Rajasthan High Court - Jaipur
Babu Lal Alias Babu Ram vs The State Of Rajasthan on 20 February, 1992
Equivalent citations: 1992(1)WLN308
JUDGMENT B.R. Arora, J.
1. This appeal is directed against the judgment dated September 6, 1984, passed by the Additional Sessions Judge, Sri Ganganagar [Camp Sri Karanpur), by which the learned Additional Sessions Judge convicted and sentenced the accused-appellant Babu Lal alias Babu Ram for the offences under Sections 302, 201 and 380 IPC.
2. Accused-appellant Babu Lal was tried by the learned Additional Sessions Judge, Sri Ganganagar (camp Sri Karanpur) for committing the murder of one Niyamat Ram. The case of the prosecution is that deceased Niyamat Ram was running a shop in village 24-F of district Ganganagar. His family used to reside in village Kaminpur which is at a distance of 3 kilometres from village 24-F and deceased Niyamat Ram used to come to village Kaminpur to take his meal in the afternoon and used to carry his dinner in a tiffin to village 24-F, where he used to sleep in the night. On February 27, 1984, deceased Niyamat Ram did not come to Kaminpur for taking his meal in the afternoon and, therefore, his son Prem Kumar PW 1 came to village 24-F and found that the shop of his father was locked. He enquired from one Tota Singh the neighbourer of the shop of his father and was informed that the shop is closed since morning. In the evening, he alongwith his uncle Sawan Das, again, went to village 24-F in search of his father, but he was not available. In the morning of February 28, 1984, he again went to village 24-F. At that time again, he found the shop of his father closed. He, thereafter in the presence of Tota Singh, Hakam Singh and Harpal Singh broke-open the lock of the shop and on opening the shop, they found the saafa stained with blood. The shoes of his father were, also, found lying in the shop. A suspicion arose and, therefore., they made a search of Niyamat Ram and found the blood-stained Chaddar of his father lying near the cremation ground and, also, the dead-body of Niyamat Ram in the fields. There was an injury on the head of deceased Niyamat Ram. A copy, in which the account was kept by his father, as well as a H.M.T. watch, which his father used to tie on his wrist, were found missing. The prosecution, in support of its case, examined 16 witnesses. The nature of evidence, produced by the prosecution consists of PW 1 Prem Kumar the son of the deceased Niyamat Ram, who lodged the First Information Report and in whose presence Ex.P.2 Panchnama, Ex.P.3 Furd Surat Haal Lash, Ex.P.4 recovery of Chaddar of the deceased, Ex.P.5 site plan of the recovery of the Chaddar, Ex.P.6 site plan of the shop, Ex.P.7 recovery of turban (Saafa), Ex. P.8 recovery of shoes, Ex.P.9 recovery of the key to the lock of the shop, and Ex. P.10, Ex. P.12 and Ex. P.24 were, prepared. PW 2 Hazara Singh is a witness, in whose presence the shop was got opened by breaking the lock and he is also a witness to Ex.P.2, Ex.P.3, Ex. P.14, Ex. P.1 5, Ex.P.17, Ex. P.19 and Ex. P.21. He is, also, a witness, before whom the accused made extra-judicial confession regarding his guilt. PW 3 Darshan Singh is a person, who accompanied Pram Kumar and in whose presence the First Information Report was lodged. He is, also, a witness in whose presence the shop was opened on February 28, 1984. PW 4 Dr. Jaswant Singh is the Medical Officer Incharge, who conducted the postmortem examination on the dead-body of Niyamat Ram. PW 5 Amar Singh is the witness, who accompanied PW 1 Prem Kumar to the Police Station and in whose presence the First Information Report Ex. P.1 was lodged. He is, also, a witness to Ex. P.2, Ex. P.3, Ex. P.4, Ex. P.5, Ex. P.6, Ex. P.7, Ex. P.8, Ex. P.9, Ex. P.14, Ex. P.15, Ex. P.16, Ex. P.17, Ex. P.18, Ex. P.19 and Ex. P. 20. He is, also, a witness, before whom the accused made an extra-judicial confession while he, alongwith Jora Singh, was sitting near the cattlepond. PW 6 Jagmal Singh is a witness to the various recoveries made at the information and instance of the accused from his house. PW 7 is Shafi Mohammed tracer, who identified the foot-prints of the accused. PW 8 Atma Ram is the witness who identified the copy (account book] of the deceased. PW 9 Thakar Ram is a witness to the recovery of trousers (Pajama) of the accused. PW 10 Malkeet Singh is the Head Constable, who has stated that the Investigating