Then a look at judgment in Bheru Singh's case shows that, therein again, entire legal position was reviewed, and in para 15 the question was posed, noticing that in that case the first information report Ex.P.42 was lodged by the accused himself in the police station, and was recorded by, Durga Shanke'r P. W. 17. It was noticed that a perusal of the report shows that, to a large extent it is confessional in nature, and the question posed was "can it. as a whole or any part of it, be admitted into evidence against the appellant"
12. Then explaining the provisions, scope, and object of Section 25 of the Evidence Act, so also Section 26, 27 of the Evidence Act, and Section 164 Cr.P.C. in para 17 it was held that, where the first information report is given by an accused himself to a police officer, and amounts to a confessional statement, proof of the confession is prohibited by Section 25 of the Evidence Act. No part of the confessional statement can be proved or received in evidence, except to the extent it is permitted by Section 27 of the Evidence Act. It was further held that, where the accused himself lodges the first information report, the fact of his giving the information to the police, is admissible against him, as evidence of his conduct under Section 8 of the Evidence Act. and to the extent it is non confessional in nature, it would also be relevant under Section 21 of the Evidence Act but the confessional part of the first information report by the accused to police officer cannot be used at all against him, in view of the ban of Section 25 of the Evidence Act. After propounding these principles in para 17, in para 18 onwards Hon'ble the Supreme Court proceeded to peruse and consider the first information report, and has been reproduced in English. That was also a case where the accused had killed his wife, so also all his five children. Then in para 19 it was held as under:
From a careful perusal of this first information report we find that it discloses the motive for the murder and the manner in which the appellant committed the six murders. The appellant, produced the bloodstained sword with which according to him he committed the murders. In our opinion the first information report Ex.P.42, however is not a wholly confessional statement, but only that part of it is admissible in evidence which does not amount to a confession and is not hit by the provisions of Section 25 of the Evidence Act. The relationship of the appellant with the deceased; the motive for commission of the crime and the presence of sister-in-law P.W. 11 do not amount to the confession of committing any crime. Those statements are non-confessional in nature and can be used against the appellant as evidence under Section 8 of the Evidence Act. The production and seizure of the sword by the appellant at the police station which was bloodstained, is also saved by the provisions of the Evidence Act. However, the statement that the sword had been used to commit the murders as well as the manner of committing the crime is clearly inadmissible in evidence. Thus, to the limited extent as we have noticed above and save to that extent only other portion of the first information report Ex.P-42 must be excluded from evidence as the rest of the statement amounts to confession of committing the crime and is not admissible in evidence.
13. In our humble opinion, the circumstances of the case in hand, and sequence of facts, are in much too close a proximity with the case in Bheru Singh, except that, in Bhcru Singh's case the victims were more in number, while in the present case the victim is only one.
2002(5)CriminalCC330
IN THE HIGH COURT OF RAJASTHAN
Decided On: 28.08.2002
Appellants: Guman Mal
Vs.
Respondent: State of Rajasthan
Vs.
Respondent: State of Rajasthan
Ratio Decidendi
"Court shall convict accused person if circumstances of case and sequence of facts proved guilt of accused person."
JUDGMENT
1. This appellant has been convicted by the learned Addl. Sessions Judge, Phalodi. vide impugned judgment dt.24.9.1999, passed in Sessions Case No. 11/ 98, for the offence under Section 302 I.P.C., and sentenced to imprisonment for life, with a fine of Rs. 100/-, in default of payment of fine, to undergo one months' rigorous imprisonment.
