Shiv Kumar Sharma, J.
1. The appellants, three in number, along with Smt. Lali (wife of deceased Shravan) faced trial in Sessions Case No. 14/99 before the learned Special Judge, Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Cases Dausa (for short 'trial judge') who vide Judgment dated July 20, 2002, while acquitting co-accused Lali, convicted and sentenced the appellants as under:--
Peeru Shah, Shafi Shah and Chhote Lal:
Under Section 302 & 302/34 IPC:
Each to suffer life imprisonment and fine of Rs. 1000/-, in default
to further suffer three months simple imprisonment.
Under Section 449 IPC:
Each to suffer rigorous imprisonment two years and fine of Rs.
500/-, in default to further suffer one month simple imprisonment.
Under Section 201 IPC:
Each to suffer rigorous imprisonment eight months and fine of
Rs. 1000/-, in default to further suffer one month simple imprisonment.
Under Section 3(2)(v) SC/ST (PA) Act:
Each to suffer life imprisonment and fine of Rs. 1000/-, in default
to further suffer three months simple imprisonment.
Substantive sentences were directed to run concurrently,
2. On December 9, 1998 some unknown person gave information to the villagers of village Kasba about the death of Shravan by pasting a paper on the wall of a temple. It was alleged in the paper that Shravan's wife Lali, Peera and Shafi killed Shravan and threw the dead body into a well. The paper (Ex.P-42) reads as under:--
^^lsok esa Jheku xkao jke ls dLck&clok; Auez fuosnu gSa ljo.k dh ekSr ds fo'k; esa%&
ljo.k o ?kj okyh iRuh ykyh ds fookn py jgk gS Avkil esa bl fookn dks cq>kkus ds fy, ihjk vkSj ihjk dk HkkbZ lQh us ykyh usrhuksa us feydj fopkj cuk;s A jkf= ds djhc ukS nl cPps vUnj ds dejs esa lks jgsFks A ljo.k o ljo.k dh iRuh pwYgs ds ikl esa cSBs gq, Fks A ckgj ls ihjk [kka omldk NksVk HkkbZ laQh ckgj ls vUnj edku esa ?kqls] tSls gh ljo.k dks cSBk ns[kkrks nksuksa I;kj ls ckrs djh A dksus esa Vkapk [kjokMk cjNh j[kh gqbZ Fkh mllsbu rhuksa us mldks ekjk vkSj tc og fpYyk;k eq>s er ekjks rc cPpksa us ekj/kkMdh vkokt lquh rks cMh cPph us eka dks vkokt nh rks eka us dgk cSBk lks tk rsjsdkdk ds nsork vk jgs gSa rc cPph okfil ls lks xbZ A xsV eka us [kksyh ugha Anjoktk ds ckgj mldh iwjh rjg gR;k dj nh vkSj mlds NksVs NksVs VqdMs djds cksjhesa cUn djds lkbZfdy ij j[kdj ds mldks cUn ds ikl dksbZ cke.k okyk dqvk gS mlesa;g yksx iVddj vk x;s vkSj bUgksaus xkao dks /kks[kk nsus ds fy, eksVj lkbZfdy dkuke yxk;k gS A**
3. The informant Ram Kishan, nephew of Shravan Lal, on December 11, 1998 submitted a written report at 12.15 PM at Police Station Bandikui District Dausa with the averments that because Shravan Lal (now deceased) had some religious power, the villagers used to seek his advice in their personal affairs. Looking to the absence of Shravan continuously for a long time, the informant became anxious to know about his whereabouts but Shravan's wife Lali told that Shravan had gone out of village with two persons on motor cycle. On December 9, 1998, the informant came to know from the paper which was pasted on a wall, that Shravan was murdered. On December 11, 1998 around 10 AM while the informant was sitting infront of his shop Shafi, Peeru and Chhote Lal came to the informant and confessed that they with the help of Lali killed Shravan. Police Station Bandikui registered a case for the offence under Sections 302, 201/34 IPC and Section 3 SC/ST (PA) Act and investigation commenced. Dead body of Shravan got recovered from a well. Post mortem on the dead body was performed. The accused were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned. Special Judge, Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Cases Dausa. Charges under Sections 302, 302/34, 201, 449 IPC and Section 3(2)(v) of Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of the case examined as many as 12 witnesses and 42 documents. In the explanation under Section 313 Cr.P.C., the accused claimed innocence and in defence one witness Dw.1 Chhote Lal was examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above, but acquitted co-accused Lali.
4. The case is admittedly based on circumstantial evidence, therefore, it is necessary that the evidence adduced at the trial must satisfy three tests:--
(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;
(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.
5. Having scanned the material on record we notice that the death of Shravan was homicidal in nature. As per postmortem report (Ex.P-13) following ante mortem injuries were found on the dead body and death was caused on account of head injury as stated by Dr. Rameshwar Prasad Meena (Pw.4):--
(1) Incised wound with flap of (L) Parietal bone 15 semi separated.
(2) Incised wound with flap of (R) Parietal bone is also separated.
(3) Separation of lambidal surface of skull.
Plastic rope is tied around neck. Clotted blood dry on vest.
