Allahabad High Court
Jirjodhan vs State Of U.P. on 25 April, 2019
Equivalent citations: AIRONLINE 2019 ALL 661
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment reserved on 18.4.2019 Judgment delivered on 25.4.2019 Court No. - 1 Case :- CRIMINAL APPEAL No. - 2133 of 1984 Appellant :- Jirjodhan Respondent :- State Of U.P. Counsel for Appellant :- Shiv Naresh Singh,Shiv Naresh Singh Counsel for Respondent :- D.G.A.,A.G.A. Hon'ble Ramesh Sinha,J.
Hon'ble Dinesh Kumar Singh-I,J.
(Delivered by Hon'ble Dinesh Kumar Singh-I, J.)
1. Heard Sri Sharad Kumar Srivastava and Sri Shiv Naresh Singh, learned counsel for the appellant and Sri J.P. Tripathi, learned A.G.A. for the State.
2. This criminal appeal has been preferred against the judgment and order dated 30.7.1984 passed by 3rd Additional Sessions Judge, Mirzapur in S.T. No. 7 of 1984 (State vs. Jirjodhan) whereby the accused appellant has been convicted under section 302 IPC and has been sentenced with life imprisonment.
3. In brief, the facts of the case are that the informant Hub Lal (PW5) son of Sarjoo Ram, resident of village Karhiya Tola Bodhadeeh, Police Station Dudhi, District Mirzapur gave a written report at police Station Dudhi stating therein that his brother Ram Dular (deceased) used to graze his buffaloes in Avradandi Mauja at Joona Bathan place, 6 kms. away from his village Karhiya Tola Bodhadeeh and used to sleep there only. Everyday, someone from amongst the family members used to take his food to the said place and used to bring milk from there. On 21.11.1983 when PW5 and his brother went there with food for his brother at about 7.00, he saw that his brother was caused injuries by sharp edged weapon at his face by which he had died. Then he sent his brother Indra Dev to village to give information, where-after, his father Sarjoo, Bhondu, Jeevdhan and Chaukidar and many others came there and saw the occurrence. It is further mentioned that the informant side and Brij Mohan (accused), resident of Karhiya Tola Bodhadeeh, P.S. Dudhi, District Mirzapur were having enmity with respect to land of Araji no. 236 area five biswas and ten dhoors which was situated in village Bodhadeeh which was being cultivated by the complainant side and it is further mentioned that about 8-10 days prior to this occurrence, the cattle of informant side which were being grazed by Ram Dular (deceased) had caused some damage to the crop of Kurvi of accused Ram Chandar son of Bhola and Dasai son of Dharman, as a result of which the accused side had abused Ram Dular and had threatened him with his life, therefore, the informant had suspicion that his brother was murdered by some sharp edged weapon by accused Brij Mohan, Ram Chandra and Dasai.
4. On the written report Exhibit Ka-1, case crime no. 158 of 1983 was registered at police station Dudhi on 21.11.1983 at 1700 hours against three accused persons namely Brij Mohan, Ram Chandar and Dasai by Head Constable 96 Girja Shankar Singh who prepared chik FIR Exhibit Ka-3 and made entry of this case in G.D. Exhibit Ka-4 dated 21.11.1983 at report no. 22 time 1700 hours.
5. The investigation was handed over to S.I. Raj Narayan Singh (PW9) on 21.11.1983, who recorded the statement of Hub Lal at the police station and thereafter proceeded towards place of incident along with Constable Ashok Kumar, Constable Radha Kant Yadav, Constable Wasikal and Bhola Chawkidar at about 12.00 night. Next day in the morning he prepared inquest report of the deceased Ram Dular son of Sarjoo which is Exhibit Ka-5; prepared photonash which is Exhibit Ka-6; sealed the dead body and prepared its sample seal which is Exhibit Ka-7; handed over the dead body in sealed conditions by preparing the challan in his handwriting which Exhibit Ka-8, to Constable Ashok Kumar Singh and Chowkidar Bhola for conducting of post-mortem along with letter Exhibit Ka-9 in his handwriting. Thereafter, he took in possession the clothes of the deceased i.e. pieces of blood-stained blanket and prepared its Fard recovery which is Exhibit Ka-10. He took in possession the pieces of rough clothes (Tat) blood-stained puwal and prepared its Fard which is Exhibit Ka-10. He made spot inspection and prepared site plan which is Exhibit Ka-11. About 200 yards away towards east from the place of occurrence, is situated the house of Jirjodhan where he tried to find out about him but could not be found where-after he went to police station and thereafter further investigation was taken over by SHO.