2. Brief facts of the case are that, 19.6.98 at about 10.30 P.M., the appellant himself appeared at the Police Station Phalodi, and submitted a written report that, he had contacted love marriage with the deceased Kamla, in the year 1985, and since then they were living as husband and wife. It was then alleged that, for the last few years the deceased was not discharging conjugal obligation with the informant, and instead had developed illicit relation with one Kishna Ram, for which she was given good counselling, and was brought back to Phalodi from Jodhpur in train today. For the whole day they kept sitting on the Bus Stand Phalodi, and in the evening they left for the village Khinchan which is at a distance of about 5-7 kms. They left on foot. It was then alleged that, on the way when they were crossing field behind Amarchand Laduram Gulechha College, falling en-route, the deceased was going ahead of him, at that time he took out sharp Barchhi. and inflicted 3-4 injuries on the head of Kamla, Kamla fell down and died.
3. On this report a case under Section 302 I.P.C. was registered, and informer accused appellant was arrested. After completing necessary investigation, charge sheet was submitted before the concerned Magistrate, who committed the case for trial to the learned trial court.
4. During trial the prosecution examined 18 witnesses, and tendered 27 documents iii evidence. Thereafter statement of the accused were recorded under Section313, wherein he took the stand that, one Kishna Ram had forcibly taken away his wife Kamla to Degana, for which, on return Kamla complained, thereafter accused went of Degana, and gave beating to Kishna Ram. On that day itself Kishna Ram threatened to kill him, and his wife. It was then given out that, on 17.6.98 Kishan Ram along with some persons came to his house at Jodhpur, and again threatened to kill this wife, which fact was informed by her to him, Apprehending danger being at Jodhpur, on 18.6.98 he came down to Phalodi. On 19.6.98 when they were sleeping in the room on their Held, at that time Kishna Ram along with three more persons came, and abducted away Kamla, and at some distance Kamla was shouting that she is being beaten. Being frightened he did not go near her. and instead straightway went to the police station, and told police people that Kishan Ram and 2-3 other persons are belabouring his wife, at that time itself police people accompanied him at the spot, and on reaching the spot, they told him to see as to whether she is live or dead, thereupon he moved her body, and informed the police people that she is already dead. In this process it is likely that his clothes may have got stained with blood, then, the appellant was taken to police station, and was belaboured by the police people in the police station till next evening, asking him to confess to have committed the murder if Kamla. Thereafter his signatures were forcibly obtained on many papers. He further disowned to have lodged any written report in the police station. With this version he pleaded innocence and to have been falsely implicated.
5. The learned trial court discussed the evidence, and found that the F.I.R. 1odged by the appellant (Ex. P.1 I), being confessional statement, cannot be used as evidence against the accused. It was also observed that F.I.R. is normally used for corroboration or contradiction of the informer if he steps in the witness box, and since the accused has not appeared in the witness box in the present case, it cannot be used against the accused, and thus this piece was excluded from being treated as a piece of evidence against the accused. However, thereafter considering the circumstantial evidence available on record, including things found on the site, false explanation tendered by the appellant, recovery of weapon of offence on the information and at the instance of the appellant, the weapon being found to be stained with blood of the same Group-B, as was the blood group of the deceased as found on her garments, and also relying upon the fact of the appellant's clothes also being found stained with human blood, and blood stains being available not only on the sleeves, and front portion, but also on the back side of the shirt, found the accused guilty, and looking to the nature of the injuries, and weapon used, found the offence to be that of murder, and sentenced him as above.
6. Assailing the impugned judgment, it is contended by the learned counsel for the appellant that, since the first information report has already been found by the learned trial court to be not capable of being used as evidence against the appellant, there is absolutely no evidence whatever against the appellant, to hold that it is the appellant who has committed the offence. It is contended that there is no reliable evidence to establish, that the weapon of offence was recovered on the information and at the instance of the appellant, it is then contended that circumstantial evidence about the appellant having been last seen with the deceased, existence of motive, and the recovery of blood stained weapon is not established by any reliable cogent, and convincing evidence. The next argument raised is that numerous prosecution witnesses have already turned hostile, and had not supported the prosecution case, about the relationship between the husband and wife (appellant and deceased) being not cordial. The last argument raised is that, in this view of the matter, the mere fact that Dhoti and shirt of the appellant were reported, by the Forensic Science Laboratory, to be blood stained, by itself, does not form a chain to establish the guilt of the appellant. On this basis it is contended that the appellant is liable to be acquitted.
