Rajasthan High Court - Jaipur
Sher Singh vs The State Of Rajasthan on 4 May, 1995
Equivalent citations: 1994(3)WLC136, 1995(1)WLN549
Author: V.G. Palshikar
Bench: V.G. Palshikar
JUDGMENT B.R Arora, J.
1. This appeal is directed against the judgment dated 19.1.88, passed by the Additional Sessions Judge No. 2, Hanurnangarh (Camp Suratgarh), by which the learned Additional Sessions Judge convicted the accused appellant for the offence under Section 302 IPC and sentenced him to undergo imprisonment for life and a fine of Rs. 500/- and in default of payment of fine further to undergo three months' rigorous imprisonment.
2. Appellant Sher Singh was tried by the learned Additional Sessions Judge No. 2, Hanumangarh (Camp Suratgarh) for committing the murder of his mother-in-law Smt. Mehro Bai on 21.7.85 out- side village Siduwala Khiraliya in the escape land by inflicting injuries with a knife. The case of the prosecution is that on 21,7.85, accused Sher Singh, alongwith his mother-in-law Smt. Mehro Bai (aged about 65 years) and his daughter PW1 Sukho Bai, left his village Dhandiya and boarder a bus from village Jalalabad and came to Bus Stand of Rajasthan Canal. After leaving the bus at 5.00 PM, they proceeded towards village Khileriya, and went to the house of P.W. 4 Govind Ram and took water. From there they proceeded towards village 4 SSPD where P.W. 2 Smt. Bakho Bai Alongwith her husband P.W. 3 Tota Singh was living. When they reached near the escape. Sher Singh took out a knife and inflicted three/four injuries on the neck of Smt. Mehro Bai and committed her murder. Sukho Bai and Smt. Mehro bai tried to resist, whereupon the accused threatened his daughter Sukho Bai that she should keep quiet otherwise she would, also, be done to death. After committing the murder of Mehro Bai, the accused concealed her deadbody in the bushes and left the place. The accused and Sukho Bai thereafter came to Sardargarh, boarded the train and reached to village 3 ND, where the mother of the accused and his other brothers were living and Sukho Bai was left there with her grand mother. P.W. 4 Pritam Singh had seen the accused, his mother in law Smt. Mehro Bai and his daughter Sukho Bai leaving the bus at Bus Stand of the Rajasthan Canal and he asked P.W. 2 Bakho Bai the daughter of the deceased and the sister- in-law of the accused - that the accused, his daughter and mother-in-law had came there by a bus: whether they had reached her house or not ? On 26.7.85, one selection was seen by P.W. 12 Het Ram in the escape which was being carried by the dogs, who reported the matter to the Sarpanch and thereafter FIR Ex.P.14 was registered under Section 174 Cr.PC. PW13 Mohan Singh, SHO registered the FIR and handed over the investigation to P.W. 9 Modi Ram, who prepared the inquest report and recorded the statement of the witnesses. When P.W. 2 Smt. Bakho Bai came to know regarding recovery of the deadbody in the escape, she became suspicious that that might be the deadbody of her mother. She, thereafter, alongwith her husband, went to village Dhandiya but neither her mother nor the accused was available there. Thereafter she searched for her mother but could not know the whereabouts of her. Then she, her husband and the Sarpanch of the village went to village 3 ND, where they found P.W. 1 Sukho Bai - the daughter of the accused in the house of her grand mother. On enquiry, Sukho Bai disclosed that her father (the Accused) had committed the murder of her maternal grand mother Smt. Mehro Bai in the escape in the Rohi of village Sidhuwala Khileriya. The accused, also, met them and on enquiry he made a disclosure that he committed the murder of his mother in law in the escape in the Rohi of village Sidhuwala Khileriya. P.W. 2 Bakho Bai, alongwith her husband P.W. 3 Tota Singh, thereafter went to Police Station, Suratgarh and on 1.9.85, lodged the FIR P.W. 13 Mohan Singh, SHO, after registration of the report, conducted the investigation arrested the accused and after completion of the investigation presented the challan. The prosecution, in support of its case, examined thirteen witnesses. The accused did not examine any witness in defence. The learned trial Court, after trial, convicted and sentenced the accused appellant, as stated above. While convicting and sentencing the accused-appellant, the learned Additional Sessions Judge Placed reliance over the evidence of PW1 Sukho Bai, the Extra-Judicial confession made by the accused before the witnesses and the circumstance of last seen of the deceased in the company of the accused. The learned trial Court, also, placed reliance over the recovery of the blood- stained knife and the clothes of the deceased as well as the report of the Serologist, though it was not exhibited in evidence nor was it put to the accused at the time of recording his statement under Section 313 Cr.PC.
