15. In Ram Singh v. Sonia & Ors. ( AIR 2007 SC 1218 ), while referring to the settled proof pertaining to circumstantial evidence, the Hon'ble Supreme Court reiterated the principles about the caution to be kept in mind by Court. It has been stated therein that in a case depending largely upon the circumstantial evidence, there is always a danger that conjectures of suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events, have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts. 16. In Ujagar Singh v. State of Punjab ( (2007) 13 SCC 90 ), after referring to the aforesaid principles pertaining to evaluation of circumstantial evidence, the Hon'ble Supreme Court stated that it must nonetheless be emphasized that whether a chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted. 17. Keeping in view the aforesaid principles, we have scrutinized and evaluate the circumstances to consider whether the said circumstances establish the guilt of the appellant-accused beyond reasonable doubt. 18. Chanan Singh (PW/1) was examined in court and he is merely a Motbir in this case. Jusub Khan (PW/2) was also a Motbir in this case. Agraram was examined as PW/3 and he mentioned that he was present at the cremation site when the dead body was cremated. He mentioned that at that time Mokam Singh, Bhar Singh and Tene Raj singh were also present but he was declared hostile by the prosecution. PW/4 Viradhdan has mentioned in his statement that brother-in-law came to his village for calling Sayar Kanwar but Sayar Kanwar's mother refused to send her daughter with him because they were harassing her daughter for dowry. They all were present in the house of Jugat Singh where Jograj Singh and Chetan were also present. The brother-in-law of Sayar Kanwar stated that if they assure that they will not harass her, only then Sayar Kanwar will be sent along with him. They all were present in the house of Jugat Singh where Jograj Singh and Chetan were also present. The brother-in-law of Sayar Kanwar stated that if they assure that they will not harass her, only then Sayar Kanwar will be sent along with him. In cross-examination, he admitted that in their society there is no question of dowry demand. PW/5 Jograj Singh has stated that he knows Sayar Kanwar and the accused persons used to harass her for dowry. He along-with Viradhdan, Chetan and few other persons were present where brother-in-law of Sayar Kanwar stated that she was sent along with them only on the basis of their undertaking that they will not harass Sayar Kanwar in future. In cross-examination he mentioned that he is the brother of Sayar Kanwar. PW/6 Gemar Singh has categorically stated that he was present when the dead body of Sayar Kanwar was cremated. In Cross-examination he mentioned that he had not seen any injury on the body of deceased and in their society they do not take dowry. On the contrary he mentioned that the bridegroom's family gives money to groom's family and then the groom takes the bride in his house as in their society the girls are less in number. PW/7 Chetan is a very important witness and his name is mentioned in the FIR. He has been examined but was declared hostile by the prosecution. PW/8 Smt. Saku is stated to be the mother of the deceased. She mentioned that her younger daughter Sayar Kanwar was married with Mokam Singh and in spite of being given sufficient dowry, the accused person started harassing for bringing more dowry. Whenever Sayar Kanwar visited her house, she used to narrate this type of incident. Her mother called Birdhdan, Chetan and Jograj Singh told that she will send her daughter to their house only if they assure that in future they will not harass her. However, later she came to know that Sayar kanwar was murdered by the accused persons. In her cross examination she admitted that two months before the death, her daughter told her about harassment but she did not lodge any type of report. PW/9 Balwant Singh is said to be the brother of the deceased. However, later she came to know that Sayar kanwar was murdered by the accused persons. In her cross examination she admitted that two months before the death, her daughter told her about harassment but she did not lodge any type of report. PW/9 Balwant Singh is said to be the brother of the deceased. He mentioned that his younger sister Sayar Kanwar was married with Mokam Singh and sufficient dowry was also given at the time of marriage but he came to know that the accused persons started harassing Sayar Kanwar and Chetan informed us that his sister was killed by the accused appellants. In cross-examination he admitted that when he went to his sister's matrimonial home, the accused appellants refused to send her sister with him. This fact was not narrated to his mother as well as to Jograj Singh and Virdhdan. He further admitted that this case was lodged due to the pressure of Jograj and Amb Singh. PW/10 Amb Singh mentioned that Sayar kanwar was his maternal uncle's daughter and she was married with Mokam Singh. He too came to know that she was harassed by her in-laws for more dowry and that the accused appellants killed Sayar Kanwar. He went there and a written report was filed before the police. In cross examination he admitted that Mokam Singh is aged about fifty years and Sayar Kanwar was only twenty years old since in their society the girls are less in number, so if boys were not found then they arrange marriages with old persons also. At the time of marriage, sufficient dowry was given. He further mentioned that due to heavy rain, he lodged delayed FIR. PW/11 Ladhu Singh has mentioned in his cross examination that Sayar Kanwar was married with Mokam Singh. After the marriage he came to know that all the accused persons started harassing Sayar Kanwar. On 29.08.1989 all the accused appellants met him and they made confession that they killed Sayar Kanwar. In cross examination, he admitted that he gave the statement for the first time before the police on 04.09.1989 i.e. after five days of the confession made by the accused appellants before him. PW/12 Ms. Lunkanwar has been declared hostile by the prosecution. PW/13 Ancha has also declared hostile by the prosecution. PW/14 Rawataram is a constable. He was only a carrier in this case. PW/15 Sujanaram is a S.H.O.. PW/12 Ms. Lunkanwar has been declared hostile by the prosecution. PW/13 Ancha has also declared hostile by the prosecution. PW/14 Rawataram is a constable. He was only a carrier in this case. PW/15 Sujanaram is a S.H.O.. He examined the witness and filed challan against the accused appellants. PW/16 Hanuman Singh is an Investigating Officer. PW/17 B.R. Nimbawat, Dy. S.P. has recorded two statement and gave the file for further investigation to another officer. These are the prosecution witnesses and no witness was examined on the defence side. 19. Since it is a case of circumstantial evidence, the prosecution is required to prove the complete chain of circumstances against the accused appellants so as to hold them guilty, then appellants can be convicted