Rajasthan High Court - Jaipur
Kevji And Ors. vs State Of Rajasthan on 23 March, 2001
Equivalent citations: 2002CRILJ725, 2002(1)WLC547, 2002(1)WLN529
Author: N.N. Mathur
Bench: N.N. Mathur
JUDGMENT Singh, J.
1. Smt. Pramila aged about 20 years went for "garba" dance in the night in village Bagidora which was also not only her parental village but in-laws house, but did not return thereafter. An information was also sent to the parents of Pramila through Meghji on 10.10.1994 at 3.00 P.M. that Pramila is missing since 8.10.1994, whether she has come to the parental house or not. Thereafter both the parties searched for Pramila and her dead body naked and hacked in pieces was found floated in Tilwani Dam on 12.10.1994. An FIR Ex.P/30 was lodged before the Station House Officer Kalihjara by Deveng, father of the deceased alleging inter-atia that Kevji warnted to remarry and hence was maltreating Pramila and ultimately has done away with her and that naked and hacked pieces of the dead body belonged to his daughter Pramlta.
2. In the FIR Ex.P/30 not only Kevji, husband of deceased, but also Smt. Ganga, who was mother of Kevji, and two sisters smt. Manu and Smt. Amrit as also their husbands Narain Lal and Premji' were also implicated. One Shamim Khan alias Tamulala was also implicated because he was hired to cut the dead body into pieces. After necessary investigations all these persons were charge- sheeted and ultimately convicted and sentenced by the trial court not only under Section 302 but also under Sections 120B and 201 1PC.
3. Mr. Jain, learned defence counsel has took us into the oral and documentary evidence produced by the prosecution in the trial court and tried to impress upon us that the guilt against these persons has not been proved to the hilt. On the contrary, Mr. Pareek, learned Public Prosecutor has supported the conviction and sentence awarded to the accused appellants.
4. We have carefully considered the rival contentions and have perused the impugned judgment as also the record available on the file.
5. The prosecution have tried to connect these accused persons with the guilt , through circumstantial evidence as also by way of extra judicial confession made by accused Premji to PW-16 Rameng and PW-2J. Dinesh Chandra. Similarly, PW-8 Meghji and PW-11 Gokulji were also produced as eye witnesses to the occurrence. We shall be dealing all these aspects one by one with reference to the evidence documentary and ocular led by the prosecution in order to ascertain whether any offence has been proved beyond reasonable doubt against these accused persons.
6. So far as eye witnesses are concerned, PW-8 Meghji and PW-11 Gokulji were found reliable by the trial court. But in our thoughtful consideration there are material contradictions and other salient factors which infringes their testimonial value. Admittedly both these witnesses are related to the complainant party and, therefore, their testimony shall be scrutinised with care. Once that approach is made and the court is satisfied that the evidence of such a witness have a ring of truth, their evidence could be relied upon even without corroboration. Normally a witness is held to be independent unless he is suffering from tented source i.e. unless the witness has cause such as enmity against accused to implicate him falsely. Ordinarily a close relative would be the last person to save the real culprit and falsely implicate an innocent person. In the matter at hand no where it has been indicated in the cross- examination of these witnesses that they had ever any grudge not to speak of enmity against the accused person to implicate them falsely. However, being close relative of the prosecution witnesses their testimony has to be scrutinised with care and caution to exclude false implication.
7. Keeping in view the afore stated legal requirements in mind we have scrutinised the evidence of these witnesses and for the following reasons we do not find them fully reliable,
8. PW-8 Meghji has stated that he alongwith Gokulji has left for "garba" dance at 8.00 P.M. and while passing by the house of deceased Pramila he heard cries of a lady and, therefore, peeped into the house through a window and saw all the seven accused inside the house who were beating Pramila by fists and foot blows. At that time Narain accused was saying that the girl is of loose character and that second marriage of kevji will be performed, This witness observed the above occurrence for about half an hour yet did not intervene nor raised hue and cry to help the dansel in distress and straightway went to see the "garba" dance. According to Meghji, Gokulji saw this occurrence alongwith him. for "garba". In the cross-examination he admits that in "garba" dance there were about 200-250 persons of the village yet he had not disclosed the incident to anybody nor he raised any hue and cry at the place where he saw the occurrence. He further admits that after two days he came to know that Pramila is missing from her inlaws house yet he did not disclose the occurrence he saw two days ago either to the family members of Pramila or to anybody else.'