3. The nature of the evidence, produced by the prosecution, consists of the statement of the eye witness P.W. 1 Sukho Bai - the daughter of the accused which is sought to be corroborated from the statement of P.W. 2 Smt, Bakho Bai, P.W. 3 Tota Singh and P.W. 6 Rulia Singh, to whom P.W. 1 Sukho Bai narrated the incident and before whom the accused, also, made extra- Judicial confession. This evidence is further sought to be corroborated from the statement of P.W. 4 Govind Ram, P.W. 5 Pritam Ram and P.W. 11 Diwan Singh, who had last seen the deceased in the company of the accused. P.W. 8 Har Chand and P.W. 10 Het Ram are the, two Motbir witnesses, in whose presence the deadbody and the clothes were recovered. P.W. 7 Megh Singh Constable was posted at Police Station, Suratgarh, who took the articles for FSL examination to the State Forensic Science Laboratory, Jaipur. P.W. 9 Modi Ram was the Assistant Sub-Inspector of Police, posted at the relevant time at Police Station, Suratgarh, who, in pursuance to the report Ex.P, 14 registered under Section 174 Cr.PC, recovered the skeleton from the escape in the Rohi of village Sidhuwala Khileriya, recorded the statements of the witnesses, got the post mortem on the skeleton performed by Dr. Sahi Ram the Medical Officer Incharge, Government Hospital, Suratgarh. P.W. 12 Mr. Mange Ram was the Tehsildar (Revenue), Suratgarh, who held the identification of the clothes and P.W. 1 Sukho Bai and P.W. 2 Smt. Bakho Bai identified the clothes of the deceased. P.W. 13 Mohan Singh was the Station House Officer, Police Station, Suratgarh, who conducted the investigation and presented the challan.
4. The first question which requires consideration in the present case, is: whether the skeleton, which was recovered from the escape of Rajasthan Canal in the Rohi of village Sidhuwala Khilerlya was that of deceased Smt. Mehro Bai ? To prove this, the prosecution has placed reliance over the statement of P.W. 1 Sukho Bai, in whose presence the alleged murder was committed by the accused and the recovery of the clothes of the deceased from that place. As per the post mortem report Ex.P. 13, an incomplete and decomposed deadbody of a female was found there. Most of the parts of the deadbody were missing. Lower jaw was absent, the teeth were absent in the upper jaw, right leg bone near the knee were absent, left leg bones were absent, right upper arm bone (humerus) and radius and ulna were present, rest was absent and the left humerus bone was present but other parts of the bones of left upper arm were absent. The Medical Officer opined that the deadbody was highly decomposed and incomplete and, therefore, the cause of death could not be ascertained. The post mortem report further shows that the mouth, pharynx and Oesophagus, stomach and its contents, small intestines and large intestines alongwith their contents were, also, not present. As per the post mortem report, the age of the female skeleton was between fifty to sixty years. Though the name of Dr. Sahi Ram, who conducted the post mortem was given in the Calendar of Witnesses but he was not produced and was left over by the prosecution. The age of the female skeleton, which was recovered, has been given by the doctor in the post-mortem report as fifty to sixty years while as per the written report given by P.W. 2 Smt. Bakhb Bai, the age of her mother was sixty-five years and her own age was given as forty-five years. Later on, P.W. 2 Smt. Bakho Bai tried to bring down her own age from 45 to 40 years and that of her deceased mother from 65 to 60 years during her examination in chief in order to bring it in the line with the age given in the Post Mortem Report. The deadbody was neither complete nor fit for identification. No clothes were found on the deadbody. Even the skin was not present on the skeleton. It is not the case of the prosecution that the clothes were taken away from the deadbody and were put at a place. According to P.W. 9 Modi Ram. the clothes were recovered from a place at a distance of fifteen feet from the place where the skeleton was lying. These clothes appear to have been planted by the investigating officer Modi Ram ASI with the connivance of Smt. Bakho Bai and Tota Singh because when the deadbody was in such a decomposed and incomplete position then the clothes would have been found, in a turn condition if at all possible, on the corpse it self and not lying at a place. P.W. 2 Bakho Bai and P.W. 3 Tota Singh have admitted in their statement that they came to know regarding recovery of the deadbody from the escape as their village is situated only at distance of two to three kilometers from the place where the skeleton was found, but as per the statement of Tota Singh they did not go to the place wherefrom the skeleton was recovered but instead they went to village Dhandiya while P.W. 2 Smt. Bakho Bai has stated that they went to see the deadbody and at the time the clothes were found on the corpse. At page 28 of the Paper Book, it has been stated by her that:
^^yk'k ds ml le; diM+s ifgus gq, Fks] pqUuh flj ij iM+h FkhA^^ The incomplete deadbody of a lady, aged about 50 to 60 years, was recovered from the escape where as per the admission of the prosecution witnesses, viz., P.W. 8 Har Chand and P.W. 10 Het Ram, casualty the deadbodies used to come in the escape through the Rajasthan Canal. The age of Mehro Bai (the deceased) was about 65 years as per P.W. 2 Smt. Bakho Bai, as disclosed in the FIR. The deadbody was not identifiable and, therefore, it cannot be said with certainty that the skeleton was that of deceased Smt. Mehro Bai.