7. Controverting the above submissions it is contended by the learned Public Prosecutor, that the learned trial court was in error in excluding first report from consideration in its entirety. Relying upon a judgment of Hon'ble the Supreme Court in Bheru Singh Vs. Slate of Rajasthan, reported in 1994(2) SCC-467 , it was contended, that it is only confessional part of the first information report, which is not admissible in evidence, except to the extent permissible under Section 27. However non confessional part of the first report can be used against the accused, as evidence of his conduct under Section 8 of the Evidence Act. Thus the admissible part of the first report was required to be considered in evidence, in favour of the prosecution, by properly reading the first report, and excluding the confessional part thereof. According to the learned P.P., accordingly, the findings of the learned trial court, as recorded in para 20, is required to be appropriately modified. Then controverting the other submissions it is contended that the weapon was recovered on the information given by the appellant, under Section 27 of the Evidence Act being Ex.21 and it is in pursuance thereof that the blood stained weapon of offence was produced by the appellant, and was seized vide Ex.P.I2. The documents Ex.P. 12 and 21 have been proved by the evidence of P.W.I4 Naga Ram, Investigating Officer, and in his entire cross examination all that has been put to the witness, is about Ex.P. 12 not having been scribed by him, and to this, the witness has stated that it was scribed by Ramu Ram Head Constable at his direction. In the examination in chief the witness has clearly deposed the memo to be bearing his signatures at place X to Y, and that of the accused at Eto Fon Ex.P. 12. Likewise in the examination in chief the witness has clearly deposed the memo Ex.21 to be bearing his signatures and A to B and that of the appellant being at C to D. No cross-examination has been directed on this aspect, except about Ex.P.21 not having been scribed by him, and to this, the witness has stated that it was scribed by Ramu Ram Head Constable at his direction. It is also contended that the weapon of offence, recovered from the conscious possession of the appellant, has been reported to be bearing blood of the same group, as that of the deceased, being Group-B. This coupled with the fact, that the appellant has given a wrong explanation in his statement under Section 313, the totality of circumstances, existing on record, do form a complete chain, establishing the guilt of the appellant, and also excluding his innocence on any reasonable hypothesis.
8. We have considered the rival submissions, and have gone through the record.
9. Taking the question of admissibility of the admissible part of the first information report, learned counsel for the appellant has referred to two judgments of Hon'ble the Supreme Court, being Khatri Hem raj Amulakh Vs. The State of Gujarat, reported in AIR 1972 SC-922, and Aghnoo Nagesia Vs. State of Bihar, reported in AIR 1966 SC-119. On the other hand, as mentioned above, the learned P.P. has relied upon a latter judgment of Hon'ble the Supreme Court in Bheru Singh Vs. State of Rajasthan.
