JUDGMENT
Shiv Kumar Sharma, J.
1. 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. 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) Relations between 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. 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 AM. and he left the house for
school at 10.00 AM 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. 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 v. 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 v. 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 inimical 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 v. 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 lndian 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.