5. Further, according to P.W. 1 Sukho Bai, the deceased, her father (the accused) and she left the village on Sunday near about Rakhi festival, but Rakhi festival fell on 30.8.85 and the sunday near about that Rakhi festival were on 25.8.85 and 1.9.85, while the deadbody was recovered on 26.7.85, i.e., before nearly a month of Rakhi festival in the year 1985. According to P.W. 1 Sukho Bai, three/four injuries were inflicted by the accused with the knife on the neck of Mehro Bai but the deadbody, which was recovered, had no body injury on any part of the body and even on the neck there was no injury as is clear from the post-mortem report. According to the evidence of P.W. 4 Govind Ram, the accused and the deceased came to his village one month before the time when the dead body was found in the escape. This period comes near-about the marriage of the con of P.W. 2 Smt. Bakho Bai as she herself has admitted that the deceased had come to her village to attend the marriage and at that time she gave the clothes to her mother.
6. The investigating agency, in the present case, has tried to make the case that the dead body recovered was that of deceased Smt. Mehro Bai by planting the clothes near the skeleton. It appears that the dead body was of some woman which might have come in the escape through the Rqjasthan Canal or it might be of some other lady, but it cannot be said with certainity that the dead body was of Smt. Mehro Bai.
7. The next question, which requires consideration, is: whether the evidence of P.W. 1 Sukho Bai connecting the accused appellant with the crime, inspires confidence ? It is true that P.W. 1 Sukho Bai is the daughter of the accused and, therefore, normally she should not implicate her father falsely in the case. But looking to the age of this witness, which was about nine years at the time of the incident, her immature judgment, untrained power of observation and likelihood of her being easily influenced and tutored, the evidence of this witness requires close scrutiny. Though as per Section 118 of the Indian Evidence Act, she is a competent witness, but the possibility of her being tutored or influenced by the person in whose company she was living cannot be ruled out. As per the statement of P.W. 1 Sukho Bai as well as the statement of P.W. 2 Bakho Bai, this witness is living with Smt. Bakho Bai and was with her before lodging the report. She is under the influence of her maternal aunt (Mausi) and uncle (Mausa) and the possibility of coaching and tutoring her by these witnesses can not be ruled out. As the children are highly immaginating and can be easily coached, tutored and influenced, therefore, the prudence requires that their evidence should be closely scrutinized. P.W. 1 Sukho Bai has stated that she was living with her maternal grand mother deceased Mehro Bai, mother Smt. Jito Bai and father (the accused) in village Dhandiya and her Mausi Smt. Bakho Bai used to live in village 4 SHPS. Near about Rakhi Festival, on Sunday, in the morning, she, her father Sher Singh and maternal grand-mother Mehro Bai, left village Dhandhiya for Jalalabad, boarded the bus from Jalalabad and reached the Bus Stand of Rajasthan Canal and came down from the bus there. After coming down from the bus, they proceeded towards village Khilerlya by the bank of the canal. In village Khileriya, they took water in the house of one Bagri. That man requested her father to stay at his house as it had become dark but her father told that they would reach the village and after saying so, they proceeded on their way. Her father was proceeding ahead while her maternal grand mother was following her father and she was following her maternal grand mother. In the way, her father suddenly turned behind, took-out the knife and inflicted three four injuries by the knife on the neck of her maternal grand mother Mehro Bai. She started weeping, whereupon she was threatened by her father of dire consequences. Her maternal grand- mother, also, cried but as nobody was present nearby so none could come there. Thereafter her father concealed the deadbody in the bushes and they came to the village of her grand mother (Daadi) at 3 ND by boarding the train from Sardargarh on the same day. At the time of death, her maternal grand mother was wearing white Dupatta, plain Shirt and printed Salwar. She was, also, wearing red-coloured Jooti (Shoes). In