6. S.O. Jirjodhan Rai (PW10) took over the investigation of this case on 23.11.1983 where-after, he proceeded to the place of incident and inquired there about the named accused and made search of their houses but nothing could be found and on 24.11.1983 he went to Sadar, Mirzapur due to important work. On 25.11.1983 and 26.11.1983 nothing could be known and when he was about to begin investigation on 27.11.1983, Kuldeep son of Sarjoo met him at the police station who was interrogated by him at the police station itself and recorded his statement, thereafter he along with companion police officer again proceeded to the place of incident and when he reached the place where new hospital was being constructed (near gram Muriyar), he met there Uma Shankar Prasad and interrogated him also, thereafter he reached village Karhiya at Ex-Pradhan's place at about 8.30 p.m. and at his house called Bhagat son of Tapsi Yadav and witness Keadar Singh and interrogated them. From their interrogation, the name of accused Jirjodhan has come into light. Due to it being night hours, he stayed at the house of Ex-Pradhan only from whom he came to know about the name of the accused. On 28.11.1983, he took along S.I. and Constable with him and also along with the Ex.Pradhan and reached the place of incident. As soon as, they reached on the bank of river Kanhar, Deputy Pradhan Bachchu Ram, he was also taken along. Thereafter, they all proceeded towards the house of accused Jirjodhan and when they reached near the well situated near the house of Jirjodhan, who is present in Court, was sitting in front of his house and tried to flee from there seeing the police. Thereafter, he recorded the statement of the accused. He stated that he could get the weapon used in commission of this occurrence, recovered. Thereafter, on this information, keeping the accused in custody, they all proceeded and the accused after reaching near his Chhappar, gave out one axe which was kept in Chhappar which was taken in possession. When it was inspected, dry blood-stain was found on the said axe which is material Exhibit 1 and its recovery memo was prepared by him which is Exhibit Ka-14 and also the site plan of the place of its recovery was made which was Exhibit Ka-15. The place where the axe was recovered, there was a Chhappar under-neath it there was a cot where the accused was living alone. The place where axe was given, the said axe was not visible easily. Thereafter, he recorded statement of the witnesses of Fard and after taking the said articles along with the accused, came to the police station and handed it over there and its entry in GD was made on 28.4.1983 at report no. 16 time 1900 hours. After concluding the investigation, he submitted charge sheet against the accused Jirjodhan on 10.12.1983, which is Exhibit Ka-16.
7. On the basis of evidence on record, charge was framed against the accused-appellant on 2.4.1984 under section 302 IPC to which he pleaded not guilty and claimed to be tried.
8. In order to prove its case, from the side of prosecution, Bhagat as PW1, Uma Shankar as PW2, Bhikhari Ram as PW3, Kuldeep Prasad Yadav as PW4, Hub Lal as PW5, Dr. Jasvir Singh as PW6, Constable Ashok Kumar Singh as PW7, H.C. Girja Shankaer Singh as PW8, I.O. Raj Narayan as PW9, I.O. Jirjodhan Rai as PW10, Constable Kaleem Ullah Khan as PW11 and Constable Satya Narain Yadavv as PW12 have been examined.
9. Thereafter prosecution evidence has been closed and statement of accused was recorded under section 313 Cr.P.C. in which he took the plea of false implication although no witness has been examined in defence.
10. After considering the entire evidence on record and having heard both the sides, the learned trial court has convicted the accused-appellant under section 302 IPC and has sentenced him with life imprisonment, which has been challenged before us.
11. It has been argued by the learned counsel for the appellant that the accused was not named in the FIR and after considerable delay, his name has been found involved in the present occurrence on account of enmity with Ex.Pradhan Uma Shankar Prasad. No recovery was made from him. The weapon which is shown to have been recovered is absolutely false recovery. He is 85 years old person, who is lying in jail since 15.3.2019 as he was arrested on warrant issued against him. His name has appeared as an accused in the present case on the basis of extra judicial confession allegedly made by him before Ex.Pradhan. Further, it is argued that the main accused who were named in the FIR, all of them have been acquitted. Therefore, it is prayed that the appeal deserves to be allowed and the accused deserves to be acquitted.
12. On the other hand, learned A.G.A. has vehemently argued in support of the impugned judgment that the name of the appellant has come into light in extra judicial confession made by the accused in front of the house of Pradhan and coupled with that another strong piece of evidence against the accused is that 8 days after the incident, a blood-stained axe was recovered at his pointing out from Chhappar roof of his house which was found to contain dry blood which was tested and found to be of ''O' group. There is sufficient circumstantial evidence against him on the basis of which the trial court has arrived on the conclusion that only he was the person who could have murdered the deceased and hence he has been rightly held guilty and the appeal deserves to be dismissed.
13. In support of the prosecution case narrated above, PW1 Bhagat son of Tapsi, resident of village Gorhadeeh, P.S. Dudhi has stated in examination in chief that about seven months ago he had gone to purchase ox from Mauja Dheraika and when he was returning from there and reached near Bathan at about 3.00 p.m., he saw that accused Jirjodhan, who is present in court, was having quarrel with deceased Ram Dular and was abusing him. The accused was saying to the deceased that he gets his crops eaten by his cattle, you should remove your Bathan otherwise it would not be good for him. On the said day, Mustagees had got his animals graze the pulses of the accused, the accused had threatened him to avenge, then he had mediated both sides and the dispute was resolved. Thereafter, PW1 had come back home and thereafter he had gone in his relation for 3-4 days and when he returned from there he heard that Ram Dular had been murdered, then he had stated to the Investigating Officer about this quarrel which had happened between the deceased Ram Dular and the accused, then he had told about this quarrel to the brother of the deceased namely, Kuldeep. The Investigating Officer interrogated him.
