Punjab-Haryana High Court
Hari Kishan And Anr. vs The State Of Haryana on 10 August, 1989
Equivalent citations: 1990CRILJ385, (1990)97PLR50
JUDGMENT S.S. Sodhi, J.
1. The matter here concerns a murder sans the corpus delecti, with the challenge in appeal being to the wholly unsustainable conviction of the two appellants-Bari Kishan and Rishi Pal for the murder of Sat Pal. They both stand convicted for the offences under Sections 302 read with Sections 34, 364 and 201 of the Indian Penal Code.
2. The said Sat Pal deceased was, in relationship, an uncle of the appellant Hari Kishan Sat Ral being the son of Kura who was the brother of Jowala-the great-grand-father of the appellant Ban Kishan. The other appellant Rishi Pal is said to be a person under the obligation of the appellant, Hari Kishan as he had got him appointed as clerk in a College in Delhi.
3. In May 1986, Jaipal, the brother of Sat Pal was serving a life sentence in Jail at Jind According to the prosecution, Sat Pal was to visit him on May 28, 1986. Jaipal and Sat Pa) were both married to the sisters of Dalbir Singh. This Dalbir Singh had written a letter to Sat Pal which he wanted to be delivered to him on that day, that is, May 28, 1986, as he himself had to leave earlier to rejoin his duties. Dalbir Singh, accordingly went to Zile Singh on May 27, 1986 and banded over the letter to be delivered to Sat Pal. On May 28, 1986, when Zile Singh went to Jind and met Sat Pal, he also gave him Dalbir Singh's letter. Hari Kishan, it is said, had promised to help Sat Pal get employment and was taking him away with him for this purpose. It is further the prosecution case that at that time Sat Pal was carrying a sum of Rs. 7,400/- which he told Zile Singh, comprised the proceeds of one year's chakota for his land and the price of wheat sold by him. Zile Singh, sat Pal and Hari Kishan then went to the jail where they met Jaipal At this meeting. Sat Pal is supposed to have told his brother Jaipal that Hari Kishan was going to got him a job Sat Pal, Mari Kishan and Zile Singh later came to the bus stand from where Hari Kishan and Sat Pal left for Delhi, Sat Pal was not seen thereafter.
4. When Sat Pal did not return for some time and there was no news from him, his sister Vedo-the wife of Zile Singh went to Nagura with Dalbir Singh and met Hari Kishan there, who, on there enquiry told them that he had got Sat Pal employed at Delhi.
5. Over six months passed thereafter, but there was still no news of Sat Pal and it was then that his four sisters met and made an application to the Superintendent of Police Jind regarding the disappearance of their brother Sat Pal, who, they suspected had been murdered by Hari Kishan. This application exhibit-PA was made on November 15, 1986 and it was on the basis of this that the present case came to be Registered on December 14, 1986.
6. It is now well-settled, as observed by the Supreme. Court in Ram Chandra v. State of Uttar Pradesh, A. I. R. 1987 S.C, 381. that conviction for an offence of murder does not necessarily depend upon the corpus delecli being found and that there may be reliable evidence, direct or circumstantial of the commission of the murder though the corpus delecti was not traceable. In the present case, there is no eye-witness to the occurrence, the case of the prosecution against Hari Kishan is thus founded upon the evidence to show that Sat Pal was last seen with Hari Kishan and was in fact taken away by him ; his extra-judicial confession to Ramji Lal and the recovery of letter exhibit-PC written by Dalbir Singh to Sat Pal; a knife and Rs. 1,200/- in pursuance of disclosure statements said to have been made by Hari Kishan, during interrogation after his arrest.
7. As regards the other appellant-Rishi Pal, the prosecution seeks to rely upon his retracted confession as. also the recovery of clothes said to be of Sat Pal deceased, in pursuance of a disclosure statement made by him.
8. In order to establish that Sat Pal deceased was last seen with Hari Kishan and was taken away by him on the pretext of getting him, employment in Delhi, the prosecution examined P.W.-2-Zile Singh, the brother-in-law of Sat Pal and his brother PW-7-Jaipal. It was the testimony of Zile Singn that he met Sat Pal at Jind on May 28, 1986, and handed over to him the letter of Dalbir Singh and thereafter he and Sat Pal accompanied by Hari Kishan went and met Jaipal in the jail at Jind. Jaipal sought to corroborate this by deposing that all three of them; namely, Zile Singh, Sat Pal and Hari Kishan met him in the jail that day.
