Full Judgment
S.S. Byas, J.
1. Accused Biharidan was convicted under Section 302 IPC and sentenced to imprisonment for life by the learned Sessions Judge, Jodhpur by his judgment dated November 11, 1976. The accused has come-up in appeal and challenges his conviction.
2. The prosecution case is short and simple and may, briefly, be summarised as under:PW6 Smt. Ucchabkanwar is the daughter of the accused and the wife of PW 2 Fatehdan. The appellant has one more daughter Smt. Bhanwari Devi (Co-accused, acquitted by the trial court), who was married to Khetdan. The appellant had a son Devidan. PW 2 Fatehdan had a sister Sagar Kanwar, who was married to Devidan. A couple of months before October, 1975, Devidan passed away. The appellant's wife Smt. Chandra (also co-accused and acquitted by the trial court) took Sagar Kanwar to an unfortunate person and held her ill-luck as responsible for the death of Devidan. The relations between Smt. Chandra and Sagar Kanwar became strained and despite that Sagar Kanwar continued to live in the family of the appellants in village Tameriya Khurd P.S. Pipar City District Jodhpur. Ucchab Kanwar PW 6 came to her parent's house in Tamariya Khurd before Deepawali Samvat Year 2028 to have her first delivery there as is the custom prevalent in this part of the State.
3. In the mid-night somewhere before October 25, 1975, when the members of the appellant's family and Sagar Kanwar were sleeping in their house, Smt. Bhanwari Devi and Smt. Chandra Devi over-powered the sleeping Sagar Kanwar by holding her hands and feet. Accused Bihari Dan sat on her chest and throttled her to death. When Ucchab Kanwar PW 6 tried to raise protest, the accused threatened to kill her also. Accused Bihari Dan thereafter went out of the house and brought his brothers Jeevrajdan and Khetdan. They and the appellant threw her dead body in the water-reservoir situate in the house. The appellant spread a false story that Sagar Kanwar had gone to her brother's house in village Butechi or some where else. Ucchab Kanwar PW 6 did not remain silent and told that her dead body was thrown in the water reservoir. The appellant collected some persons of the village and in order to show his innocence, efforts were made to find-out the dead body in the water reservoir. The dead body was thereafter taken out. When the appellant and the members of his family were taking Sagar Kanwar's dead body for cremation, PW 8 Smt. Gulab Kanwar, who resides nearby, asked as to how Sagar Kanwar had died. The appellant and his wife told that Sagar Kanwar committed suicide by drowning her self in the water reservoir. Gulab Kanwar told that it was a false story because in the preceding mid-night she had heard the shriek. She further told the appellant and Ors. that Sagar Kanwar was killed and murdered. The appellant and his wife took Smt. Gulab Kanwar in a corner, confessed their guilt before her to have killed Sagar Kanwar and requested her to keep her lips tight and not to divulge the matter to any body. Smt. Gulab Kanwar assured them that she would not lay open the secret to any body. The dead body of Sagar Kanwar was thereafter taken to the cremation ground and the cremation was performed. Smt. Gulab Kanwar (PW 8) could not remain silent and she sent the message of Sagar Kanwar's murder to her brother Fatehdan (PW 2) through one Chothmal. Chothmal contated Fateh Dan in his village Butechi and conveyed the message to him. Fatehdan came to village Tamariya Khurd where he learnt that his sister Sagar Kanwar was killed and murdered by the appellant and his wife, daughter, son and cousins etc. Gulab Kanwar (PW 8) also told him what was told to her by the appellant and his wife. Fatehdan took his wife Ucchab Kanwar to his village Butechi. From there, he went to the Police Station, Pipar City and presented written report of the crime on October 29, 1975. He did not find the Station House Officer there. He again went on October 31, 1975 and thereafter twice or thrice, but the Police Pipar City did not register a case. On November 20, 1975, he presented the typed report Ex.P 2 before the Deputy Inspector General of Police, Jodhpur, who forwarded it to the Circle Officer. The Circle Officer directed the Station House Officer, Police Station, Pipar City to register the case and make investigation. The Police ragistered a case. In all six persons: Prabhudan, Jetdan, Jeevraj Dan, Smt. Chandra Devi, Smt. Bhanwari Devi and tha appellant Biharidan were arrested. The investigation revealed that Smt. Chandra w/o the appellant, Smt. Bhanwari Devi d/o the appellant and the appellant Biharidan committed the murder of Sagar Kanwar. Her dead body was thereafter hurriedly cremated by Jeevrajdan,Jetdan, Prabhu Dan and the appellant Biharidan. On the completion of the investigation, the police submitted a crime report against the aforesaid six persons in the Court of the Munsif-cum-Judicial Magistrate, Bilara, who in his turn, committed the case for trial to the Court of Sessions.