9. PW-11 Gokulji has also deposed that he alongwith Meghji has seen from "SAAL" standing outside the house of Pramila the beating of Pramila by seven accused though he remained on the occurrence for ten minutes only. He has also admitted not to have disclosed the occurrence to anybody else though closely related to the family of deceased. In the cross-examination he admits that he has not seen anybody maltreating Pramila or giving beating to her. In the court statement he has exaggerated his version that accused Narain was sitling on a cot and was encouraging other accused persons to give beating to Pramila and that Narain also said at that time that Pramila will be killed and her husband Kevji will be married second time. However, this fact was not found mentioned in Ex.D/2 and Ex.D/3 statements recorded under Sections 161 and 164 Cr.P.C. respectively. Though both the witnesses PW-8 Meghji and PW-11 Gokulji have stated in court that Gokulji remained on the place of occurrence for ten minutes only, however, Gokulji in his statement under Section 161 Cr.P.C. in portion "A" to "B" has stated to the contrary that both of them have left together the place of occurrence. Similarly, in portion "C" to "D" of Ex.D/2 Gokulji has again deposed that both the brothers have seen the occurrence not from the window but from "padsaal". There were other material contradictions in the statement of PW-11 Gokulji which, were contradicted by him rendering his testimony not of sterling worth.
10. Man Singh PW-34, Investigating Officer, has also not deposed in the Court nor mentioned in the memos Ex.P/9 to Ex.P/16 any window on "padsaal" nor the place from where both these witnesses peeped into the house and saw the occurrence which fact also destroys the veracity of both these witnesses.
11. Had PW-8 Meghji and PW-11 Gokulji seen the cruel beating, yet being close relative of Deveng PW-32, they were expected to intervene and help the lady in distress then and there or atleast they should have informed PW-32 Deveng who was the father of Pramila and was resident of same village.
12. In Babuli v. The State of Orissa(l), as also in catina of judgments the Apex Court has held that when the witnesses are not disclosing the names of accused persons for about 20 hours, their testimony looses importance. Similarly, in State of Orissa vs. Mr. Brahmananda Nanda (2), the Apex Court has held that when eye witnesses are not disclosing names of assailant for a day and half, their credibilily suffers. In the matter at hand even after coming to know of the fact that subsequent to cruel beating seen by these two witnesses Pramila was found missing from her in laws house for two days they did not disclose the factum of beating seen by them to the family members of Pramila. All these factors emerging in the prosecution evidence have not been appreciated by the trial court and reliance on these witnesses was placed by it which to our mind is contrary to the established legal principles of appreciation of evidence.
13. So far as extra judicial confession of accused Premji is concerned, PW-16 Rameng and PW-21 Dinesh Chandra have been produced on behalf of the prosecution and relied upon by the trial court. Before an extra judicial confession is relied on, it must to clear and unequivocal. The alleged confession shall be read as a whole and not to be dissected or bifurcated to the advantage of either party. Similarly extra judicial confession is made to a person closely acquainted with the accused or to a person having status in a society who could be helpful to the accused. The said confession is often made to a person whom the accused thinks to be friend, philosopher or guide. In this respect Sandeep vs. State of Haryana (3), State of U.P. vs. M.K. Anthony (4) and a plethora of other judgments can be referred to.