Officer Mohan Lal deposited various articles with him, which remained in the sealed condition and out of those 19 articles, 13 articles were given to Shri Munshi Ram on March 24, 1984, for handing them over in the State Forensic Science Laboratory, Jaipur, for F.S.L. examination. PW 11 is Munshi Ram Constable, who took the samples from the Malkhana of Police Station, Kesarsinghpurafrom Malkeet Singh the Malkhana Incharge of Police Station, Kesarsinghpura, on March 25, 1984 and deposited the same in the State Forensic Science Laboratory, Jaipur, on March 26, 1984. He has stated that the samples remained in intact condition through out and their seals were not tampered with. PW 12 Budh Ram is the Assistant Sub- Inspector, who took the wrist watch for identification before the Munsif and Judicial Magistrate, Padampur, and got the wrist watch identified. He is, also, a witness to the identification of the moulds conducted by this Vinay Kumar Munsif and Judicial Magistrate, Padampur. PW 13 is Ram Chandra Photographer, who took the photographs of the deadbody of deceased Niyamat Ram. PW 14 is Sugan Lal, who investigated the matter and made recoveries from the shop of. the deceased as well as prepared the site plan of the shop of the deceased. PW 15 is Mr. Vinay Kumar, Munsif and Judicial Magistrate, who conducted the identification of the wrist watch through PW 1 Prem Kumar and he got the identification of the foot-prints conducted through Shafi Mohammed. PW 16 Mohan Lal Yadav is the Station House Officer, Police Station, Kesharsinghpura, who conducted the investigation and presented the challan against the accused.
3. We have heard the learned Counsel for the appellant and the learned Public Prosecutor and perused the record of the case as well as the judgment passed by the learned lower Court.
4. There is no eye witness of the occurrence and the prosecution case rests on the circumstantial evidence as well as the extra judicial confession made by the accused-appellant Babu Lal before PW 2 Hazara Singh and PW 5 Amar Singh. The prosecution placed reliance over the following circumstances:
(1) the accused, after his arrest, pointed out the place where the Chaddar and the deadbody of deceased Niyamat Ram were thrown by him; (2) recovery of the copy at the instance and information of the accused, in which the deceased used to keep the account; (3) recovery of the wrist watch of the deceased at the instance and information of the accused; (4) recovery of the blood-stained Sabbal (weapon of offence) at the instance and information of the accused; (5) recovery of blood-stained clothes of the accused;
(6) recovery of the key to the lock made at the instance and information of the accused; and (7) foot-prints of the accused found near the deadbody.
5. We will first like to consider the Ino...case of extra- judicial confession, alleged to have been made by the accused before PW 2 Hazara Singh and PW 5 Amar Singh. PW 2 Hazara Singh has stated that after 3-4 days of the date of the incident, he and Amar Singh were sitting near the cattle-pond and were talking together. At that time, the accused came there from the village- side and started weeping before them. At that time, he was scared and told them that he had committed a sin and had murdered Niyamat Ram and requested them to excuse him and also to save him. PW 5 Amar Singh has stated that on March 2, 1984, he alongwith Hazara Singh was sitting near the cattle-pond in the evening and they were talking together regarding the murder of Niyamat Ram. and at that time, the accused came there and started weeping. He was, at that time, very much scared and told them that he had murdered Niyamat Ram and he committed a great sin and requested them to save him. He has, also, stated that he committed the murder of Niyamat Ram because he got his brother- in-law murdered. The accused, also, told him that he killed Niyamat Ram by inflicting an injury with Sabbal. Sometime thereafter the police came and they handed him to the police. Both these witnesses have admitted in cross-examination that they had no intimacy with the accused. They have, also, admitted that they were neither the Sarpanch nor Panch. According to them, they were merely on the speaking terms with the accused. They were, also, not the persons of the caste of the accused. Both these witnesses are Jat-sikhs by caste while the accused in Mali-Rajput by caste.