village 3 ND, her father and grand mother were talking together and her grand mother asked her father that Jito Bai and Bakho Bai should, also, be done to death otherwise they would implicate them. Some days thereafter, her maternal aunt (Mausi) Smt. Bakho Bai, Mausa Tota Singh and Sarpanch Rulia Singh came there and enquired about the whereabouts of her maternal grand mother Mehro Bai and the disclosed them that her father (accused Sher Singh), after killing Mehro Bai, had thrown her deadbody in the bushes. Thereafter Tota Singh, Bakho Bai and Sarpanch Rulia Singh met her father and her father (accused Sher Singh) admitted his guilt before them by saying that he had committed the murder of Mehro Bai and he be excused. In cross examination, this witness,has admitted that the clothes, which have been producec in the Court, are of back colour while her maternal grand mother was wearing the Salwar which had yellow prints and the Jootis were of black colour but the clothes and the shoes have not been identified by this witness though she has stated that she identified the clothes at the Police Station. She has, also, admitted that these very clothes were these in the Police Station and no other clothes were mixed with these clothes. In the cross examination, she had, also, admitted that from her paternal grand mother's house, she was taken by Sarpanch Rulia Singh. She has, also, admitted that she was taken to Police Station by Rulia Singh. She has, also, admitted that the relations between her father and Mausa Tota Singh were not cordial, rather they were strained. In cross examination, she has admitted that she narrated the incident in village 3ND to all those persons who vised to come to her house as well as to her fellow girls, with whom she used to play. She has, also, admitted that she has come to the Court four-five times prior to that day. Though she has denied that she has been tutored by her Advocate, Mausa and Mausi, but she has admitted that she has been brought to the Court by her Mausa and Mausi. She has admitted that throwing of the deadbody of Mehro Bai in the bushes by her father, has not been mentioned in Ex.D.4 She has, also, admitted that Rulia Singh took her to the house of Tota Singh and not the Police. She has, also, admitted that the clothes of the deceased were shown to her at the Police Station. She has, also, admitted that when she identified the clothes and the shoes of the deceased at the Police Station no other shoes or the clothes were mixed with them. This witness has stated that they left the village on Sunday near about Rakhi festival. In the year 1985, Rakhi festival fell on 30.8.85 and the Sunday near about the Rakhi festival fell on 25.8.85 and 1.8.85 while the incomplete and decomposed skeleton of a lady was recovered on 26.7.85, i.e., one month before this date. Moreover, this witness has stated that her father inflicted three/four injuries by the knife on the neck of her maternal grand mother Mehro Bai but no bony injury was found on the deadbody recovered. Certain improvements have, also, been made by this witness in her statement before the Court. A reading of the statement of this witness clearly shows that she was under the influence of her maternal aunt P.W. 2 Smt. Bakho Bai and Mausa P.W. 3 Tota Singh and her statement appears to be the result of coaching and tutoring by these witnesses.
8. Moreover, taking of this witness by the accused alongwith his mother-in-law (deceased Mehro Bai) when he had left the village to commit her murder, does not inspire confidence. The prosecution has produced P.W. 11 Diwan Singh, who has stated that this witness was taken for treatment but neither this witness has stated that she was unwell nor any other witness has stated so. Looking to the age of this witness of the fact that she was living with her maternal aunt Bakho Bai, we are of the opinion that the possibility of tutoring and coaching this witness by her Mausi and Mausa cannot be ruled out and it will be unsafe to accept the testimony of this witness who immediately after the occurrence did not narrate the incident to any other person though she has stated that she narrated the incident to the visitors to her grand mother's house and her girl Jriends but none has been produced to support her version. In the absence of any corroborations the evidence of this witness cannot be relied upon.