14. In the matter at hand PW-16 Rameng has stated that on 11.10.1994 at about 5.00 P.M. he alongwilh Dinesh Chandra were standing at bus stand Bagidora in order to board the bus for Ahmedabad. There Premji Patidar met them with a gloomy face. Both these accused persons asked Premji how he was so sad today. At this, Premji disclosed that in their family there was characterless Pramila whom he alongwith Kevji and other co- accused persons have murdered. Upon this both these witnesses told Premji not to talk like lunatics and boarded their bus for Ahmedabad. In the cross-examination he has admitted that though Premji was his friend yet they never used to go to the house of each other. This witness has also exaggerated in the court statement with regard to the fact of going to Ahmedabad because according to Ex.D/1 statement under Section 161 Cr.P.C. he went Banswara instead of Ahmedabad. Rameng has also deposed that he and Dinesh returned to Bagidora on 15.10.1994 and learnt about murder of Pramlla and thereafter they disclosed the extra judicial confession to Deveng and also to police. However, this fact is not corroborated by PW-32 Deveng as also by PW-34 Man Singh Station Mouse Officer of Police Station Kalinjara.
15. PW-21 Dinesh Chandra has deposed that Premji was not his brother but was a caste fellow whereas according to PW-16 Rameng both were real brothers. PW-21 Dinesh Chandra has stated that after returning from Ahmedabad both these witnesses went to their respective houses and thereafter went together to the house of Deveng, father.of Pramila, and disclosed the factum of extra judicial confession. This witness does not disclose that thereafter they went to police station. PW-21 Dinesh Chandra has also given exaggerated version in the court thereby contradicting the previous statements Ex.D/6 and D/7. In police statement it has not been stated that both these witnesses went from Banswara to Ahmedabad. Similarly in police statement Ex.D/7 it is not mentioned that Pramila was murdered. This witness has admitted that the house of Deveng was not far from his own house yet he has not informed either father of the deceased or any other person. This witness has also admitted that accused Premji was not his close friend and, therefore, Premji and he himself never went to each other's house. Apart from me the language used by Premji accused while making extra judicial confession and as disclosed by both these witnesses is not identical. According to PW-21 Dinesh Chandra, Premji accused confessed in his own local dilect whereas PW-16 Rameng is silent about the language used by Premji. In order to inspire confidence both these witnesses should have stated as far as possible the same words which were spoken by Premji accused in their presence. When neither of these witnesses were of any status nor accused Premji has any fiduciary relationship with the accused nor was he holding them in highest team nor were they friends, philosophers or guide and hence were not helpful to the accused then what for accused Premji shall take them into confidence o confess the guilt. The learned trial court has not taken all these aspects in mind and have relied upon the extra judicial confession made before these witnesses which to our mind is devoid of legal sanctity.
16. So far as circumstantial evidence is concerned, it is well established rule of criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused person's conviction if it is of such a character that the same is wholly inconsistent with innocence of the accused and is consistent with his guilt. The incriminating circumstances for being used against the accused must be such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. In a case of circumstantial evidence the endeavour and effort of the court should be to find out whether the crime was committed by the accused and the circumstances proved form themselves into a complete chain unerringly pointing to the guilt of the accused. If the circumstances proved against the accused in a case are consistent either with the innocence of the accused or with his guilt, he is entitled to the benefit of doubt. Reference in this connection may be made to a Constitution Bench judgment of Apex Court In the case of M.G. Agarwal v. State of Maharashtra (5), Roony Ronald James Alwaris and Ors. v. State of Maharashtra (6), Joseph v. State of Kerala (7), as also latest Judgment Kanhai Mjshra @ Kanhaiya Misar v. State of Bihar (8. Keeping in view the aforesaid-stated legal requirements in mind the circumstances proved by the prosecution are one by one dealt with hereinafter.
17. The first circumstance relied by the prosecution is regarding gathering of Samaj with regard to maltreatment meted out to Pramila by the inlaws. The so called gathering was done at the house of Deveng by social reformers of the caste as it was slur for the Samaj if a married girl resides in the parental house and, therefore, Pramila was sent to her iniaws house. In the above gathering no one from inlaws side was called nor any intimation given. In this respect PW-7 Govindji, PW-9 Vakta and PW-10 Hukamraj can be referred to. This circumstance does not connect the accused persons in any way to the guilt. If at all Pramila was not happy in her inlaws family and was not willing to go to inlaws house, atleast in the so called gathering done in the house of Deveng somebody from the inlaws side should have been called and they should have been warned not to ill-treat Pramila. Sans it this circumstance is not helping the prosecution.