10. We have gone through all the three judgments. In Nagesia's case, Hon'ble the Supreme Court proceeded on the basis that, on the basis of existence of absolute ban imposed on the confessional statement made before the police official, and defining confess;:,:., as an admission of the offence by a person charged with the offence, it was held that, a statement containing self exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which, if true, would negative the offence alleged to be confessed. It was also held that, when an admission of an accused is sought to be used against him, the whole of it should be tendered in evidence, and where a pan of the admission is exculpatory and a part inculpatory, the prosecution cannot use in evidence the inculpatory part only. However, it was held that, this principle is of no assistance to the accused where no part of his statement is self exculpatory, and the prosecution intends to use the whole of the statement against the accused. According to Hon'ble the Supreme Court, a confession may consist of several parts, and may reveal not only the actual commission of the crime, but also the motive, the preparation, the opportunity, the provocation, the weapons used, the intention, the concealment of the weapon, and the subsequent conduct of the accused. When the confession is tainted, the taint attaches to each part of it. It is not permissible in law to separate one part, and to admit it in evidence, as a non-confessional statement. Each part discloses some incriminating fact. i.e. some fact which by itself, or along with other admitted, or proved facts, suggests the inference, that the accused committed the crime, and though each part, taken singly, may not amount to a confession, each of them being part of a confessional statement, partakes of the characters of a confession. When a statement contains in admission of an offence, not only that admission, but also every other admission of an incrementing fact contained in the statement, each part of the confession, which is excluded by any provision of law, such as S. 24, S. 25 and S. 26 of the Evidence Act is to be excluded. Then in Khatri Hemraj's case again, following this Nagesia's case, it was held that the confessional statement, which was made by the accused to Sub Inspector, and which forms the basis of first information report, was not admissible in evidence, being hit by Section 25 of the Evidence Act. Significantly in para 14 of this judgment it was. however, held as under:
The statement could, however, be admitted to identify the accused as the maker of the report. The part of the information as related distinctly to the fact discovered in consequence of the information could also be admitted into evidence under Section 27 of the Indian Evidence Act if the oilier conditions of that section were satisfied.
11. Then a look at judgment in Bheru Singh's case shows that, therein again, entire legal position was reviewed, and in para 15 the question was posed, noticing that in that case the first information report Ex.P.42 was lodged by the accused himself in the police station, and was recorded by, Durga Shanke'r P. W. 17. It was noticed that a perusal of the report shows that, to a large extent it is confessional in nature, and the question posed was "can it. as a whole or any part of it, be admitted into evidence against the appellant"
12. Then explaining the provisions, scope, and object of Section 25 of the Evidence Act, so also Section 26, 27 of the Evidence Act, and Section 164 Cr.P.C. in para 17 it was held that, where the first information report is given by an accused himself to a police officer, and amounts to a confessional statement, proof of the confession is prohibited by Section 25 of the Evidence Act. No part of the confessional statement can be proved or received in evidence, except to the extent it is permitted by Section 27 of the Evidence Act. It was further held that, where the accused himself lodges the first information report, the fact of his giving the information to the police, is admissible against him, as evidence of his conduct under Section 8 of the Evidence Act. and to the extent it is non confessional in nature, it would also be relevant under Section 21 of the Evidence Act but the confessional part of the first information report by the accused to police officer cannot be used at all against him, in view of the ban of Section 25 of the Evidence Act. After propounding these principles in para 17, in para 18 onwards Hon'ble the Supreme Court proceeded to peruse and consider the first information report, and has been reproduced in English. That was also a case where the accused had killed his wife, so also all his five children. Then in para 19 it was held as under:
From a careful perusal of this first information report we find that it discloses the motive for the murder and the manner in which the appellant committed the six murders. The appellant, produced the bloodstained sword with which according to him he committed the murders. In our opinion the first information report Ex.P.42, however is not a wholly confessional statement, but only that part of it is admissible in evidence which does not amount to a confession and is not hit by the provisions of Section 25 of the Evidence Act. The relationship of the appellant with the deceased; the motive for commission of the crime and the presence of sister-in-law P.W. 11 do not amount to the confession of committing any crime. Those statements are non-confessional in nature and can be used against the appellant as evidence under Section 8 of the Evidence Act. The production and seizure of the sword by the appellant at the police station which was bloodstained, is also saved by the provisions of the Evidence Act. However, the statement that the sword had been used to commit the murders as well as the manner of committing the crime is clearly inadmissible in evidence. Thus, to the limited extent as we have noticed above and save to that extent only other portion of the first information report Ex.P-42 must be excluded from evidence as the rest of the statement amounts to confession of committing the crime and is not admissible in evidence.
13. In our humble opinion, the circumstances of the case in hand, and sequence of facts, are in much too close a proximity with the case in Bheru Singh, except that, in Bhcru Singh's case the victims were more in number, while in the present case the victim is only one.
