JUDGMENT
Deepak Verma, J.
1. This appeal has bee preferred by accused Raj Bahadur Singh against the judgment and order of conviction recorded in Sessions Trial No. 12/1990 by Second Additional Sessions Judge, Camp Beohari, District Shahdol, decided on 13-1-1992, wherein and whereby this appellant has been found guilty for commission of offences under Sections 302 and 201, IPC and has been awarded Life Imprisonment and one year R.I. respectively.
2. Prosecution story in short is as under:
On the intervening night of 27/28-9-89, Jamuna Singh, deceased was found dead in his own house. According to the prosecution, appellant had some doubt with regard to illicit relations between his wife and Jamuna Singh. Thus, with an intention to take revenge, he had hidden himself on the fateful night in the house of Jamuna Singh. When Jamuna Singh returned after watching Ramlila to his house and when he went off to sleep, this appellant took out a ‘tangi’ kept in the house of the deceased and caused injuries.
On hearing the sound, parents of Jamuna Singh, P.W. 2 Jaibhan Singh and P.W. 3 Chandramati, woke up and went to the room of deceased Jamuna Singh. The appellant pushed them and ran away from the spot. The appellant himself went to Police Station, Beohari and lodged a report that someone has caused murder of Jamuna Singh.
3. On the said First Information Report and the merg intimation Exhibits P-17 and P-7 respectively, an offence under Section 302, IPC, was initially registered against an unknown person. The body of deceased Jamuna Singh was sent for post-mortem. Exhibit P-1 is the post-mortem report proved by P.W. 1 Dr. A.K. Mishra.
4. On the strength of post-mortem report and the evidence of P.W. 1 Dr. A.K. Mishra, it has not been disputed before us that deceased Jamuna Singh had met with a homicidal death. Thus, this fact stands proved from the evidence available on record that Jamuna Singh was murdered and had met with a homicidal death.
5. After usual investigation charge-sheet was filed against this appellant. He abjured his guilt and submitted that he has falsely been implicated in the case. He further alleged that on account of undue pressure by the police on the witnesses, they are trying to falsely implicate him.
6. To bring home the charge against the appellant, prosecution examined 19 witnesses on its behalf. In defence appellant did not examine any witness.
7. On appreciation of evidence available on record, the learned Trial Court found both the charges proved against the appellant and, accordingly, found him guilty for commission of offences under Sections 302 and 201, IPC and awarded sentences as mentioned hereinabove. Hence, this appeal.
8. We have accordingly heard Shri V.K. Lakhera, learned Counsel for the appellant and Shri R.S. Patel, for the respondent/State. Perused the record.
9. Admittedly, P.W. 2 Jaibhan Singh and P.W. 3 Chandramati are the parents of deceased Jamuna Singh. After having gone through their evidence, it is crystal clear that they were not the eye-witnesses to the incident. In fact, they had also not identified the appellant as the assailant.
10. P.W. 2 Jaibhan Singh has deposed that he had seen a man going out of the house who looked like the present appellant. He could not depose with certainty that it was this appellant only who after having caused the fatal injuries to his son was seen running away from the house.
11. P.W. 3 Chandramati deposed that one injury by this appellant was caused on the body of her son Jamuna Singh and then he ran away from the spot after pushing her husband Jaibhan Singh. This fact does not find place in her statement recorded under Section 161, Cr.PC. Thus, it is obvious that she is now trying to improve her version so as to implicate the present appellant.
12. In view of the aforesaid discussion of these two witnesses, it leads us to nowhere that this appellant had hidden himself in the house of Jamuna Singh so as to cause injury to him in the midnight. They were neither eyewitnesses to the account nor they had clearly identified the person who had committed the murder. The identification, by these witnesses, of the appellant was very doubtful. Thus, no help is rendered on the strength of this evidence to the prosecution case.