18. The second circumstance relied by the prosecution is presence of accused persons in their own house. This circumstance is also natural one and cannot go against them. Because accused persons are expected to remain in their own house who are husband, mother-in-law, sister-in-iaw and their husbands, therefore, their presence in the house of Kevji is not incriminating circumstance against them.
19. The third circumstance relied by the prosecution is with regard to the statement of PW-6 Vakla and PW-15 Lalu who deposes that they have seen accused Narain and Premji going on a motor cycle from village Bagidora towards Kalinjara. Narain was driving the motor cycle and Premji was sitting behind him and there was something in between them which was covered by some cloth. According to the prosecution after killing Pramila her body was cut into pieces by hiring accused Shamim @ Tamulala and thereafter the pieces were put into some bag and transported by these two accused persons on motor cycle and thrown in Tilwani Dam from where naked and hacked pieces of body were recovered. Both these witnesses have admitted that they could not tell as to what was inside the bag. Unless and until it is proved that both these accused persons were disposing of cut pieces of the dead body of Pramila, this circumstance cannot connect the accused persons. Despite that there are material contradictions between these two witnesses. According to PW-6 Vakta, Narain was driving the motor cycle and Premji was sitting behind him whereas according to PW-15 Lalu, Premji was driving the motor cycle and Shamim Khan was sitting behind him. According to Vakta the time was between 8-8.30 P.M. whereas according to Lala it was 9:00 P.M. These two witnesses have also exaggerated their versions in the court. PW-l5 Lalu has been contradicted by his police statement Ex.D/5 from portions "A" to "B" and "C" to "D" in which word motorcycle has been overwritten. Therefore, this circumstance is also neither proved by the prosecution agency nor it is connecting the accused persons to the guilt.
20. The last circumstance relied on by the prosecution is recoveries of articles made at the instance of the accused persons which are clothes and ornaments as also currency notes and a motor cycle. The faclum of recovery we shall be dealing with at a later stage. The legal position with regard to the recoveries made from the accused persons in pursuance of their disclosure statements under Section 27 of the Indian Evidence Act are as under. Under Section 27 of the Indian Evidence Act, 1872 information by accused leading to recovery of crime weapons is admissible but such admissibility of such information does not render the evidence pertaining to information reliable. According to the Apex Court's pronouncement of Kami v. State of M.P. (9), while testing reliability of such evidence the court must see whether it was voluntarily stated by the accused, if on facts information given by the accused under Section 27 is found to be voluntarily given and further that in pursuance of such information crime articles are recovered at the instance of accused person and proved so by cogent and convincing evidence then and only then such facts discovered can be used against the accused person. But admissibility alone would not render the evidence pertaining to the above information reliable. Where place of concealment is already known to police such recovery at the instance of the accused looses importance because in such circumstances the said recovery cannot be said to be on the basis of disclosure statement of the accused, in this respect K.M. Dugal v. State of Goa (10), can be referred to. Even if some articles are recovered at the instance of the accused persons, unless and until those articles implicate the accused jn commission of the crime the said,recovery looses significance.
21. In the matter at hand one knife was allegedly recovered from accused Shamim @ Tamulala on the basis of disclosure statement. Shamim Khan accused gave two disclosure statements under Section 27 of the Indian Evidence Act. On 18.10.1994 at 8.00 A.M. he gave Ex.P/44 with regard to recovery of dagger and at 11.00 A.M. Ex.P/45 with regard to recovery of Rs. 5,000/- which he received for culling into pieces me dead ' body of Pramiia. Both these informations were not given before any independent person but only to PW-34 Man Singh, Station House Officer, Kalinjara who too has not disclosed any reason why independent persons were not involved when this accused made disclosure statements. Therefore, to some extent these disclosure statements lose importance. Similarly, on the basis of above informations dagger was recovered at 9.00 A,M. through seizure memo Ex.P/7 in presence of Kalia PW-4 and Badia PW-20. But Kalia PW-4 has not deposed with regard to recovery of dagger. However, PW-20 Badia has admitted in cross-examination that the place where accused pointed out to have thrown the dagger was different from the place where it was recovered. The dagger so recovered was also not sealed then and there nor any blood stains were visibly found on It. Even in the trial court this dagger has not been exhibited and shown to the witnesses. Similarly the currency notes recovered at the instance of this accused also does not connect him to the crime. There was no necessity of hiring this accused for cutting into pieces the dead body of Pramiia as it has not been proved that he was a confident of the accused persons or was even hand in gloves with them. Therefore, these recoveries at the instance of Shamim Khan does not advance the case of the prosecution.