otherwise not. In this case the occurrence took place on 22.08.1989 whereas the written report was submitted on 28.08.1989 i.e. after a delay of three days and this delay has not been explained by the prosecution. The witnesses alleged in their statements that the accused appellants used to harass Sayar Kanwar for dowry but in their cross examination, admitted that in their society there is no question of dowry demand because girls are less in number. In the family of boys they have to pay money to the family of girls for solemnizing marriage, thereof re, there is no question for demand of dowry and harassment by accused appellants to the deceased. Another aspect which has been relied upon by the prosecution is that without informing the parents of the deceased, the accused appellants cremated the dead body of Sayar Kanwar. In this regard, it relevant to note that the independent witnesses PW/3 Agraram clearly speaks in his statement that at the time of cremation, the parents were very much present along with other persons of village which shows that they were informed, therefore, they were present at the time of cremation. However, after considerable delay, report was submitted before the police alleging that they were not informed before cremation by the accused appellants but this version given by the prosecution witnesses is seriously doubtful, therefore, no reliance can be placed upon such statements which runs contrary to each other. However, after considerable delay, report was submitted before the police alleging that they were not informed before cremation by the accused appellants but this version given by the prosecution witnesses is seriously doubtful, therefore, no reliance can be placed upon such statements which runs contrary to each other. Another circumstance relied by the trial Judge was that recovery of weapons and some ashes of deceased body which were taken and were sent to the FSL but no FSL report was produced by the prosecution in this regard. So recovery in this case does not connect the accused appellants at all with the alleged crime. PW/6 Gemarsingh has also admitted that he has not seen any injury on the dead body of the deceased and he has admitted that he heard that Sayar Kanwar died due to natural death. Chetan (PW/7) is a very important and material witness in this case and his name was mentioned in the FIR itself but he has been declared hostile by the prosecution. So, there is no connecting evidence against the accused appellants to convict the appellants on the basis of circumstantial evidence beyond reasonable doubt. 20. So far as extra-judicial confession made by the accused appellants before PW/11 Ladhu Singh is concerned, the occurrence has taken place on 22.08.1989 and it has been mentioned by Ladhu singh that all the three accused persons met him on 29.08.1989 and they made confession before him but he has given the statement before the police for the first time on 04.09.1989 i.e. after five days of the confession made by the accused appellants before him. So, the story of the extra judicial confession made by Ladhu Singh is also very much doubtful. 21. With regard to extra-judicial confession, the Hon'ble Supreme Court summarized the law in the case of Sahadevan & Anr. v. State of Tamilnadu (2012) 6 SCC 403 ) and has held thus: "It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak peace (sic piece) of evidence. Wherever the court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. Wherever the court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra-judicial confession suffers from very material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a contention. In such circumstances, the court would be fully justified in ruling such evidence out of consideration." 22. In Balwinder Singh v. State of Punjab ( AIR 1987 SC 350 ), the Hon'ble Supreme Court has stated that an extra-judicial confession by itself from nature is a week type of evidence and requires appreciation with a great deal of care and caution. Where an extra-judicial confession is surrounded by the suspicious circumstances, its credibility becomes doubtful and it looses its importance. 23. In Pakkiri Sami v. State of Tamil Nadu ( (1997) 8 SCC 158 ), the Hon'ble Supreme Court held as under: "It is well settled law that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession by its very nature is 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." 24. Again in Kavitha v. State of Tamil Nadu (1998) 6 SCC 108 ), the Hon'ble Supreme Court stated the dictum that: "There is no doubt that convictions can be based on extra-judicial confession but it is well settled that in the very nature of things, it is a weak peace (sic 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." 25. While explaining the dimensions of the principles governing the admissibility and evidentiary value of extra-judicial confession, the Hon'ble Supreme Court in State of Rajasthan v. Rajaram ( (2003) 8 SCC 180 ), stated the principles that: "An extra judicial confession is voluntary, if true and made in a fit state of mind can be relied upon by the Court. The contentions will have to be proved like any other fact. The contentions will have to be proved like any other fact. The value of the evidence as to confine, like any other evidence, depends upon the veracity of the witness to whom it has been made." 26. In view of the above case laws, it is clear that an extrajudicial confession is a weak type of evidence. Though it can be made the basis of conviction but due care and caution must be exercised by the courts to ascertain the truthfulness of the confession. Before the court proceeds to act on the basis of an extra judicial confession, the circumstances under which it is made and the persons to whom it is made, must be considered along with two rules of caution. First, whether the evidence of confession is reliable and second, whether it has corroboration. 27. If the accused appellants had made such type of extra judicial confession before PW/11 Ladhu Singh, then in the normal course, a prudent person would have immediately informed the police but in this case, he gave statement before the police for the first time on 04.09.1989 i.e. after five days of the confession made by the accused appellants before him. 28. In view of the above discussion it is a case in which prosecution has failed to prove its case beyond doubt on the basis of circumstantial evidence, therefore, while following the aforesaid principles of law laid down by the Hon'ble Supreme Court, this appeal deserves acceptance. 29. Consequently, the instant criminal appeal is allowed. The finding of conviction and sentence awarded by the learned Additional Sessions Judge, Barmer against the accused appellants in Sessions Case No. 59/89 vide judgment dated 11/07/1990 is hereby set aside and accused appellants are acquitted from the charges levelled against them. The accused-appellants are on bail. Their bail bonds stand discharged. 30. The record of the trial court be sent back forthwith.