9. It will be seen that the occasion for Sat Pal, Zile Singh and Hari Kishan to be together at Jind on May 28, 1986 was provided by their meeting Jaipal in the jail that day. A Reference to the statement of PW-3-Ratti Ram, Deputy Superintendent of Jail would, however, show that in the jail register, the relevant entry regarding the interview contained the name of only Sat Pal. It is not possible to accept what was mentioned by him, that the names of the other persons accompanying a visitor are not required to be mentioned therein.
10. Further, there is the aspect of the inordinate delay in reporting to the police, the disappearance of Sat Pal. As mentioned earlier, it was only on November 15, 1986 that the sister of Sat Pal made the application exhibit-PA to the Senior Superintendent of Police, Jind, in this behalf and It was about a month later that the present case came to be registered. Not only this, a reading of the testimony of PW-7 Jaipal-the brother of Sat Pal deceased would show that as far back as September 22, 1986, he had made an application to the Sessions Judge, praying, therein that Sat Pal, who was missing, be got traced. There was in fact mention in this application of a similar application having been made by him earlier too. In other words, the relations of Sat Pal were aware of his disappearance a couple of months before the application exhibit-PA had been made and despite this, the matter was not reported to the police till much later. No explanation is forthcoming to account for the inaction and delay on their part.
11. While dealing with this aspect of the matter, it is also noteworthy that the evidence on record does not suggest that any attempt was made to question Hari Kishan closely with regard to the employment of Sat Pal and his place of work when Sat Pal's sister, PW-2- Smt. Vedo states that she and Dalbir Singh met him at Nagura. It is not the prosecution case that Hari Kishan had mentioned the name of any person or place where Sat Pal was employed or that on enquiry, he was not found there.
12. Turning now to the motive sought to be attributed to Hari Kishaa for causing the death of Sat Pal, namely; the money that he was carrying when he is said to have left Jind with Hari Kishan on May 28, 1936, this too lacks a ring of plausibility. The occasion for Sat Pal to be carrying this money as suggested, was that a lawyer had to be engaged for filing an appeal in the High Court against the conviction of Jaipal brother of Sat Pal. It has come in evidence that Sat pal was a young boy of only 17 or 18 years of age. Admittedly, there were other older relations of Jaipal available, namely; PW-4-Dalbir Singh, his brother-in-law and PW-2-Zile Singh, who was married to the sister of Jaipal. The prosecution has not cared to explain why Sat Pal was chosen for engaging counsel in preference to these other relations. It is partinent to note, in this behalf, that there is no suggestion that when the case against Jaipal was pending before the trial court, it was Sat Pal who had been pursuing it. The story, therefore, that Sat Pal was carrying this money with him does not inspire confidence.
13. The main plank of the prosecution case against Hari Kishan rests upon the extra judicial confession said to have been made by Hari Kishan to PW-6 Ramji Lal on December 17, 1986. According to this witness, Hari Kishan came to his house at about 12 noon that day and told him that he had committed a big sin that be had killed his uncle Sat Pal. When asked why he had done so and how, he told him that he had killed him out of greed for Rs, 7,400/- that he was carrying and as to how he had done it, he said that he had taken Sat Pat to the house of Rishi Pal in village Gullawati in Uttar Pradesh and there he had killed Sat Pal with a knife, He did not, however, tell him anything else about the dead body,
14. According to Ramji Lal, after Hari Kishan had made the extra-judicial confession, he, on his request took him with him, with a view to produce him before the police and when he happend to meet the police at the bus stand Nagura, he handed over Hari Kishan to them.
15. A reading of the testimony of PW-6 Ramji Lal would show that he was related to Sat Pal by marriage; Sat Pal being the Cousin of his wife. He, however, had no previous association with' Hari Kishan and a rather curious feature here is that Ramji Lal would have the Court believe that having heard the confession, he asked no further question from Hari Kishan, not even regarding the disposal of the dead body of Sat Pal, What is more, it was also his statement that he did not thereafter care to inform any of the relations of Sat Pal of the confession made to him by Hari Kishan. This cannot, but be branded as unnatural conduct on his part.