14. In cross examination this witness has stated that the accused Jirjodhan resident of Mauja Mahuli which is situated about six kos away from the place of incident and about 1 ½ - 2 kos away would lie his house from the place of occurrence. On the next day of occurrence, the Inspector had come to the village or not, he cannot tell. He came to know about the same 3-4 days after the incident when he returned from the place of his relation through village Pradhan and other persons. The police had come to village and called him to the house of Ex.Pradhan where the Inspector was sitting. The name of Ex. Pradhan is Bhikhari but he had not seen Dasai and Ram Chandar there nor was there Jirjodhan at that time. He had been made free from the house of Pradhan by afternoon. He responded to the question as to whether the Inspector after having taken his statement had got signed it from him, to which he stated in the affirmative. Again he was enquired as to whether he had told about the quarrel which had happened between the deceased Ram Dular and Jirjodhan to any one else earlier prior to disclosing it to the Investigating Officer, he responded that about the said quarrel, for the first time he had stated before Investigating Officer and to none else because he had gone to his relation's place.
15. This witness has further stated that the constable who had come to call him had gone away after informing him and he had gone subsequently. He had enquired as to why the Inspector was calling him then the said constable had apprised him that Ram Dular had been murdered regarding which he was to be interrogated. He then had stated that he had gone for ploughing the field and he did not know about the murder and thereafter he had gone for purchasing the ox as soon as the sun had risen, from his house. The place where he had gone for purchase of ox, was about 2 ½ kos away from house. He had gone there for purchasing the ox because lot of people were talking about it. Although he had not gone to any particular person to find out about the sale of ox. He had gone on foot all alone and when he came to know that ox had already been sold, he came back without purchasing any ox. He did not enquire the name of the person who was selling the ox. He had gone with money. He had not purchased any ox in the said year. He has 3-4 bighas Kachcha field. He has one ox and had gone to purchase one more. The passage which goes to Dherhawa Mauja, is about 4-6 paces away from Bathan of Ram Dular. There was no one else there apart from him and Ram Dular and Jirjodhan. He had stayed there for about ½ hours. He has stated it to be wrong that he had not come via Bathan of the deceased nor had he heard about any quarrel and that he was stating false under the pressure of police.
16. It is evident from the statement of this witness that he is claiming to be a witness of the fact that when he had gone to purchase an ox and was returning and reached near Bathan of deceased at about 3.00 p.m., he had seen that quarrel was going on between the accused Jirjodhan and the deceased and that he had mediated between them and thereafter had gone home and when he returned from his relation's place about 3-4 days after the occurrence, he came to know that the deceased has been murdered. His testimony does not appear to be very credible as he is unable to disclose as to where he had gone to purchase ox, who was the person from whom he wanted to purchase the same and for which amount and he admitted that he returned home without purchasing the ox. He appears to be a chance witness who alleged that he was passing through that way, where the deceased and accused were having quarrel. Therefore, at the most he is trying to prove that because of the said quarrel, enmity would have been there due to which the deceased would have been killed by the accused. This conjectures on his part needs to be looked into in the light of other piece of evidence which prosecution has gathered in this case.
17. PW2 Uma Shankar had stated in examination in chief that he is village Pradhan of Karaihiya and knows the accused Jirjodhan, who is present in court, who lives besides Juna Bathan. About 6-7 months ago in the afternoon, he had come to him and had stated that he had murdered Ram Dular and the police was in search of him, since he was Pradhan, therefore, he should rescue him from police. On this, this witness (PW2) had stated to him that he would try to defend only for right work and not for wrong work and his statement was recorded by the Investigating Officer regarding this case.
18. In cross examination, this witness has stated that the accused lives within the jurisdiction of his Gaon Sabha. He was Pradhan since 1982 and prior to him, Bhikhari was Pradhan whose house was 2 ½ kos away from his house. He came to know about the murder of Ram Dular next day of occurrence from the villagers but he did not call Chawkidar. When he was going to the place of occurrence about 4-5 days after the occurrence, Inspector met him on the way. The real fact about the murder could be known only after 3-4 days after the occurrence. The next day of the occurrence only some information was received. Next day in the evening, he also heard about the murder in the village but who told about this, he does not recollect. Actually he came to know about the fact as to who gave effect to this occurrence only 3 days after the occurrence when Jirjodhan came to him and disclosed about it. He was put a question whether on the next day of the occurrence, he had got the knowledge about the murder to which he replied in negative. Again he was put a question whether he had came to know about the murder on third day of the occurrence to which he replied that in fact he came to know about the murder not on 3rd day rather on 4th day of the occurrence. He come to know about it at about 12 noon who had given effect of the occurrence. At that time, he was alone. He does not recollect as to who had given information about this to him from amongst the villagers. He only knows about the Jirjodhan who had disclosed about it. He had stayed for about ½ hours at his house and prior to this there was no access of accused to his house. Jirjodhan had stated to him "Aap Gram Pradhan Hai, My Baap Aap Hi Hai, Policewale Hairan Kar Rahe Hai. Ram Dular Ka Maine Katla Kar Diya Hai, Bacha Lijiye" (You are Gram Pradhan and all in all for him, police was harassing him, he had committed murder of Ram Dular, therefore, he should be saved ).