13. As per prosecution story, after having lodged the report with the police on 28-9-1989, this appellant was absconding and was not even traceable to the police. He was found only on 3-10-89. P.W. 15 Chandra Bhushan Prasad Mishra and P.W. 16 Mahaveer Shukla have been examined to prove that accused had made an extra-judicial confession to them in the Panchayat Bhawan on 30-9-89.
If this appellant was absconding between 28-9-89 to 3-10-89 and was not even traceable to the police, how he could have made an extra-judicial confession to P.W. 15 Chandra Bhushan Prasad Mishra and P.W. 16 Mahaveer Shukla is not understandable to this Court. It is said that the said extra-judicial confession was made to these witnesses in the Panchayat Bhawan. This also appears to be highly improbable.
It was also known to the accused that the police is on search for him in connection with the murder of Jamuna Singh and, therefore, he would not have dared to enter the Panchayat Bhawan and that too with an intention to make an extra-judicial confession.
14. Apart from the above, it is also to be seen from the evidence of P.W. 15 Chandra Bhushan Prasad Mishra that the confession was made in the presence of the police when this appellant was in custody. Thus, the admissibility of such an extra-judicial confession itself is doubtful. It is also to be seen that this witness has not disclosed the reason as to why the appellant chose him to repose his confidence and to make his confession.
15. Evidence with regard to extra-judicial confession in order to be acted upon must stand the test of reproduction of the exact words of the confession made and it also should be shown by the prosecution as what was the reason or motive for the accused to make confession and as to whether the accused reposed confidence in the person before whom such a confession is said to have been made.
16. Similar is the evidence of P.W. 16 Mahaveer Shukla who was said to have been present at the time when extra-judicial confession was made by the appellant to P.W. 15 Chandra Bhushan Prasad Mishra, but both these witnesses have specifically denied that any extra-judicial confession was made by this appellant to them in the Panchayat Bhawan. According to them, the extra judicial confession was made by the appellant only when the appellant was in police custody at the police station. In this view of the matter, such an extra-judicial confession would be totally inadmissible.
17. It is also pertinent to mention that an extra-judicial confession is usually looked upon as weak type of evidence and, therefore, whenever it is sought to be relied upon, the burden lies upon the prosecution to show its trustworthiness. In the case in hand, the prosecution has failed to establish it. Moreso when, on the evidence of P.W. 15 Chandra Bhushan Prasad Mishra and P.W. 16 Mahaveer Shukla, it is clearly made out that the alleged extra-judicial confession was made by the appellant when he was in policy custody.
18. In view of the aforesaid discussion and the material evidence available on record, the prosecution has failed to establish that it was this appellant who had caused murder of Jamuna Singh. Apart from the aforesaid evidence, the case of the prosecution rested on circumstantial evidence, but the evidence available does not satisfy that inference of guilt sought to be drawn against him has been cogently and firmly established and circumstances are not of definite tendency unerringly pointing towards guilt of accused. Chain of circumstances is also not complete so that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. Thus, on the circumstances available on record, his conviction cannot be founded.
19. Admittedly, the appellant had not carried any weapon with him. He was also not aware that any weapon would be available in the house of the deceased with which he would be able to commit murder of Jamuna Singh. It is also not been established that this appellant was hiding himself in the house of the deceased and was waiting for him to return from Ramlila so as to commit his murder. If the prosecution story is to be believed, then it appears that the appellant had entered the house of Jamuna Singh at about 7 P.M. and then had murdered him at about 1.00 o’clock in the morning. This also appears to be highly improbable as it would not be possible for anyone to remain hidden in someone’s house, that too under a cot of one of the witnesses, for such a long number of hours.
20. The Serologist report is also not in favour of the prosecution as no grouping of blood could be performed due to its disintegration.
21. For the aforesaid reason we are of the opinion that the prosecution has failed to prove the guilt of the appellant beyond shadow of doubt. The appeal is, therefore, allowed. His conviction and sentences are hereby set aside.
22. Appellant Jamuna Singh is already on bail which was granted to him as he had remained in jail for more than 10 years. His bail bonds shall stand discharged.