16. The further glaring aspect concering the extra-judicial confession that emerges from the statements of PW-1-SmtNedo and PW-4 -Dalbir Singh is that as per their testimony, Hari Kishan was in the custody of police three days prior to the day on which he is said to have made this extra-judicial confession to Ramji Lal. According to Ramji Lal, he produced Hari Kishan before the police on the same day on which the confession had been made for him. The investigating officer PW-10--Sub-Inspector Jagdish Chand deposed that Hari Kishan had been produced before him on December 17, 1986. A reading of the testimony, of PW-1 -Smt. Vedo and PW-4-Dalbir Singh, on the other hand, shows that Hari Kishan was with the police on December 14, 1986 The prosecution has not been able to reconcile these conflicting statements and this circumstance clearly clinches the un-reliability of his extra judicial confession.
17. An extra-judicial confession is usually looked upon as a weak type of evidence and therefore, whenever it is sought to be relied upon, the burden lies upon the prosecution to show its trustworthiness. In order to render such confession worthy of belief, regard must be had to :--
(i) the person to whom it was made;
(ii) the connection, if any, of the accused with him;
(iii) the occasion or reason for the accused to go and make such a confession to him; and
(iv) the circumstances in which it was, made. Besides all this, the extra-judicial confession must be considered in the over-all context of the prosecution case and the evidence on record.
18. Considered in this light, no credence can be given to the extra-judicial confession said to have been made by Hari Kishan to Ramji Lal. On the face of it, it inspirs no confidence and it would thus not be safe to rely upon it.
19. Turning now to the recoveries of the letter exhibit-PC; knife and Rs. 12,000/- consequent upon the disclosure statements made by Hari Kishan, it would be seen that they too do not, in any manner, take the prosecution case against Hari Kishan, any further. The knife in question was not blood-stained and the currency notes did not bear any special distinguishing marks on them. As regards the letter exhibit- PC, the prosecution has not bees able to ascribe any reason for Hari Kishan to have preserved this letter.
20. Further, it will be seen that the only independent witness to these disclosure statements and the recoveries was PW-8-Shahtab Singh. A reading of this testimony would show that no disclosure statement was made in his presence. The statement, after it had been recorded behind his back, was merely put before him for signatures while he was sitting outside the police station. Thus these recoveries too do not advance the prosecution case.
21. Coming now to the other appellant-Rishi Pal, as mentioned earlier, the case against him rests merely upon the recovery of the clothes of Sat Pal at his instance as a consequence of a disclosure statement made by him. Here again the witness to the disclosure statement is the same P.W. 8-Shahtab Singh who deposed that the disclosure statement had been made inside the police station while he was sitting outside and he merely signed the statement when it was put before him by the police.
22. Further, it will be seen that there is no reliable evidence forthcoming to establish that the clothes recovered were indeed those of Sat Pal deceased. What is more, here too, there is no explanation to account for these clothes having been preserved in this manner by the appellant-Rishi Pal.
23. The main reliance of the prosecution against Rishi Pal is upon the confession, though later retracted, said to have been made by him to the Judicial Magistrate P.W. 5-Shri R. S. Virk. The evidence on record shows that Rishi Pal was in police custody till December 30, 1986. Two applications are said to have been made by Rishi Pal to the Judicial Magistrate expressing & desire therein to make a confession, the first application having been made on January 2, 1987 and the second on January 6, 1987. The confessions was eventually recorded by the judicial magistrate on January 8,1987. It is pertinent to note that though the Magistrate had warned Rishi Pal that he was not bound to make any statement and that the statement made could be used against him as evidence, he proceeded to record the confession without giving any time to Rishi Pal to reflect upon his warning. The explanation pat-forth by the Magistrate for this, being that as Rishi Pal had made two written requests to make a confessional statement, he did not think it necessary to permit him any time to make up his mind about making of the confession. Further, it will be seen that the doors of the courtroom where the confession was being recorded, were not closed. Police Officers were present outside the Court and the possibility of them overhearing the confession, or at/any rate of Rishi Pal believing that they could over-hear it, cannot be ruled out. These circumstances must clearly detract from the confession being voluntary and genuine, particularly in the context of the subsequent retraction of this confession and that too at the earliest opportunity when the application of the police for making Rishi Pal an approver in this case was opposed by Rishi Pal on January 17, 1987 when he also, retracted his confession . Such being the circumstances, no reliance can indeed be placed upon the confession said to have been made by Rishi Pal either against him or Hari Kishan.
24. Such being the state of evidence on record, there can be no escape from the conclusion that the prosecution has failed to make out any case for either Hari Kishan or Rishi Pal to answer. The prosecution evidence falls far short of that required to prove any of the charges against the appellants. The convictions and sentences of both the appellants are accordingly hereby set aside and they are hereby acquitted. This appeal is thus accepted. The appellants who are in custody, are directed to be released forthwith.