19. The above statement was made to him by accused once after stating the above fact, the accused never made any statement to him thereafter. He cannot tell as to from where he had come and where he had gone. Further, he has stated that after disclosing of this fact by the accused himself, he went to verify the fact all alone. From his house the place where the murder took place must be 5-6 kos and when he proceeded from his house, at a distance of about 2 kos Darogaji met him. There was an Inspector and four constables with him who was making search. Paikdeva and Khorwa villages would lie about 5-6 kos from his house. In the jungle of Moormaar village, the Inspector of Forest Department met him on the road who got down from cycle and it was only he who introduced himself. There were 3-4 other men of the village whose names he does not know. When he told the Inspector, then Inspector told him that now it has become night what would he do by going to the place of occurrence. When he met Inspector, the sun had set. He did not stay with Inspector and had come back. He stayed with Inspector about 4-5 hours. His statement was recorded by Investigating Officer but had not written the same. Thereafter, he never met him. The police used to come only intermittently. Further this witness has stated that the accused Jirjodhan was coming to his house since 2-3 days. The said statement was correct because when Jirjodhan came to his house for 2-4 days, he could not meet him as other people had told him that Jirjodhan had come but he does not recollect the name of the said person. He has stated it to be wrong that Jirjodhan had not met him nor did he state to him that he had committed murder of the deceased and that he was giving false statement under pressure of police.
20. From the perusal of the statement of this witness, it is apparent that he is village Pradhan who claims that accused Jirjodhan had appeared before him and had confessed to have committed murder of the deceased and wanted help from him because police was harassing him to which he had stated that he did not assure him of any help as he was prone to give help only for right work and not for illegal work and flatly refused that he would not be able to save him. The extra-judicial confession would be treated to be a week kind of evidence which is settled law because first of all accused must have confidence in the person before whom he is stated to have made confession of having committed offence that he would be in a position to save/defend him. In our opinion, the village Pradhan does not exercise any such power to save anyone from being punished from such a serious offence i.e. murder of a person. How could it be taken believable that the accused would go to village Pradhan and confess that he had committed murder, therefore, he should be saved by him, that appears to be figment of imagination of this witness. In the statement under section 313 Cr.P.C made by the accused, he had stated to have enmity with the said Pradhan, therefore, it could not be ruled out that this witness would have been making a false statement.
21. PW3 Bhikhari son of Lagan has stated in examination in chief that he is Ex. Pradhan of Mauja Hariya and knew Jirjodhan, who is present in Court, who was earlier resident of village Mahuli but for last 14-15 years he was living in Joona Bathan, Gram Sauradandi. About seven months ago at about 7.00 p.m. the Inspector was going to Joona Bathan along with two constable but due to it having become night time and the road being hilly and full of jungle, he stayed in the night at his house and on the next day in the morning, Inspector along with police started for Joona Bathan and when they reached near the river Kanhar, witness Bachchu who was Deputy Pradhan, was also taken along for going to Joona Bathan. They reached near well situated near the house of accused Jirjodhan, who was sitting in sun in front of his house and started fleeing from there as soon as he saw the police team. He was caught by police party with the help of PW3 and others and after having been caught, he started weeping at the feet of the Inspector and thereafter he was taken into custody of the police. Accused Jirjodhan stated in respect of the murder that Tangari by which the murder was committed, was concealed by him, which could be provided to police. Thereafter, the accused was taken along and proceeded towards the said place followed by the police team, PW3 and Bachchu. All of them reached near the house of accused where his house was searched and thereafter, after having gone in side the house followed by the police team, PW3 and accused coming out gave one axe from Chhappar where the same was concealed by him and the same was having dry blood on it. After taking the said axe into possession, its Fard was prepared in two copies, one copy of which was handed over to the accused. Fard was read out to the accused and was signed by PW3, Bachchu and both Inspectors and thumb impression was also taken of the accused thereon. The said axe was sealed on the spot by the Inspector which was opened before the Court and was recognized by this witness which is material Exhibit 1. This witness has further stated that the house from where the said axe was taken out and given, there lay one cot and no one else was there. He has further stated that he is resident of village Karhiya. The place from where the said axe was taken out, there were only three houses out of which one belonged to accused Jirjodhan, other belonged to his brother-in-law.