6. The evidence of extra-judicial confession is a weak type of evidence and it itself cannot form the basis for conviction, but it can be used in aid to lend assurance to the other evidence produced by the prosecution. In the present case, there is no history of previous close association or intimacy of the accused with PW 2 Hazara Singh and PW 5 Amar Singh and they were not the persons who were holding any good position in the society or were having some influence in the area and, therefore, the accused could not have reposed any confidence in them and could not have deposed before them regarding committing of the murder of Niyamat Ram. They were not the persons of influential status nor were they in a position to help the accused in any way, that the accused could have gone, to them and had made the confession of his guilt before them. It may further be observed that nobody would like to make confession of his guilt to a person who himself is a suspect in the crime. In the present case, PW 5 Amar Singh was, also, a suspect and, therefore, the moulds of his foot-prints were, also, taken and sent for identification. In this view of the matter, we are of the opinion that the evidence of extra-judicial confession, relied upon by the prosecution, does not inspire any confidence and deserves to be ignored.
7. Now we will consider the circumstances, which have been relied upon by the prosecution. The first circumstance, relied upon by the prosecution, relates to the showing of the place by the accused where the deadbody of Niyamat Ram and the Chaddar were thrown by the accused. The accused was arrested on March 2, 1984, and according to the prosecution, the accused gave information on March 4, 1984, to show the place where he had thrown the deadbody of the deceased and the Chaddar. The recoveries of the deadbody and the Chaddar were already made on February 28, 1984, before the arrest of the accused-appellant and as such showing the places by the accused cannot be said to be a 'discovery' made at the instance of the accused. The information had already been with the prosecution from some other source and the fact regarding the recovery of the deadbody as well as the Chaddar was already discovered through some other source and, therefore, it cannot be said to be a fresh discovery made at the instance of the appellant, even if the relevant information is extracted from the accused and as such, this circumstance relied upon by the prosecution does not help the prosecution.
8. The next circumstance, relied upon by the prosecution is regarding the recoveries of the copy [Account Book maintained by the deceased], wrist watch of the deceased, Sabbal [weapon of offence) and the blood-stained clothes, i.e., shirt and trousers (Pajama) of the accused. These recoveries were made at the instance and on the informations supplied by the accused. The information under Section 27 of the Indian Evidence Act regarding copy Ex..P.25 was given by the accused on March 4, 1984, and the same was recovered vide Ex. P.37, at the instance of the accused from the wooden-box [tea carton) kept in his house on the same day. The same day, he gave information at his house regarding keeping of the wrist watch of the deceased vide Ex. P;38 and in pursuance to that information, the wrist watch of the deceased was recovered from the same wooden-box vide Ex. P. 23 from his house. The Sabbal was, also, recovered from his house, lying under a cot. The information Ex. P.33 regarding it was given on March 4, 1984, and the same was recovered at his instance on the same day vide Ex. P.24. The shirt was, also, recovered on March 4, 1984, vide Ex. P.22, on the information given by the accused vide Ex. P.39 on the same day from a box kept in his Kotha. The same is the case with respect to the recovery of the trousers (Pajama), which was recovered at his instance from the Kotha vide Ex. P. 28, where the fodder was kept. This recovery was, also, made on the information supplied by the accused under Section 27 of the Indian Evidence Act vide Ex. P.42 on March 11, 1984. So far as the recoveries of the copy, wrist watch, bloodstained clothes, i.e., the shirt and trousers are concerned, they were made on the informations supplied by the accused and from the house of the accused. It has come in evidence that at the time when the recoveries were made, the Kotha, from where they were recoveries was open and the doors were not closed and on the basis of this, it has been argued by the learned Counsel for the appellant that as the house was not in the exclusive possession of the accused, therefore, the recoveries made in these circumstances cannot be read against the accused. It is, no doubt, true that the house belongs to the father of the accused, but this Kotha, wherefrom the recoveries were made, was in the exclusive possession of the accused and these recoveries were made from the Kotha, and these things were not lying in open but the copy and the wrist watch were kept in the wooden-box while the clothes, i.e., the shirt, was kept in an iron box and so far as the trousers (Pajama) is concerned, that was concealed by the accused in the corner of the Kotha where the fodder was kept and, therefore, these things were only in the exclusive knowledge of the appellant and he got them recovered from there and, therefore, these recoveries-made are the discoveries made at the instance of the accused.