9. The next circumstance, relied upon by the prosecution and believed by the learned trial Court is that the deceased was last seen in the company of the accused appellant. The Prosecution, to prove this circumstance, has placed reliance over the statements of P.W. 4 Govind Ram, P.W. 5 Pritam Ram and P.W. 11 Diwan Singh. P.W. 5 Pritam Ram has not supported the prosecution case during the trial and he was declared hostile. His evidence is, therefore, of no assistance to the prosecution. P.W. 4 Govind Ram has stated that the accused, alongwith his mother-in-law and daughter, came to his house at about 5.00/6.00 PM and took water. He requested his to stay with him as it had become dark and suggested him to go to village 4 SHPD in the morning, but accused Sher Singh asked him that the Dhani of Tota Singh is nearly situated and they will reach there. Thereafter they left for village 4 SHPD. Sometime thereafter he came to know that in the escape, a deadbody of a woman was found and he came to known that deadbody was of the mother-in-law of the accused-appellant. The escape from where the deadbody was recovered, is situated as a distance of five squares (1375 yeards) from his field and this place is situated in between his field and the Dhani of Tota Singh. In the cross examination, this witness has admitted that when the accused had come to his house, the Sun had not set. He has, also, stated that he did not see the deadbody and the deadbody was recovered from the escape one or 1 1/4 month(s) after the day when the accused came to his house. In the cross examination, he has, also, admitted that he cannot say the particulars of the clothes which Mehro Bai was wearing at that time. He has admitted in that cross examination that Tota Singh had brought him to that Court. He has, also, admitted that at the time when the accused came to his house alongwith Mehro Bai and his daughter, his wife and children were, also, in the house and the accused, his mother-in-law and daughter stayed with them for fifteen to twenty minutes. He has, also, admitted that his house is situated in the heart of the village and when the accused stayed there, no other person came there. The distance between the Dhani of this witness and the Dhani of Tota Singh from village Sidduwala is only of three Bighas, i.e., about 165 yards. This witness stated that the deadbody was found in the escape after about a month or 1 1/2 months from the date when the accused etc. came to his house and thus as per his statement the accused and the deceased and his daughter came to village Sidduwala Khileriya sometime in the month of June, 1985. According to P.W. 2 Smt. Bakho Bai, the marriage of her son took place a month before 26.7.85 and Mehro Bai (the deceased) attended that marriage. The coming of the diseased and the accused alongwith his daughter, to the house of this witness, this, corresponds to that time and not to this incident. The evidence of this witness, also, does not inspire confidence an such type of a witness can be procured at any time. We are, therefore, of the opinion that this witness is not a reliable one and the statement of this witness even otherwise does not connect the accused with the crime. The evidence of this witness is, also, at variance with the statement of P.W. 1 Sukho Bai regarding the time of their visiting the house of this witness.
10. P.W. 11 Diwan Singh has stated that he was going from village Jalalabad to his village and at about 8.00 a.m. before 11/2 years, the accused Sukho Bai and Mehro Bai met him but he cannot say the correct date on which these persons met him. On enquiry, the accused told him that he was going to Bikaner for the treatment of Sukho Bai. After six seven days, the accused again met him in the way and thereafter Tota Singh and Bakho Bai, also, met him and enquired about Sher Singh and he disclosed to them that he had seen the accused going with Sukho Bai and Mehro Bai, whereupon Tota Singh told him that it appears that Sher Singh has killed his mother-in-law but he did not disclosed regarding this fact. In the cross examination, this witness has stated that Tota Singh met him three four days after he had seen the accused going. He has, also, admitted that Tota Singh's wife Smt. Bakho Bai had brought him to the Court that day and asked him to give statement in the Court. He has, also, admitted that he was taken to the Police Station by Tota Singh, where his statement under Section 161 Cr.PC was recorded. He has, also, admitted that the Jewelleries of deceased Mehro Bai and the cash of Rs. 10,000/- belong to Mehro Bai had been taken away by Bakho Bai. He has, also, admitted that Bakho Bai has mortgaged the land of Mehro Bai for a sum of Rs. 10,000/-. He has, also, admitted that Bakho Bai and Tota Singh are perusing the present case. This witness had no disclosed the day or the date when he had seen the accused, the accused and his daughter going towards that way and nothing turned out from the evidence of this witness. In the absence of any positive day or the date, it cannot be said that it was near about the date of the incident that he had seen the accused, his daughter and the mother-in-law. Moreover, P.W. 2 Smt. Bakho Singh and P.W. 3 Tota Singh have stated that when the deadbody was found in th escape, they went to village Dhandaniya. That day comes about ten days after the incident because the doctor has stated that the death of the recovered deadbody must have taken place prior to five to ten days of the post-mortem while this witness has stated that he had seen them three four days before. The evidence of this witness, also, does not inspire confidence and such a witness can be procured at any time and the evidence of such a witness cannot be judged from the other attending circumstances.
11. Thus, the evidence of last seen of the deceased in the company of the accused, put-forth by the prosecution, does not inspire confidence and we are of the opinion that the learned trial Court was not justified in placing reliance over this circumstance.