22. In cross-examination, this witness has stated that the house of accused would be about 7 kms. away from the house of PW3 and the place of occurrence would be about 200 yards towards west of the house of accused Jirjodhan. He came to know about the murder third day after occurrence from Dev Muni and 4th day after occurrence, Investigating Officer had come. The police normally does not stay but on the said day, police had stayed there because of it having become late. His house lies about six kms. away from village Pahrewa. Police had come to his house. Ram Chandar, Dasai and Brij Mohan are resident of his village. The police had arrested Ram Chandar, Dasai and Brij Mohan (all the three named accused). Police had arrested them, when the dead body was sent for post-mortem. He does know whether Jirjodhan had accompanied the dead body. When police had come to his house with associated two Inspectors and two Constables who had stayed in his house and Bhagat son of Tapsi was called by police. New Pradhan Uma Shankar was not called. This witness was put a question whether Inspector had enquired from Bhagat about the murder or not and what was stated by him, to which he replied that no question was asked about murder nor Bhagat had disclosed about the murder rather he had simply stated about quarrel which had happened between accused Jirjodhan and the deceased Ram Dular. The Inspector had interrogated Bhagat and after having halted one and half hours, Bhagat had gone. After departure from his house towards the house of Jirjodhan, after having travelled about 1 ½ kms. near river Inhar, Bachchu had met, from where the house of Bachchu would have been about 8-9 kms. away. He knew Bachchu. Bachchu was also taken along by Investigating Officer. When Bachchu had asked the Inspector, he was replied by Investigating Officer that Jirjodhan was to be arrested. He had already known in the night itself that he was to go with police to arrest Jirjodhan. Chhappar of Jirjodhan was not on wall rather was resting on Thunhiyas of wood. There were about 8 Thunhiyas which were 7-8 feet long and 4-5 feet in width. All around this hut, land was lying vacant. Prior to this occasion, he had never any opportunity to visit the said Chhappar of Jirjodhan. He does not know as to how many brothers were there of Jirjodhan and whether his father had died or was alive. The police had arrested him at a distance of about 100-125 paces away and after his arrest, he was not beaten by anyone. No search was made by police personnel nor of his own (PW3) by the accused. When accused gave Tangari to the Inspector at that time, his (accused)'s statement was recorded by Investigating Officer. Accused had orally stated that after giving tangari, writing work was done. Signature of Jirjodhan was taken on one copy of the Fard. This witness has stated that police had recorded his statement and it is wrong to say that he was giving evidence in this case under influence of the police.
23. The statement of this witness would reveal that he is Ex.Pradhan of the village who has claimed that the police had stopped every day at his place in the night, subsequently he had accompanied the police to the house of accused who tried to run away from the front of his house where he was sitting under sun after seeing the police but ultimately was caught and in the presence of witness, one Tangari is stated to have been provided by the accused from Chhappar roof of his hut and had stated that he had committed murder with the said weapon of the deceased. The said recovery is also stated by the prosecution to have been made by police pursuant to disclosure made by accused that he could provide the said weapon to the police by which he had committed murder of the deceased, this according to prosecution, would be treated to be evidence under section 27 of the Indian Evidence Act as the accused is stated to have made confessional statement with respect to having concealed weapon of assault in police custody which he was in a position to get recovered and ultimately the same according to prosecution, was got recovered. We have to see whether the said weapon is found to have been used in the commission of offence in the light of the expert evidence or not, therefore, we would express opinion about this at the relevant place. It however, is pointed out that the accused had denied the recovery of this weapon and has stated that no such confessional statement was made by him nor any such recovery was made by the police at his pointing out and the said recovery has been shown falsely by the prosecution.
24. Kuldeep Prasad son of Sarjoo who is the brother of the deceased Ram Dular has stated in examination in chief as PW4 that 3-4 days after murder of his brother Bhagat had told him that he had gone to purchase ox to Dherawavad and was returning by the road which was to the north of Joona Bathan and then he had seen that quarrel was going on between Ram Dular and accused Jirjodhan. Jirjodhan was saying that he (deceased) used to get his crop grazed by his cattle and today also his crop of pulse was grazed for which he will take revenge. This was told by Bhagat to him 3-4 days after the occurrence in the night at about 7-8 p.m. The next day of that he had gone to the police station and reached at about 4.30 p.m. and stated about this fact to the Investigating Officer.
25. In cross examination this witness has stated that he could come to know about the murder of his brother on 26.11.983. From the place of occurrence, his house is about 2- 2 ½ kos away. When his brother had been murdered then in the morning only he had come to know about it from his brother Indra Dev. Brother Hub Lal had gone to the police station, whom he met after about 2-3 days. Prior to the meeting with him, his brother Indra Dev had already told him about the murder. Chawkidar Bhola lives at about 1 ½ kms. from his village who had reached at the place of incident next day. Indra Dev had gone to take Chawkidar after having come to house. Indra Dev had simply told him that the murder had taken place and nothing else. He remained at his house only and did not go to the place of incident nor did he go to see his dead body even next day or even thereafter. Four days after the murder, police had come to village but he does not know where it had stayed. He had not seen Dasai, Brij Mohan and Ram Chandar in the village at that time. He stated that it is wrong to say that Bhagat had not told him anything and he was making false statement.
26. This witness is a real brother of the deceased as well as of informant who has also stated that he was told by Bhagat that there was quarrel between the deceased and the accused Jirjodhan when he was returning from the place where he had gone to purchase ox. The testimony of this witness is that of hearsay because he has not directly seen the deceased and accused Jirjodhan having any quarrel. Hence his testimony in this regard is not very significant.