4. The learned Sessions Judge framed charges under Sections 302 and 201, IPC against the appellant Biharidan, under Section 302/34, IPC against Smt. Chandra Devi and Smt. Bhanwari Devi and under Section 201, IPC against Jeevrajdan, Jetdan and Prabhudan. They all pleaded not guilty and faced the ttial. In support of its case, the prosecution examined nine witnesses and filed some documents. In defence the accused examined six witnesses. On the conclusion of the trial, the learned Sessions Judge found no incriminating material against accused (1) Smt. Chandra Devi; (2) Smt. Bhanwari Devi; (3) Jeevraj Dan; (4) Jetdan; and (5) Prabhudan to connect them with the murder of Sagar Kanwar or her cremation. These live accused persons were, therefore, acquitted. The learned Sessions Judge also found no incriminating material for offence under Section 201, IPC against the appellant Biharidan. The charge under Section 302, IPC was, however, found duly established against him. Accused Biharidan was, therefore, convicted under Section 302, IPC and sentenced as mentioned at the very out-set. Aggrieved against his conviction, the accused has taken this appeal.
5. We have heard the learned Counsel for the appellant and the learned Public Prosecutor. We have also gone through the case file carefully.
6. The unfortunate part of the case is that the case was registered at the Police Station nearly after one month of the alleged incident. The dead body was cremated long before the case was registered. As such, the medical evidence relating to the cause of death of Sagarkanwar could not be procured.
7. In order to bring home the guilt to the accused the prosecution adduced both--direct and circumstantial evidence. The direct evidence is that of the appellant's daughter Smt. Ucchab Kanwar (PW 6). The circumstantial evidence is that of the extra-judicial confession of the appellant alleged to have been made by him before (PW 8) Smt. Gulab Kanwar. The learned Sessions Judge accepted the evidence of (PW 6) Ucchab Kanwar and (PW 8) Gulab Kanwar as reliable and treated them as witnesses of truth. The delay in lodging the FIR was held as having no material consequence on the merits of the case.
8. In assailing the conviction, the first contention raised by Mr. Doongarsingh is that (PW 6) Smt. Ucchab Kanwar has been wrongly treated as witness of truth. Though she was the daughter of the appellant, she was also the wife of (PW 2) Fatehdan. The deceased Sagar Kanwar was the real sister of Fatehdan. PW 6 Ucchab Kanwar was living with her husband Fatehdan and was, therefore, under his pressure. Independence and impartiality could not be, therefore, expected from (PW 6) Smt. Ucchab Kanwar. It was also argued that in the FIR Ex.P 2, though lodged nearly after a month of the alleged incident, the name of (PW 6) Smt. Ucchab Kanwar is completely missing. It was urged that from the contents of Ex. P2, it does not appear that PW 6 Smt. Ucchab Kanwar was living with her parents in village Tamariya Khurd. if Smt. Ucchab Kanwar had really seen the incident and narrated it to her husband Fatehdan (PW 2), there could have been no delay in lodging the report to the police. It was, on the other hand contended by the learned Public Prosecutor that Smt. Ucchab Kanwar (PW 6) being the daughter of the appellant, could not be expected to tell lies and introduce falsehood against her own father. We have taken the respective submissions into consideration.