12. The next circumstance-relied upon by the prosecution and believed by the learned trial Court is the extra judicial confession made by the accused before P.W. 2 Bakho Bai, P.W. 3 Tota Singh and P.W. 6 Rulia Singh. The evidence of extra-judicial confession, though is a weak type of evidence but it can be relied upon and the accused can be convicted provided the alleged confession made by the accused is true, voluntary and inpires confidence. P.W. 2 Smt. Bakho Bai has stated that her mother (the deceased) used to live with the accused, who died about seven months before. One month before this incident, she came to her village to attend the marriage. In the month of Bhadwa, about seven months before Pritam Ram came to her Dhani and informed her that her mother Smt. Mehro Bai alongwith the accused and one small girl had left the Bus Stand, Rajasthan Canal and whether they had come to her house or not ? Two three days thereafter when she went Punjab, there Diwan Singh met her who informed her that Sher Singh and Mehro Bai had gone for the treatment of Sukho Bai in Rajasthan. Sometime thereafter they came to know that one deadbody of an old lady has been found in the Rohi of village Khileriya. They again went to Punjab and came to know that her mother was not at village Dhandiya. Lakha Singh, also, met them there and informed her that on Sunday, Sukho Bai, Mehro Bai and the accused had left village Jalalabad for going to village 4 SHPD. They searched for Sukho Bai and found her in village 3 ND with her grand mother and on enquiry, Sukho Bai informed them that her father (the accused) had killed her maternal grand mother and had thrown her deadbody in the bushes. Thereafter they made a search for Sher Singh and when he met they enquired from him about Mehro Bai. The accused informed them that after committing the murder of Mehro Bai, he threw her deadbody in the Rohi of village Khileriya and stated that he has committed a mistake and he be excused. She has further stated that Sher Singh has committed the murder of Smt. Mehro Bai for the land which was in her name. She has, also, stated that she identified the clothes of her deceased mother before the Tehsildar. She could identify those clothes because those clothes were given by her to her mother and she had seen these clothes worn by her mother when see had come to attend the marriage of her son. In the cross examination, she had admitted that the day Pritam Ram told her that Sher Singh alongwith his daughter and mother in law Mehro Bai had come, they suspected that Mehro Bai had been done to death. She has also, admitted that the bus stand of Rajasthan Canal is about five miles from her house and the deadbody was recovered from the distance of about two to 2 1/2 miles from her house. She has, also, stated that after returning from Punjab, she and her husband Tota Singh went to see the deadbody (though Tota Singh denied this fact) and the deadbody was tying with the mouth downwards and the clothes were found on the deadbody and the Dupatta was, also, on the head of the deadbody. Next day, after seeing the deadbody. she went to the Police Station and lodged the report. The report was written by the police at the place where the deadbody was recovered. She has, also, admitted that three days after the date when the information was given to her by Pritam Ram, the report was written by the Police. When she was confronted with her earlier statement recorded by the police about the disclosure made to her by Lakha Singh regarding coming of the accused with Mehro Dai and his daughter, which fact does not find mention in her earlier statement, she stated that she disclosed this fact to the police but why it is not written in her earlier statement Ex.D. 1, she cannot say. She has, also, admitted that Sukho Bai is living with her. She has, also, stated that after ten days of the date the information given to her by Pritam Ram, the accused was arrested. She has, also, admitted that she has given the land of her mother Mehro Bai on contact basis and has taken the amount. She has, also, admitted that a month before the Incident, her mother had come to her village to attend the marriage of her son and had brought the clothes for her son. When she was confronted with the fact of giving clothes by her to her mother, which fact does not find mention in Ex.D. 1, she stated that she disclosed this fact to the Police, but why it has not been mentioned in her earlier statement Ex.D.l, she cannot say. She has, also, admitted that the corpse was eaten-up by the dogs. She has, also, admitted in the cross examination that she got the report Ex.P. 1 written at the place where the deadbody was lying and the report was written by the Station House Officer. She has, also, stated in the cross-examination that the accused himself has stated that he killed Mehro Bai and threw her dead body in the escape. She has, also, admitted that at the time when the site plan was prepared, the accused was present and he disclosed that he had killed the old lady with the knife an he produced the knife at that time. She has stated that she had lodged the report of the disappearance of her sister Smt. Jito Bai at Police Station, Suratgarh as well as in Punjab ( no copy of any of such reports has been produced). She has, also, stated that she identified the deadbody of her mother merely by seeing it. She has, also, stated that the clothes which were recovered, were new and had holes on them cause due to insertion of the knife. According to her the Salvar and Dupatta had holes caused by knife and the clothes were stained with the blood.