27. Hub Lal son of Sarjoo who is also brother of the deceased as well as informant has stated as PW5 in examination in chief that the deceased Ram Dular used to live at Bathan where he used to graze cattle. This witness sometimes alone and sometimes with some other brother used to go to Bathan almost daily taking food for him (deceased) and from there he used to return with milk of buffalos and it was passage through jungle. He has further stated that about seven months ago, his brother Ram Dular was murdered. On 21.11.1983 in the morning when he and his brother Indra Dev had gone to Bathan taking food for deceased, he had seen that his brother Ram Dular was lying dead, someone has caused him injuries by sharp edged weapon at his face. After having seen this, he had sent his brother Indra Dev (PW4) to go home and inform about it. Thereafter, village Chawkidar, Sarjoo, Bhondu and Jivdhan also came there. He had called for a paper and pen from his brother Indra Dev from home which he had brought and thereafter he had written report at the place of occurrence. Thereafter, he went to lodge the same with Asarfi, Chawkidar, Bhola, Ram Parikha, Jivdhan and Bhagat at police station Dudhi and identified Exhibit Ka-1 to be the same report which was written by him in his handwriting. The said report was given by him at the police station at about 5.00 p.m., whereafter, Inspector had interrogated him at the police station. He also identified the clothes of the deceased i.e. underwear, material Exhibit-2, Bainiyan, material Exhibit-3, Kardhan material Exhibit-4 which his brother was wearing prior to his murder. Further he has stated that since about one year prior to the occurrence animosity was continuing between him and his family members on one hand and Brij Mohan, Ram Chandar and Dasai on the other hand with respect to plot no. 237 because of which he had named the accused in FIR due to suspicion.
28. In cross examination this witness has stated that he has six brothers including himself namely, Raja Ram, Bachai Ram, Nanku Ram, Indra Dev Prasad, Kuldeep Prasad and himself. Sometimes he used to go Bathan all alone taking food but most of the time, two brothers used to go. After the information having been given by Indra Dev at home, Kuldeep had not reached at Bathan. The house of Bhagat would lie at a distance of about ½ kms. from his house. He had not requested Indra Dev that he should bring some persons from the village but he had brought some person with him. About 45 minutes would have been taken in lodging the report and at that time he was accompanied by Indra Dev only from among his brother. There is only one person in his village by the name of Bhagat son of Tapsi. Prior to his coming to the police station or till the time of lodging report, no Ex.Pradhan had come at police station although he had stayed at police station 1-½ hours. One Naib Inspector and two constable had accompanied him from the police station and not senior most Inspector. He had proceeded to his village in the evening at about 6.00 p.m. on the same day and all were on cycle and had reached the place of incident about 11.30-12.00 p.m. in the night. In the night, they had all stopped there only after burning fire and the proceedings were started in the morning at about 5.30 p.m. Jivdhan, Bondhu, Ram Parekha had accompanied the dead body. They had reached at police station by 10.00 A.M. along with dead body. After his reaching home, on 27.11.1983 at about 5.00 p.m. both junior and senior Inspectors had gone to the house of Pradhan Bhikhari but he has not gone the house of Bhikhari nor had he met the Inspectors thereafter ever. When they had proceeded from the place of occurrence along with dead body, till then accused Jirjodhan had not come there. He has stated it to be wrong that Inspector had told him for money and had detained the accused Jirjodhan catching hold of him.
29. This witness is also one of the brothers, who has deposed that when he had reached at the place of incident in the morning along with his brother Indra Dev taking food for the deceased, there deceased was found dead as someone had caused him injury at his face by sharp edged weapon and that prior to this occurrence there was some dispute going on with Brij Mohan, Ram Chandar and Dasai with respect to plot no. 236, therefore, he had suspicion about his brother having been murdered by them and had named them in FIR. He is witness of fact only to the extent that he had seen the deceased lying in dead condition in the morning of 21.11.1983 when he had reached Bathan where his brother Ram Dular used to stay for grazing his cattle.
30. Dr. Jasvir Singh has stated in examination in chief as PW6 that on 22.11.1983 at about 3.00 p.m. he had conducted postmortem of the dead body of deceased Ram Dular son of Sarjoo whose dead body was brought and identified by constable Ashok Kumar No.434 and Chawkidar Bhola and found following ante-mortem injuries on his person.
i) Incised wound 11cm x 3cm x bone deep on the right lower jaw extending to front of neck oblique in direction under lying mendible fractured underlying hyoid cartilage cut external caeotit vessel of right side cut. Larynx cut.
ii) Abrasion 2cm. X 2cm. On the dorsal surface of right hand.
31. The cause of death was found to be excessive bleeding and hemorrhage due to injury no. 1 and his death was found to have happened 1 ½ days ago and that the same was possible to have taken place on 20/21.11.1983 at about 2 ½ a.m. The said injury was possible to be caused by sharp edged weapon like axe and the said injury was sufficient to cause his death. After having seen material Exhibit-1 (axe), this witness had stated that the said injury could have been caused by the said weapon. He prepared report Exhibit Ka-22 in his handwriting.
32. In cross examination this witness has stated that there could be difference in time of death of six hour on either side. The deceased might have dead within 5-10 minutes after having received the said injury which was possible to be caused by one blow only. Even if medical aid was made available to the deceased, then also he could not survive and denied that by providing immediate medical aid, life of the deceased could have been saved. This witness has proved that the deceased had died due to injury no. 1 which resulted in excessive bleeding and single injury was sufficient to cause his death in ordinary course and has also proved that the axe material Exhibit-1 alleged to have been recovered at the pointing out of the accused could cause such injury.
33. PW7 Constable 434 Ashok Kumar Singh is a witness of the fact that on 21.11.1983 at 7.45 p.m. he had taken the dead body of Ram Dular in sealed condition along with Chawkidar Bhola to PHC, Dudhi. He is the formal witness only.