14. Accordingly bearing in mind the principles propounded by Hon'ble Supreme Court in Bheru Singh's case in para 19, we proceed to consider the present first information report Ex.P-1 I. This Ex.P-1 I is a report signed by Guman Mai, the appellant but is said to have been scribed by Jethmal, P.W.9, and in the presence of Uda Ram, P.W. 10.
15. These two witnesses Jethmal and Uda Ram have been examined under Section 164 Cr.P.C. on 24.7.98 the statements being Ex.P-10 and Ex.P-1 4. These witnesses Jethmal and Uda Ram have been examined by the prosecution as P.W.9 and 10 P.W.9 initially disowned everything, and thereupon he was declared hostile. However on being confronted with Ex.P-10 he admitted to have given the statement before the Magistrate at Lodhpur. and admitted to have given the part A to B whereof, but chose to deny various other parts thereof. However, he has deposed to have scribed the report Ex.P. 11. Uda Ram P.W. 10 also disowned everything, and therefore he was also declared hostile. On being confronted with Ex.P-14, it bearing his signatures at A to B, he admitted to have deposed the portion C to D, but added to have said so at the behest of the police. Likewise he admitted to have given various other parts of the statement, but they were he claimed to have deposed at the behest of the police. Unfortunately for the trial, the Magistrate who recorded the statements has not been examined.
16. However, this fact is not in dispute that F.I.R. Ex.P-1 I, was submitted by the appellant, and it is not scribed by him. Be that as it may.
17. On reading of the first report we find that on the parameters propounded in Bheru Singh's case, a voluminous part of Ex.P. 11 is not hit by the bar enacted in the Evidence Act, inasmuch as the mention about the appellant having married with the victim in the year 1985 as a love marriage, both living as husband and wife since then, four children having born out of the wedlock, the victim not discharging conjugal obligations for the last two years, and maintaining illicit relations with Kishna Ram, the appellant having given good counselling to the victim in the month of March and may, and having brought her from the house of Kishna Ram, Kishna Ram and Kamla having managed to have administered beating to the appellant through anti social elements, etc. are all portions which in our opinion do not contain any confessional part, rather they are wholly non confessional, and are only narration of ancient history. Then even the later part of the first report, alleging the victim to have started harassing the appellant again and again, and therefore that day (on the day of lodging report) his having brought the victim in train from Raikabagh, and having reached Phalodi, thereafter having kept sitting at Bus Stand for the rest of the day, and thereafter both left together for the appellant's field, is also, in our humble opinion, not confessional in nature. However the subsequent part i.e. "through behind Amarchand Laduram Gulechha College", so also "when she reached at a distance of two bighas from his field, he took out sharp Barchhi from his bag and inflicted injuries to Kamla on her head with intention to kill her as a result of which she fell down, and to have inflicted 3-4 severe blows on her head on account of which she died", is of course confessional in nature, and is prohibited from being used in evidence against the appellant. We are also inclined to exclude from evidence the further later part of the report, disclosing that "leaving deceased lying on the spot he is submitted the report". After excluding the above inadmissible part, in our view there is no predicament or legal bar, against using the aforesaid admissible part of the first report in evidence, for the purpose of appreciating the other evidence led by the prosecution, likewise the factum of lodging of the first report by the appellant, on the date, and time, which is not in dispute, is also very much admissible against the appellant; under Section 8, so also under Section 21of the Evidence Act.
18.To this extent, therefore, we feel constrained to interfere with the finding recorded by the learned trial court in para 20, and we do accordingly modify the findings.