9. There is considerable weight and merit in the contention of Mr. Doongarsingh that (PW 6) Smt. Ucchab Kanwar was wrongly treated as a witness of truth. She is the wife of (PW 2) Fatehdan, though she is also the daughter of the appellant. She is living with her husband Fatehdan. She has alleged to have seen the incident and also the dead body being carried for cremation. She raised no protest and observed complete silence. In her cross-examination, she admitted that she apprehended danger to the life of the deceased Sagar Kanwar and informed her also. She advised the deceased to leave the appellant's house and to go to her brother's Fatehdan (PW 2) house. Had it been so, the deceased would have certainly left the appellant's house and would have gone to her brother's house. It is interesting to note that according to this witness, the appellant, his wife Smt. Chandra and his daughter Smt. Bhanwari Devi jointly committed the murder of Sagar Kanwar. Smt. Chandra and Smt. Bhanwari Devi overpowered Sagar Kanwar. caught hold of her hands and the appellant strangulated her. She (the witness) has been disbelieved in respect of the co-accused Smt. Chandra and Smt. Bhanwari. When she has been disbelieved in respect of two out of three, prudence requires that her testimony in respect of the appellant should not be readily believed unless some corroboration from other sources is forthcoming. There is no corroboration in support of her testimony as against the appellant Biharidan. It is true that the court has a right to accept a part of the testimony and to reject the other part. But when a witness has been disbelieved against two out of the three miscreants, a very cautious approach is required before a part of the testimony is accepted. When the part of her testimony that Smt. Bhanwari Devi and Smt. Chandra Devi over-powered the deceased victim and caught hold of her hands and feet, has been disblieved, it is difficult to believe the residue of her testimony that it was the appellant who had throttled Sagar Kanwar to death. The learned Sessions Judge was much impressed by the fact that she is the daughter of the appellant and would, therefore, not readily depose against him. But he has over-looked the fact that she is the wife of (PW 2) Fatehdan, who was brother of the deceased victim and has been living with him after the incident. Naturally, being under the influence of her husband, absolute impartiality and independence cannot be expected from her. On a close scrutiny of what she testified, we are unable to put absolute reliance on what she deposed against the appellant. She is not a dependable and reliable witness and the conviction of the accused cannot be maintained on what she stated.
10. The other formidable piece of evidence, according to the learned Sessions Judge, is the extra judicial confession alleged to have been made by the appellant before PW 8 Gulab Kanwar. She stated that in the unfortunate night of the incident, she was sleeping in her house. In the mid-night, when she woke-up to urinate, she heard shrieks from the house of the appellant. She could not re-collect as to whether the shrieks were raised by a male or female. Next day, when she got-up in the morning, she saw that the appellant and one Nathudan were collecting the firewood for the cremation. She asked them as to what had happened. Devidan told he that Sagar Kanwar fell down in the water reservoir and has died. She told him that Sagar Kanwar was murdered in the night. After sometime, the appellant and his wife Smt. Chandra came to her and confessed the guilt before her. They touched her feet and requested her to keep her lips tight and not to divulge the secret to anybody. She assured them that she would remain silent and would not lay open the secret to anybody. She, however, could not remain silent and asked a man (Chothu Ram) who was going to village Bucheti to inform Sagar Kanwar's brother Fatehdan that Sagar Kanwar had been killed. There was a material departure in what she stated during trial from that she had stated in her police station Ex. P 7. She was declared hostile and was confronted with Ex. P 7.
11. There is a number of distrusting and disquieting elements in her testimony, which seriously injure her credit. According to her, she knew that Sagar Kanwar was murdered. Her dead body was taken for cremation in her presence and yet surprisely, she remained silent, raised no protest and allowed the dead body to be carried for cremation. Her conduct is highly unnatural and abnormal. In her cross-examination she stated that when Fatehdan (PW 2) came next day to her village Tameriya Khurd, she did not meet him and had no talks with him. PW 2 Fatehdan, on the other hand, stated that he met this witness and it was she who disclosed the appellant's extra-judicial confession to him. This contradiction between the statements of this witness and PW 2 Fatehdan cannot be lightly passed-over, or ignored. If she did not disclose the extra-judicial confession to PW 2 Fatehdan, Fatehdan could not have mentioned it in the FIR Ex. P 2 lodged by him. She stated that the extra-judicial confession was made before her by the appellant and his wife Smt. Chandra (co-accused, acquitted by the trial Court). The learned Sessions Judge did not believe her testimony as regards the extra-judicial confession made before her by Smt. Chandra. She has been, thus, disbelieved as against one of the co-accused. Prudence again requires that the remaining part of her testimony, when he or she has been disbelieved on other part, should not be acted upon in absence of corroboration from other sources. In her cross-examination, she also admitted that she is not on speaking terms with the appellant and his wife. She further admitted that there was litigation between her and the appellant. If the relations between the appellant and this witness were not sweet and cordial, it is difficult to readily accept that and appellant and his wife would go to her and make a clean-breast confession before her.