34. PW9 S.I. Raj Narayn Singh who had conducted partially investigation of this case has stated in cross-examination that he had gone by cycle from police station to Pakdeva village and had reached there at about 11.45 p.m. and from there the place of incident was left only 1.75 kms. On the way lies river Kanhar which was crossed in the night at 11.30 or 11.45 p.m. When he reached near the dead body in the night, there were 10-12 men there but whether Bhagat was there, he could not tell. On the day when inquest was held, he had left the village at 2.00 p.m. He had not called village Pradhan prior to 2.00 p.m. He does not recollect whether the accused had come there when he was despatching the dead body. He had not made search for named accused on the said day. He had prepared site plan at the instance of informant and other villagers and has stated it to be wrong that he knew that the accused was present there at the time when he was despatching the dead body.
35. Other Investigating Officer, Jirjodhan Rai (PW10) has stated in cross-examination that the house of suspected persons would be about 4-5 kms. away towards east from the house of the accused which is hilly area and is uneven. On the said day, he had not crossed the river. He had reached the house of the suspected persons in the evening at about 4-5 p.m. and stayed there for 3 ½ hours where all the three suspected persons met him. No one of the family of informant was found there by him nor any witness was found there. On 27.11.1983, he had started for investigation from the police station accompanied with S.I. Raj Narayan Singh and two constables and soon after coming out of the gate of police station, first of all Kuldeep son of Sarjoo met them, who was younger brother of the deceased, who had not been called by them but he was taken along. A question was put to this witness to know from Kuldeep about the involvement of the accused in this crime to which the reply was given in negative. While going to the place of occurrence on the way near village Muripar, they met gram Pradhan Uma Shankar with whom there were 3-4 persons also. The statement of accused was recorded at the place where he was arrested and that the Marahi (Thatcher hut) from where material Exhibit-1 (axe) was recovered at the information of accused, was resting upon eight thunnis (wooden pillars) and all around it there were open space.
36. It appears from the statement that the said place where weapon by which offence is stated to have been committed is being stated by this witness to have been recovered from a place which is an open place. Marahi is also a temporary shed which would be treated to be easily accessible as there does not appear to be any pucca house which was locked and out of which the accused had given the said axe which he is stated to have provided to the police after making prior disclosure that he concealed the said weapon at that place by which he had committed murder of the deceased. It is apparent that as per provision of section 27 of the Indian Evidence Act, if pursuant to disclosure made by the accused in police custody some fact is discovered (here recovery of axe) the said fact would be admissible in evidence but in our opinion, this fact also needs to be taken into consideration that this axe was recovered from a place which was not very safe and protected and totally under the control of the accused where only accused could have accessed and no one else. It has not come in evidence that there was any such place which was locked and the keys of the same were with the accused only and only accused could have accessed to the said room, therefore, we find that there could be some doubt with respect to recovery of the said axe at the instance of the accused and some other persons could also be involved in planting the same being easily accessible.
37. PW11 Kalim Ullah Khan, Constable No.88 has stated that on 14.12.1983 when he was posted at P.S. Dudhi, the personal belongings of the deceased which were sealed in bundle, were deposited by him at Sadar Malkhana in sealed condition, therefore, he is only formal witness.
38. PW12 Constable 636 Satya Narayan Yadav has stated that he had brought original G.D., copies of which were report no. 10 dated 23.11.1983 and report no.18 dated 22.11.1983, which were written by Head Constable Girja Shankar with him, therefore, this witness is also a formal witness.
39. After having gone through the entire evidence which has been narrated above, we find that according to prosecution, the deceased Ram Dular was found dead on 21.11.1983 at 7.00 A.M. at Joona Bathan which was 6 kms. away from the house of the informant, when informant Hub Lal who is brother of the deceased along with other brother Indra Dev had gone there to provide him food as usual because he used to stay there only for purposes of grazing cattle and the informant and his family members used to take his food there regularly. The informant and his brother had found him having been assaulted by some sharp edged weapon at his face which resulted in his death. The said injury was found to have been caused by sharp edged weapon such as axe as has been proved by Dr. Jasveer Singh Gogiiya. Suspicion was expressed in the written report by informant against three named accused namely, Ram Chandra, Brij Mohan and Dasai with whom the informant and his family was having animosity relating to Araji no. 236 area five Biswas ten Dhoors. But the police after investigation, had exonerated them but in their place the present accused has been found involved in committing murder of the deceased on the basis of extra-judicial confession made by him before PW2 Uma Shankar, Ex. Pradhan of village Karhiya whom accused stated that he had killed Ram Dular and the police was searching him, therefore, he should save him but the said witness had replied that he would give help for right work and not wrong work.
40. Learned A.G.A. has relied upon judgment of Maghar Singh vs. State of Punjab, AIR 1975 SC 320 in which it is laid-down that the evidence furnished by the extra-judicial confession made by the accused to witnesses cannot be termed to be a tainted evidence and if corroboration is required, it is only by way of abundant caution. If the Court believes the witnesses before whom the confession is made and it is satisfied that the confession was voluntary, then in such case conviction can be founded on such evidence alone.