19. Now we proceed to consider the other circumstantial evidence produced by the prosecution.
20. Taking up the post mortem report Ex.P.9, (two documents have accidentally been marked as Ex. P.9. one being the postmortem report, and other being 161 statement of P.W.9 Jethmal. be that as it may), it has clearly been proved by the statement of Dr. H.L. Soni, P.W.7, how has hot been effectively cross examined to discredit his testimony, and from the perusal of the post mortem report, it is clear that the deceased did receive multiple incised wounds in crisscross manner, in the area of 12-16 X 10-16 cm. with bones (underlying right parietal & temporal) broken in pieces, spread in the cranial cavity, and in surrounding area, with brain matter coming out. and the blood spread in surrounding area. The wound involved right temporal, parietal, and occipital bone, right thumb. completely cut at the middle of terminal phalange. Right index finger completely cut at the level of proximal inter-phalange joint. The right m iddle finger cut at the level of proximal inter phalange joint, attached with skin on the medial aspect only. Thus it is clear that the deceased died a homicidal death, having been caused multiple grievous sharp edged weapon injuries on the most vital part, i.e. the head, breaking multiple bones of the head, and brain matter coming out. The thumb and index finger have also been completely cut. This circumstance indicates that whosoever may have committed the offence, has committed the offence nothing less than murder, and that the weapon used must be stained with blood of the deceased.
21. Then taking up the report of the Forensic Science Laboratory being Ex.P-24, a perusal thereof shows that, the ornaments of the deceased, the pair of Chappal of the deceased, the Kurti of the deceased, and the Barchhi, were all found to be stained with human blood of B-Group. Since it is not in dispute that the ornaments, pair of Chappal, and Kurti. belonged to the deceased, it is clearly established by Ex.P-24 that the Barchhi. examined by the Forensic Science Laboratory, was the weapon used for committing the crime.
22. Then we take up the question as to wherefrom the Barchhi has been found, and it's bearing on the case. The incident is of 19.6.98, and that very day. the F.I.R. Ex.P-11 was lodged at 10.30 P.M., and by the appellant, and since then, as deposed by P.W.14, the accused was with the Investigating Officer (P.W. 14). and was with him though he was not formally arrested, as according to the I.O.. the accused could not be arrested in absence of any evidence against him merely on the basis of F.I.R. It is in this sequence that during investigation, the accused had given information. Ex.P-21, about his having concealed one sharp edged Barchhi in his own room, situated at his own field, under the stair-case, by burying it in the ground, and then pursuant, to the information, he got it recovered, by himself taking out the buried weapon, which was taken into custody by the 1.0. P.W.14, vide Ex.P. 12. We find from the evidence that, P.W. 14 has clearly proved the Information Memo Ex.P.21, and the signatures of the accused being there at C to D, and the only cross examination directed to this witness is about the memo Ex.P-21 having not been scribed by him. and the witness has deposed that it was not scribed by him on his dictation by the Head Constable Ramu Ram. In that view of the matter, in our opinion. Ex.P-21-is sufficiently proved. Likewise regarding Ex.P-12, though the Motbirs Jethmal. and Jai Kishan, P.W.9. and P.W.I 1 have turned hostile, but then P.W. UNaga Ram has clearly proved this memo, and the signatures thereon, being E to F of the accused. A to B and C to D being that of Jethmal and Jai Kishan, while X to Y being his own signatures. Even regarding this document the witness has not been cross examined, except as cross examined qua Ex.P-12. Thus it is clear that Barchhi was recovered on the information of, and at the instance of the appellant, from his conscious possession. The I.O. has identified the Barchhi to be article Ex.18. The 1.0. has also deposed that he deposited the article in the Malkhana. and has proved the copy of the relevant entry of the Malkhana Register being Ex.P-26. and has deposed to have sent the articles to Forensic Science Laboratory with Gajja Ram. Constable. The prosecution has also examined, apart from P.W. 14 Naga Ram. P.W.I5 Gajja Ram, P.W.I6 Durg Singh, and P. W. 17 Virendra Singh, being the persons who had handled the articles form their evidence it is clear that seals of the articles remained intact from the time of seizure till it was examined by the Forensic Science Laboratory. Thus the cumulative effect of all these facts is that, since soon after the incident, the accused is in policy custody since lodging of the first report, and on his information, and from his custody, Barchhi Article 18 had been recovered, which has been found to be stained with human blood of the same group as that of the deceased.