9. So far as the recovery of the blood-stained Sabbal, i.e., the weapon of offence, is concerned, that cannot be said to be a discovery made at the instance of the" accused because that was not found concealed, but that was lying in open under the cot in the Kotha wherefrom the other recoveries were already made by the police and at that time, the police was in the Kotha itself. So in this view of the matter, it cannot be said that the alleged Sabbal was discovered at the instance of the accused. Moreover, the Sabbal was not shown to the doctor in order to prove that the Sabbal can cause the injuries which were found on the person of the deceased. It has not been proved from the prosecution evidence that the injuries, sustained by the deceased, can be caused by the Sabbal and, therefore, the recovery of this Sabbal is of no use to the prosecution and this evidence cannot be read against the accused.
10. Then comes the recovery of the key to the lock, alleged to have been made at the instance of the accused. The information regarding the recovery of the key is Ex. P. 19 and the recovery was made vide Ex. P. 20. But the prosecution has not proved from the evidence that this was the key to the lock of the shop. As the key has no connection whatsoever with the lock, which was put on the shop, therefore, this evidence, also, cannot be of any help to the prosecution.
11. It is contended by the learned Counsel for the appellant that even if these recoveries are said to be made at the instance of the accused even than it cannot be read against the accused- appellant because there is no evidence on record that the sealed articles remained intact through-out till they reached the State Forensic Science Laboratory, Rajasthan, Jaipur for F.S.L examination. In this respect, the prosecution has placed on record the evidence of PW 10 Malkiyat Singh, PW 11 Munshi Ram and PW 16 Mohan Lal, and has, also, placed reliance over the report of the State Forensic Science Laboratory, Rajasthan, Jaipur. PW 16 Mohan Lal, Station House Officer, was the Investigating Officer in the case, who has stated that he kept the sealed articles in the Malkhana with PW 10 Malkiyat Singh, Head Constable, and he delivered the articles in the sealed condition and at the time of depositing the same, the seals were intact. PW 10 Malkiyat Singh is the Head Constable, Incharge of Malkhana at the Police Station Kesharsinghpura, who has deposed that the Station House Officer Mohan Lal deposited with him 19 packets in the sealed condition, which were in his possession and the seals on these articles remained intact till the articles were given by him to PW 11 Munshi Ram for F.S.L. examination on March 25, 1984. He has, also, stated that the seals were never tampered with. PW 11 is Munshi Ram, Constable, who took 13 packets for chemical examination from Malkiyat Singh (PW 10), which were in the sealed condition and he deposited the same in the sealed condition in the State Forensic Science Laboratory, Rajasthan, Jaipur on March 26, 1984, and till he deposited the packets in the aforesaid Laboratory, the seals on the samples remained intact and were not tampered with. From the evidence of these three witnesses, it is, therefore, clear that the seals on these articles remained intact since the time of the articles were sealed and were delivered to PW 11 Munshi Ram on March 25, 1984. But there is one peculiar aspect of this case. PW 11 Munshi Ram took 13 packets for delivering them to the State Forensic Science Laboratory for examination, but actually he delivered only 10 packets, which is clear from the report Ex. P. 45 wherein it has been mentioned that only ten packets were received. Where the other three packets have gone, is not clear - whether the 13 packets were converted into 10 packets or three packets were not handed-over in the Laboratory, is not clear and the delivery of only 10 packets, while actually 13 packets were taken from the Malkhana, creates a doubt in the prosecution case and if the packets were opened and re-sealed then no reliance can be placed on these recoveries and in these circumstances, we are of the opinion that these recoveries are of no assistance to the prosecution.