13. A close reading of the statement of this witness shows that she is completely a liar. She, in the written report, has stated her age as 45 years and that of her deceased mother as 65 years but later on, to make it in consonacne with the age of the deadbody given in the post mortem report, she has stated that the age of her mother was between fifty to sixty years while her own age, at the relevant time, was forty years. She has stated that she became suspicious when she was informed by Pritam Ram that her mother alongwith the accused and his daughter had come to her village, but inspite of that when the deadbody was recovered from the escape, which is at a distance of two miles from her Dhanl, they did not go to the place where the deadbody was lying but they went to village Dhandiya. She has further stated that after returning 4 from village Dhandiya they went to the place where the deadbody was lying and found the clothes on the deadbody while this statement of the witness does not find corroboration from the other evidence. Neither Tota Singh nor any other witness has stated that she was present there. It appears that she has introduced the name of witness Lakha Singh in her statement who had disclosed her that he saw the accused his daughter and the deceased leaving Jalalabad. In the earlier version of this witness, the name of Lakha Singh was not disclosed by her. She, with the help of her husband Tota Singh, has tried to plant the clothes near the place where the deadbody was lying. It is not the case of the prosecution that the clothes were taken off from the deadbody and were placed at the site. She has taken the amount Rs. 10,000/- of her deceased mother from the bank. Though she has not gone where the deadbody was lying and the deadbody was not recovered in her presence but she has gone to the extend of telling lie that when they went there, the deadbody was laying in the way which procees from Sidduwala to the field an the deadbody was having the clothes on it and she, alongwith her husband, went to the Police Station and lodged the report on the next day when the deadbody was recovered. The deadbody was recovered on 26.7.85 while the report, lodged by her is dated 1.9.85, i.e., after about more than one month. She has, also, stated that the report Ex.P. 1 was written by the SHO at the place where the deadbody was recovered and she appended her thumb impression thereon. This fact, also, stands falsified from the statements of other witnesses. Her statement further stands falsified from the dates of arrests of the accused and the recovery of the knife. She has stated that as soon as she saw the deadbody, she identified it. This statement is, also, false because she never went to the place wherefrom the deadbody was recovered and it has come in the evidence that the deadbody was incomplete and decomposed and was not having any clothes on it. The skin on the deadbody was missing. The relations between this witness and her husband with the accused were not cordial and as such there was no question of making any extra-judicial confession by the accused before these witnesses. She is a complete liar and her evidence does not inspire confidence.
14. The next witness to the alleged extra-judicial confession made by the accused, is P.W. 3 Tota singh, who is the brother-in-law (Saadu) of the accused. He has stated that they went to village 3-MD in search of his mother-in-law and on enquiry from P.W. 1 Sukho Bai, she disclosed before them that the accused had committed the murder of Mehro Bai and the accuse, also, disclosed to them that he had committed a mistake by committing the murder of Mehro Bai and after committing the murder he had thrown her corpse, in the bushes and told that he had committed the murder of Mehro Bai for the greed of her land. He has, also, stated that the accused got the knife recovered from his house. This witness, in the cross-examination, has admitted that on asking of Pritam Ram That the accused, Mehro Bai and the daughter of the accused were seen coming towards his Dhani, they became suspicious that the accused has committed the murder of Mehro Bai but inspite of that they did not go to the escape where the deadbody of a woman was recovered but went to village Dhandiya. If they had suspicion and the deadbody was recovered then the normal conduct of their part would have been to first go to the place where the deadbody was recovered and ascertain about it. He has, also, denied the fact of registration of the FIR Under Section 174 Cr.PC. He has, however, admitted that in the escape, water in the Rajasthan Canal comes and there are three/four gates of four to five feet in width and sometimes the deadbodies used to come there. The relations of this witness with the accused were not cordial, rather they were strained which has been admitted even by P.W. 4 Sukho Bai and the accused had lodged a report under section 107 and 151 Cr.PC against his sons. When the relations between this witness and the accused were not cordial then there was no 'question of making a clean breast by the accused before this witness. The alleged extra-judicial confession, said to have been made by the accused before the aforesaid witnesses, does not inspire confidence. After going through the statement of this witness, we are of the opinion that the accused could not have made any extra judicial confession before this witness, also.