41. As against the said ruling, we would like to rely upon the law laid-down by Supreme Court in Ram Lal vs. State of Himachal Pradesh delivered on 3.10.2018 in which it is held that if the court is satisfied that the confession is voluntary, conviction can be based upon the same. Rule of prudence does not require that each circumstance mentioned in the confession with respect to participation of the accused must be separately and independently corroborated. But in this very case, it has also been held that it is well settled that conviction can be based on voluntarily made confession but the rule of prudence requires that wherever possible it should be corroborated by independent evidence. The extra-judicial confession need not in all cases be corroborated. In this very case, it is also mentioned that accepting admissibility of the extra-judicial confession, the Court in Sansar Chand vs. State of Rajasthan (2010) 10 SCC 605 has held that "29. There is no absolute rule that an extra-judicial confession can never be the basis of conviction, although ordinarily an extra-judicial confession should be corroborated by some other material." In this very judgment it is also mentioned that extra-judicial confession is a week piece of evidence and that the court must ensure that the same inspires confidence and is corroborated by other prosecution evidence. In order to accept extra-judicial confession, it must be voluntary and must inspire confidence. If the court is satisfied that extra-judicial confession is voluntary, it can be acted upon to pass conviction.
42. It is apparent from the above cited position of law that no doubt on the basis of confessional statement, the court can convict an accused provided the same inspires confidence but the same should also be corroborated by other piece of evidence which is stated to be rule of common prudence. In the case in hand, we have to see whether the confession made by the accused before Uma Shankar inspires confidence. It is apparent that Uma Shankar is a village Pradhan and not any such officer who could have any influence with the police at the higher end to be in a position to ensure acquittal of the accused or get his name exonerated from the charge-sheet. Why the accused would go to a person like Uma Shankar to seek help stating/confessing to have murdered the deceased. We do not find the said confessional statement before this witness to be confidence inspiring.
43. In the case in hand, there is no motive attributed to the accused for causing murder of the deceased except that in the statement of PW1 who has stated that when he was returning from place where he had gone for purchase of ox at about 3.00 p.m. in the afternoon, he had seen that the deceased and the accused were having quarrel, accused had told the deceased that he was often leaving the animals to graze his crop which was causing damage to the crop of the accused and that he would take revenge for the same and that this witness had mediated between them and had gone home. To us the said fact even if it be taken to be true that some heated exchange had taken place between two, it does not appear to be so serious a dispute that it would propel the accused to commit murder of the deceased. Moreover, we have already expressed our opinion about this witness that his presence appears to be doubtful at the time when he is stating to have seen the said quarrel happening between the two as neither he had purchased any ox nor could he tell any person where he had gone to purchase the said ox and he has stated that he returned without purchasing ox. Therefore, his presence is found to be not believable.
44. Next important aspect of this case is recovery of the axe by which the accused has stated before Investigating Officer (PW10) to have committed the murder of the deceased and he was in a position to get the same recovered, whereafter he took him along with other witnesses named for its recovery from thatched hut which was situated in jungle and all arounded it there was open space. We have already expressed in the earlier part of the judgment an opinion that such a place from where the said axe is stated to have been recovered seems to easily accessible to others also because it has not come in evidence on record that the said place was a place which was secure and that it was a place which was locked and could be only accessed by the accused and none else. We have given our opinion that the said place could have been accessed by others and therefore, it cannot be said that the accused only could have concealed the said weapon there. We are also of the opinion that it looks very unnatural that a person, who could commit a serious offence like murder, would conceal the weapon of murder in his house and would not throw it away some where else so that the same could not be found by the Investigating Agency/Police. It would be very natural that the accused would destroy or remove such evidence from such place where he would normally be living. Therefore, on this count also the recovery of the said weapon does not seem to be so conclusive and clinching evidence that it could only be the accused and accused who could have committed this crime.
45. Learned A.G.A. has vehemently argued that the blood of ''O' blood group was found on the said axe which was recovered at the instance of the accused and the blood group of the deceased was also of ''O' group therefore, this should be taken to be clinching evidence of the accused having murdered the deceased. We are not inclined to accept this argument because even if the blood group of the blood found on the axe is found to be matching with the blood group of the deceased, does not mean that it was accused only who had committed the murder of the deceased as we have already held that it cannot be conclusively held that the accused was the person who had actually concealed the said weapon/axe at the said place.
46. On the basis of above analysis, we come to the conclusion that all the links of the evidence which have been tried to be proved from the prosecution side do not form complete chain consisting of so strong proof that no other conclusion could be drawn by it except that it was only the accused who could have murdered the deceased and none else, which is an important and significant principle of law. Unless the complete chain is formed, the accused should not be held guilty merely on the basis of suspicion. We find that the trial court has not made proper appreciation of evidence and accordingly, we are of the opinion that the conviction of the accused-appellant deserves to be set aside.
47. The accused Jirjodhan is held not guilty of offence under section 302 IPC. Since he is in jail, therefore, he shall be released forthwith unless he is wanted in any other case. The appellant shall furnish fresh bail bond and surety to the satisfaction of the court concerned in terms of provision of section 437-A of Cr.P.C.
48. Let a copy of this judgment along with lower court record be transmitted to the trial court for necessary action at his end in accordance with law.
49. Appeal is accordingly allowed.
(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.)
Order Date :- 25.4.2019
AU