23. In this sequence the next circumstance is of the recovery of the clothes of the appellant being stained with blood. They have been taken in possession vide Memo Ex.P-19. and vide Ex.P-24 read with the evidence of P.W. 14, 15, 16 and 17, it is established that these clothes were stained with blood of human origin, though their group has not been established. However, the fact of the clothes of appellant to have been found stained with human blood is not disputed even in his statement under Section 313. We shall consider later the effect of the explanation furnished by the appellant in the aforesaid statement under Section 313.
24. A look at Ex-19 shows that it is dated 20.6.98 at 12.30 P.M., and as observed earlier, according to P.W. 14 the appellant was with the Investigating Officer right from the lodging of the first report, i.e. 10.30 P.M. of 19.6.68. This shows that the clothes seized from the person of the appellant were on his person, right from the time of the incident, and have been found to be stained with human blood. But for the explanation, which of course is to be considered, the circumstance of the garment of the appellant being stained with human blood, which garments were on his person right at the time of the incident, is of course clearly established, and is an incriminating circumstance indicating towards the guilt of the appellant.
25. Then we come to the site plan Ex.P-1. We are dealing with the site plan, with the consciousness of the limitations about the admissibility of this site plan in evidence. This site plan Ex.P-1 has been prepared by P.W. 14, which shows that the Investigating Officer had found, that the blood was spread over an area up to 4-5' from the place where the dead body was lying, the pieces of scalp were lying scattered near the head of the deceased, and at a distance of about 4ft. from the head one of the finger of the deceased was found lying. These are the things which Investigating Officer perceived from his own senses from the spot, and are not the observations made by him on the basis of any information supplied to him, and therefore, this part is admissible in evidence, which if considered in conjunction with the post mortem report Ex.P-9. shows that the occurrence took place at this place itself.' and is not like that, the deceased may have been killed elsewhere, and thrown at this place.
26. Thus, the out come of the above admissible and believed evidence is that, the deceased was the wife of the appellant, she was carrying illicit relation with Kishna Ram, from whose house she was reclaimed by the appellant in the recent past i.e. May, 1998, and the appellant and the deceased had come from Jodhpur, by train to Phalodi, and kept sitting at the Bus Stand for the remainder of the day, and therefrom they left for the village Khichan, on foot on 19.6.1998, and thereafter on 19.6.98 at 10.30 PM the appellant was wearing clothes which were stained with human blood, there after on 19.6.98 itself, the deceased was found lying dead at the place mentioned in Ex.P-1, which dead body remained under supervision of PW-14 all over the night, and in the morning Ex.P-1 was prepared, showing the body to bearing severe head injuries, so much so that the pieces of scalp were lying scattered, and finger was lying at a distance from the dead body. Likewise, the blood had spread to the extent of 4-5', the post mortem of the dead body was conducted, and was found to have died due to homicidal injuries, since 196.98 and 10.30 PM itself, the appellant was with the police, and on his information, and at his instance, pursuant to the aforesaid information, blood stained Burchi, Article-18, has been recovered, which is stained with blood, or the same group as that of the deceased.
27. In our view these established circumstances, and material, establish a complete chain, establishing that it was the appellant and appellant alone, who is the perpetrator of the crime.
28. Now we, take up the explanation given by the appellant. In the statement under Section 313, the appellant has changed the stand, from his having reclaimed the deceased from the house of Kishna Ram, and has come with the story of Kishna Ram having abducted her and she having voluntarily returned, Then as against the version given in the first report, about Kishna Ram having got belaboured the appellant with the help of anti-social elements, he has come forward with the story of his having belaboured Kishna Ram, and Kishna Ram to have threatened him with dire consequences. Be that as it may. He has changed the date of his going to Phalodi from Jodhpur by ante dating it to 18th, instead of 19th, as mentioned in the first report. Suffice it to say that the factas-to whether he came from Jodhpur to Phalodi on 18th or 19th is not at all an incriminating circumstance, so as to be hit by Section 25 of the Evidence Act.