12. An accused can be safely convicted on the basis of extrajudicial confession alone. But the pertinent question, which arises for consideration is whether the extra-judicial confession was really made? The question wether the extra-judicial confession was or was not made, depends on the credibility and veracity of the witness to whom it has been alleged to have been made. Extra-judicial confessions are, generally, made before a person on whom the maker can safely repose confidence. Extra-judicial confessions are also made before a person who is in a position to help the maker. Extra judicial confession is not made before a person who has no sweet or cordial relations with the maker or who is not in a position to help him. In the instant case, we have pointed out above that the relations between this witness and the appellant or his wife were not sweet and cordial. This witness was, also, not in a position to help the accused to save him from the penal consequences. In these circumstances, it is, therefore, difficult that the appellant would go to this witness and make a confession before her. We are, therefore, unable to give any credence to the testimony of this witness. Her statement that the appellant made an extra-judicial-confession before her, does not stand to judictal scrutiny, especially when she has been disbelieved in respect of the extra-judicial confession alleged to have been made before her by the acquitted accused Smt. Chandra Devi. The extra-judicial confession of the appellant has been falsely introduced by her and the conviction cannot be maintained on such tainted evidence.
13. The worst feature of the prosecution case is the unexplained delay in lodging the FIR Ex. P 2 by PW 2 Fatehdan. He came to know of his sister's murder within two or three days of the incident. He alleged that he went to the police station, Pipar City to lodge the report, but the Station House Officer did not accept his report and registered no case. He stated that he went several times to the police station, Pipar City for this purpose and every time he was turned away on one or the other reason by the Officer Incharge. The FIR Ex. P 2 was presented before the Deputy Inspector General of Police on November 20, 1975, nearly after one month of the incident. The allegation of PW 2 Fatehdan that he went to the police station, Pipar City several times to lodge the report, stands falsified by the statement of DW 4 Awatarsingh, who was the Station House Officer, Police Station Pipar City from February 15, 1975 to November 6, 1975. He stated that PW 2 Fatehdan did not come to the police station, Pipar City and never presented any report to him between October 25, 1975 to November 6, 1975. He never turned away Fatehdan from the police station nor refused to register any case. According to him, Fatehdan never came to the police station, Pipar City to lodge the report. He further stated that from October 25, 1975 to November 6, 1975, he alone was the Station House Officer. There was no Station House Officer at the Police Station, Pipar City by the name Pritam Singh. The allegation of PW 2 Fatehdan that he went to the Police Station, Pipar City several times to lodge the report of the incident, stands completely falsified. Apart from that, if the Station House Officer turned him out and refused to register the case, it was open to him to approach the higher Authorities. In fact, he approached the Deputy Inspector General of Police but much afterwards, that is to say, nearly after one month of the incident. This delay in lodging the FIR Ex P 2 makes the entire prosecution case highly doubtful. The delay in lodging the FIR and that too relating to a serious and heinous offence like that of murder, should be satisfactorily explained. No satisfactory explanation has been furnished in the instant case by PW 2 Fatehdan. He invented the false explanation that he went to the Police Station, Pipar City several times to lodge a report, but no case was registered. The delay in lodging the FIR in the instant case, is inexcusable and destroys the whole prosecution case.
14. We would reiterate that the appellant was convicted on the ocular testimony of PW 6 Smt. Ucchab Kanwar and the extra-judicial confession introduced by PW 8 Smt. Gulab Kanwar. These two sets of evidence stand completely broken and ruptured. There is no other evidence to connect the appellant with the death of Sagar Kanwar. It is still an open question whether the death of Sagar Kanwar was homicidal or otherwise. We are, therefore, unable to maintain the conviction of the appellant.
15. In the result, the appeal of accused Bihari Dan is allowed. His conviction under Section 302, IPC and the sentence awarded to him are set-aside and he is acquitted of the aforesaid offence. He is already on bail and need not surrender. His bail bonds shall stand cancelled.