22. Smt. Gangaalso allegedly gave Ex.P/43 discovery statement on 17.10.1994 at 12.15 P.M. that after doing away with Pramiia they have placed the ornaments found on the dead body in the kothi of their own house. On the same day at 1.15 P.M. in presence of Badami Lal PW-22 the ornaments were recovered and seized through Ex.P/11. These have also not been sealed because no blood stains were found on them and, therefore, this recovery is not connecting the accused persons with the crime. Even otherwise Pramiia deceased immediately prior to occurrence was residing in her inlaws house and in natural consequences thereof her ornaments should have been placed from where they have been recovered.
23. Motor cycle has been recovered from accused Narain Lal on the basis of discovery statement Ex.P/42 whose seizure memo is Ex.P/13 which also does not connect the accused person with the crime because it also does not contain any blood stains nor the prosecution witnesses who have seen this motor cycle driving by accused person have identified it by way of its registration number.
24. Accused Premji has given a disclosure statement Ex.P/41 to the effect that this accused alongwith co-accused have murdered Pramiia in their own house and thereafter disposed of the dead body with the help of Shamim Khan. Nothing in pursuance of this disclosure statement has been recovered except pointing out of the place of occurrence. Admittedly occurrence took place on 8.'10.1994 whereas the place of occurrence has been pointed out on 16.10.1994 which was residential house of Kevji etc. Even the perusal of Ex.P/15 to P/17 does not indicate that any sign of committing crime was visible on 16.10.1994, therefore, these memos also loose importance.
25. Though burden of proof was on the prosecution agency which have miser- .
ably failed in proving the guilt, yet there were circumstances which falsifies the prosecution version. Had the accused persons committed murder of Pramiia they should not have sent information to the parents of Pramiia with regard to her missing from inlaw house and thereafter should not have lodged an FIR Ex.P/32 in police station Kalinjara on 11.10.1994 to the above effect that their daughter-in-law Pramiia is missing from their house since 8.00 P.M. of 9.10.1994. No accused person ordinarily invites trouble by calling police and will as far as possible detract the attention of the investigating agency.
26. The postmortem was done by a board of doctors out of whom only PW-30 Dr. Ashok Gupta was examined to prove postmortem report Ex.P/29. The witness has admitted in cross-examination that whether Pramila died due to asphesia can be ascertained from the lungs which were missing. The tongue was protruding out of mouth, therefore, they were of the opinion that perhaps she has died due to some stangulation. In the last para of his cross- examination Dr. Gupta has admitted that the board was not of firm opinion about the date, time and cause of death of Pramila and, therefore, has seized and sealed the truncated part of the body for the opinion of the Forensic Science Laboratory. The prosecution agency has not cared to get any report from the Forensic Science Laboratory, Jaipur which also destroys their case.
27. The learned trial court has cursorily dealt with the documentary and oral evidence led by the prosecution and was myred to convict the accused person because a young lady was done to death. It was expected from the court below to have carefully scrutinised the evidence cogently and then to have arrived at a correct conclusion.
28. In our view the charges against the accused persons have not been proved beyond doubt and, therefore, we accept this appeal, set aside the judgment and conviction of the trial court and acquit the accused persons. The accused persons are in custody, they be released forthwith if not required in any other case. The case property lying in the trial court will be disposed of by the trial court.