29. Then on the crucial part, he has come forward with the explanation that, on 19.6.98 he and his wife were sleeping in a room, on his field, at which time, Kishna Ram along with 2-3 more persons came, and forcibly abducted away his wife, his wife was crying at some distance that she is being beaten, frightened, he did not go on the spot, and straightway rushed to the Police station, and narrated that, Kishna Ram along with 2-3 persons are giving beating to his wife, and at that time itself, Police Accompanied him to the spot, and asked him to see as to whether the victim is alive or dead, on which, he moved the body, and told, her to have died, in this process, his garments got stained with blood, he was taken back to Police Station, and was given beating till next evening, on the pretext of he himself having killed Kamla, and then he was forced to sign on many papers. We may at once come to Ex.P-16, being the formal FIR in the prescribed form, contents whereof are the verbatim copy of Ex.-11, and a look at it shows that, it was received by the Additional Chief Judicial Magistrate, Phalodi at 10.45 PM, on 20.6.98. This coupled with the fact that, it is not in dispute that Ex.P-11 bears the signatures of the appellant, and since it is nowhere his case, in his statement under Section 313 that, he was made by the police to sign any paper prior to the evening of 20.6.98, the whole story propounded is clearly exposed to be false.
30. Though the appellant has tried to paint an ostensibly convincing picture, purporting to explain about the existence of the blood stains on his garments, but then since it is clearly established from Ex.P-11 that, he along with deceased had come from Jodhpur, and reached Phalodi at 12.30 Noon on 19.6.98 itself, it cannot be believed that on 19.6.98 the appellant along with the deceased was sleeping in his House at which time Kishna Ram May have come to abduct her. In the month of around 19th June, 1998, the day is the biggest one, and considering scorching hot climate of June in Phalodi, it can hardly be believed that, at a time of practically evening, the two would be sleeping inside the room, in the manner, and in the circumstances, the learned trial court is asked to be believed by the appellant.
31. At the cost of repetition, it may be recapitulated that, the FIR has been lodged at 10.30 PM, the police is at a distance of 5 kilometer from the place of incident, the FIR is a written report, got scribed by the appellant from some one, as such the incident must have taken place much prior to lodging of the FIR, and thus, it does not stand to our reason at least, that on 19.6.98 the appellant would be sleeping inside the room at around 8.30 or 9.00 P.M., so that the deceased be available to Kishna Ram and his associates for abduction.
32. That apart, the FIR is dated 19.6.98. The appellant was formally arrested on 21.6.98, and his statement under Section 313 were recorded on 29.6.98 (sic.29.6.99), and there is nothing whatever on record that during all this period of one year, to show that any action was taken, by or on behalf of the appellant, to get Kishna Ram and for his associates prosecuted, for the alleged murder of Kamla.
33. If this version of the appellant had any trace of truth, being the husband, and being falsely prosecuted for a capital offence, the natural instinct was that, he must have taken some steps, in some manner, to at lest prosecute Kishna Ram, who according to him was the real perpetrator of the crime, and the appellant claimed to be an eye-witness of abduction. Thus it is clear that the explanation given by the appellant in his statement under Section 313 Cr.P.C. is wholly bereft of truth, and is a wholly make believe story, which, in view of the above circumstances, we are not inclined to believe.
34. The net result of the aforesaid discussion is that, though for slightly additional reasons, but we are also of the view as that of the learned trial court, that the appellant has committed the murder of Kamla, which in the circumstances of the case, amounts to an offence under section 302 I.P.C.
The appeal thus has no force, and is hereby dismissed.
No comments:
Post a Comment