15. Similar is the statement of P.W. 6 Rulia Singh. After going through the statement of this witness, we are of the opinion that this witness is related to P.W. 3 Tota Singh who had no cordial relations with the accused and, therefore, there was no question of making any extra-judicial confession by the accused before this witness, also. The accused has no relations with this witness but he has gone even to the extent of saying that he is the first cousin to the accused. It is an admitted position that he is the brother-in-law of P.W. 3 Tota Singh and all these manipulations, involving the accused appellant in the crime have been made by these three witnesses, viz., P.W. 2 Smt. Sukh Bai, P.W. 3 Tota Singh and P.W. 6 Rulia Singh, with the aid and connivance of the investigating officer P.W. 9 Modi Ram and the S.H.O. P.W. 13 Mohan Singh. After going through the evidence of the aforesaid three witnesses, we are of the opinion that the alleged extra-judicial confession made by the accused cannot be said to have been made by the accused, nor it can be said to be true, voluntary or trustworthy. The whole evidence of extra-judicial confession has been concocted by the prosecution in order to implicate the accused with the crime.
16. The next evidence relied upon by the prosecution and believed by the learned trial Court is the recovery of the clothes and the knife which was found stained with human blood. The F.S.L. report has not been exhibited and no such report has been put to the accused in his statement recorded under Section 313 Cr.PC and, therefore, the report of the serologist cannot be read against the accused-appellant. Even the recovery of the blood-stained clothes, also, does not inspire confidence. Even as per the report, no clothes were found on the deadbody and it is not the case of the prosecution that the clothes were taken off from the deadbody. P.W. 9 Modi Ram is the Assistant Sub-Inspector, who conducted the investigation in pursuance to the report Ex.P. 14. He with the aid of P.W. 2 Smt. Bakho Bai and P.W. 4 Tota Singh planted the clothes as well as six bus tickets. It is not expected that in the open land, the tickets and the clothes will remain lying there for six seven days, particularly in the month of July when the winds do blow and even there are dust storms in this month. The deadbody was found decomposed and was not having even the skin but still the clothes were recovered by Modi Ram. It is unbelieveable that even in the aforesaid circumstances the clothes and the tickets could be recovered by the investigating officer. As per Section 174 Cr.PC when the officer Incharge of the Police Station receives any information that a person has committed suicide or has died under the circumstances raising reasonable suspicion that some other person has committed an offence then he should immediately give the information thereof to the nearest. Executive Magistrate empowered to thold the inquest. But neither P.W. 13 Mohan Singh, SHO nor P.W. 9 Modi Ram sent any information to the Executive Magistrate and Modi Ram went to the place, prepared the inquest report, got the postmortem performed and disposed of the deadbody without informing the nearest Executive Magistrate. In a case where the death takes place in suspicious circumstance, the law requires that enquiry in such a suspicious death should not depend merely on the opinion of the police and a check has been provided by this Section that the report should be made to the Executive Magistrate enabling him to hold an independent, enquiry. Both the investigating officers have completely given a go-bye to these mandatory provisions and them selves proceeded with the matter and even made recovery of the clothes though no such clothes were found on the deadbody. P.W. 9 Modi Ram and P.W. 13 Mohan Singh, SHO have, also, given a complete go-bye to the provisions of the Rajasthan Police Rules even, which deals with the inquest and the procedure provided under Section 174 Cr.PC.
17. Further, the Malkhana Incharge has not been produced, If he would have been produced, the real truth could have come to the notice but in order to avoid that, P.W. 13 Mohan Singh, SHO, in his statement before the Court, has stated that the Malkhana articles remained in the custody of the Head Mohrir in the sealed condition under his supervision. P.W. 13 Mohan Singh was not the Incharge of Malkhana of the Police Station but the Incharge of the Malkhana was the Head Constable, in whose custody the incriminating articles remain and he would have been the best person to disclose that the articles remained in the same sealed condition. In the absence of the statement of Head Constable, who was the Incharge of Malkhana and in whose custody the articles remained, it cannot be said that the incriminating articles of this case remained in the same sealed condition. Moreover, these recoveries even otherwise do not connect the accused with the crime because the recoveries themselves are suspicious and moreover in the absence of production of FSL report, it cannot be said that the knife was stained with human blood because that question was not put to the accused. We are, therefore, of the opinion that this circumstance has, also, been wrongly believed by the learned trial Court.
18. We are, therefore, of the opinion that the prosecution has failed to prove the case against the accused appellant beyond a reasonable manner of doubt and the accused appellant deserves to be acquitted.
19. In the result, the appeal, filed by accused appellant Sher Singh, is allowed. The Judgment dated 19.1.88, passed by the learned Additional Sessions Judge No. 2, Hanumangarh (Camp Suratgarh), convicting and sentencing the accused appellant for the offence under Section 302 IPC, is set aside and the accused appellant is acquitted of all the charges levelled against him. The appellant is in jail and he shall be released forthwith if not required in any other case.