12. Now, we will like to consider the case regarding the foot-prints of the accused found at the place of the occurrence- i.e. near the dead body. The prosecution, on this point, has placed two types of evidence. The first is with respect to the taking of the moulds of the foot-prints of the accused near the deadbody and the comparison of the same by the specimen moulds of the accused-appellant taken vide Ex. P.41. The moulds of specimen foot-prints as well as the chance foot-prints were sent to the Finger Print Bureau and the report of the Finger Print Bureau (Ex. P.44) showed the result in negative as the chance foot impression moulds are unfit for comparison being lacking sufficient edge details. Thus, this circumstance, also, does not connect the accused with the crime. The prosecution tried to connect the accused with the crime with the help of the chance moulds found near the deadbody by producing PW 7 Shafi Mohammed- a tracer who gave his opinion after seeing the chance foot- prints with that of foot-prints of various persons taken in the presence of PW 15 Shri Vinay Kumar and gave the opinion that the foot-prints of the accused-appellant, taken before the learned Munsif and Judicial Magistrate, tally with the foot-prints found at the place of the occurrence. This opinion was given by PW 7 Safi Mohammed by seeing the foot-prints on March 12, 1984, while the chance foot-prints were seen by him on February 28, 1984. He has not given any reason, on the basis of which he gave his opinion and further more the chance foot-prints was seen by him on February 28, 1984, and, therefore, there are every chance of loss of memory or the error in identification and, therefore, this evidence of the tracer, also, cannot be acted upon against the accused-appellant.
13. The combined effect of all the proved facts, taken together, as mentioned above does not answer the question essential to the proof of the offence against the accused-appellant definitely and incompatible with the innocence of the accused. The totality of the circumstance, in the facts and circumstances of the case, do not lead to the conclusion that it is only the accused, who has committed the murder, rather the chain of the circumstantial evidences not complete to fasten the accused with the guilt. On the contrary, there is only a circumstance of the recovery of the wrist watch of the deceased from the possession of the accused. But that cannot connect the accused appellant with the commission of the crime of murder of the deceased. It can only fasten the liability with respect to the charge under Section 380 I.P.C.
14. There is another aspect of the case, which creates suspicion in the prosecution case as the prosecution case does not find support from the medical evidence, also. According to the prosecution case, Niyamat Ram was murdered on the night intervening 26th and 27th February, 1984 and the report of the incident was lodged on February 28th 1984. The postmortem on the deadbody of deceased Niyamat Ram was conducted by PW 4 Dr. Jaswant Singh - the Medical Officer Incharge, Kesharsinghpura, on February 28, 1984 at 5.00 p.m, and the medico-legal report EX. P 21 is on record. According to PW 4 Dr. Jaswant Singh, the death of the deceased took place within 24 hours of the post-mortem examination. Thus, according to the medical evidence, the death of Niyamat Ram must have taken place after 3.00 p.m. of February 27, 1984, while according to the prosecution case, the death of Niyamat Ram took place in the intervening night of 26th and 27th February, 1984. The conduct of PW 16 Mohan Lal the Investigating Officer in the case-also, raises a suspicion in the impartial investigation of the case, At the initial stage, PW 5 Amar Singh was also suspected in the crime and, therefore, the moulds of his specimen foot-prints were taken by the Investigating Officer on February 29, 1984. A specific question was put to him in the cross-examination by the defence counsel that Amar Singh (PW 5) was, also, a suspect in the crime, but he denied the same. Though the Investigating Officer has denied this fact, but this fact is borne-out from the report of the Finger Print Bureau, Rajathan, Jaipur (EX.P. 4) wherefrom it is clear that the specimen moulds of Amar Singh S/o Shri Baba Singh, were prepared on February 29, 1984, which were sent for examination. It is not expected from the Investigating Officer to tell a lie in the Court and should make a statement before the Court which is contrary to the record. He could have explained the fact regarding the sending of the moulds of Amar Singh to the Finger Print Bureau rather than denying this established fact.
15. For the reasons aforesaid, we therefore, do not find any case connecting the accused with the crime for the offences under Sections 302 and 201 I.P.C. The accused-appellant, therefore, deserves to be acquitted for the offences under Sections 302 and 201 I.P.C. But, however, we are of the opinion that so far as the ingredients of the offence under Section 380 I.P.C. are concerned, they are fully proved against the accused-appellant and he has rightly been convicted and sentenced by the learned lower Court for the offence under Section 380 I.P.C. We, therefore, maintain the conviction as well as the sentence, passed by the learned lower Court against the accused-appellant for the offence under Section 380 I.P.C.
16. In the result, the appeal, filed by the accused-appellant is partly allowed. The conviction and sentence of the appellant under Sections 302 and 201 I.P.C. are set-aside and the accused- appellant is acquitted of the offences under Sections 302 and 201 I.P.C. But, however, the conviction and sentence, passed against the accused-appellant Babu lal alias Babu Ram for the offence under Section 380 I.P.C. are maintained.