6. Informant Ram Kishan (Pw.l) in his deposition stated that his uncle had shadow of some deity therefore the people used to seek his advice for resolving their grievances. Absence of his uncle from the village for a long time made him anxious but his aunt Lali told him that his uncle had gone out with two persons on a motor cycle. After few days somebody pasted a paper on the wall wherein it was written that Peeru. Shafi and Lali murdered Shravan. Just about two days after while the informant, Chhaju Ram. Sita Ram and Sunder were sitting outside the office Peeru and Chhote Lal Kumhar came to them and confessed that they both with the help of Lali killed Shravan. The informant then lodged the report at police station Bandikui. In the cross examination Ram Kishan stated that the deceased had four daughters and one son. He also stated that he and deceased jointly possessed agricultural land. He got the paper exhibited, which according to him, was pasted on the wall of temple. He denied this suggestion that the paper was written and pasted by a member of his family because he wanted to grab the agricultural land belonging to Shravan and therefore they killed Shravan. Sunder Lal (Pw.2), cousin of informant, and Sita Ram (Pw.7) corroborated the testimony of Ram Kishan.
7. Santo (Pw.9), daughter of deceased, was declared hostile since she did not support the prosecution case. In her examination she stated that the appellants Peeru Shah, Shafi Shah and Chhote Lal used to visit her father while he was alive but they had never talked to her mother. She also stated that after the death of her father Hari Kishan and Ram Kishan (informant) were ploughing the agricultural land of her father. Her father had two buffaloes that after the death of her father owned and possessed by Hari Kishan out of which one buffalo was sold. After her father died and mother jailed, she was married to an old man by his uncles.
8. Alok Srivastava (Pw.11), who investigated the case, in his examination in chief stated that on December 10, 1998 he had knowledge that Shravan was missing no report was registered by him. In his cross examination he admitted that he did not go to the place where the paper was pasted.
9. It is contended by learned Counsel for the appellants that the prosecution has failed to explain as to why the report was not lodged on December 9, 1998 when the information about the death of Shravan was divulged. Why the informant took two days in submitting the report at police station. According to learned Counsel the so called extra judicial confession is untrustworthy. Recovery of weapons was also concocted. Alleged recovery of dead body at the instance of appellants is farce since the place where the dead body was lying had already been mentioned in the paper that was pasted on the wall.
10. Per contra, learned Public Prosecutor supported the impugned judgment and took us to the material on record to demonstrate that the appellants were rightly convicted and sentenced.
11. Factual situation emerges from the material on record may be summarised thus:--
(i) Bare reading of paper (Ex.P-42), which was pasted on a temple, reveals that it was written by a person who saw the incident from his own eyes and minute details of the incident were incorporated in it.
(ii) It was also stated in the paper that dead body of Shravan was lying in Bamanwala well.
(iii) Alok Srivastava, Investigating Officer, did not investigate as to who was the author of the paper. Even he did not choose to go to the place where the paper was pasted.
(iv) According to Ram Kishan. Sunder and Sita Ram the accused Peeru and Chhote Lal came to the office of Ram Kishan and confessed that they along with Lali killed Shravan.
(v) Although the paper was pasted on December 9, 1998 disclosing the names of the accused, the written report was submitted by Ram Kishan on December 11, 1998 at 12.15 PM.
(vi) The appellants were in their village and they did not try to escape despite the fact that they were named as the offenders in the paper.
(vii) The dead body of Shravan got recovered at the instance of appellants from a well on December 11, 1998.
(viii) The weapons that were recovered at the instance of appellants were not stained with blood.
12. A perusal at the impugned judgment of the learned trial judge goes to show that the following circumstances were taken into consideration in convicting the appellants:--
(a) Appellants made confession before the witnesses that they had killed the deceased;
(b) The dead body was recovered at the instance of the appellants;
(c) The weapons of offence were recovered at the instance of appellants.
13. It is well settled that the evidence of extra judicial confession in the very nature of things is a weak piece of evidence but it is not open to any court to start with this presumption. It would depend on the nature of circumstances, the time when the confession was made and the credibility of witnesses, who speak to such a confession. From the stand point of reason a confession may be subject to grave informative consideration, among others that is extremely improbable that a person should accuse himself of a serious crime. In Ghasi Ram Lakra v. State of Orissa, 1997 Cr.L.J. 939 (Orissa) it was held that where the accused alleged to have confessed before the brother of the deceased, neither exact words nor the words substantially stated by the accused reproduced confession was highly improbable. Their Lordships of the Supreme Court in State of Rajasthan v. Raja Ram (2003) 8 SCC 180, indicated in para 19 as under:--
'Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility.
14. Bearing in mind the aforesaid principles when we proceed to examine the alleged extra judicial confession, we find it wholly unreliable. It is highly unlikely that the appellants themselves would come to the informant and confessed their guilt. This possibility cannot be ruled out that the unknown person who was instrumental in notifying the names of accused could himself make attempt to falsely implicate the accused. This question remained unanswered as to why on December 9, 1998 when the fact of murder of Shravan was disclosed, why the matter was not reported to police forthwith. On examining the evidence of Ram Kishan, Sunder and Sita Ram from the point of view of trustworthiness we find them highly unreliable.
15. The circumstance that the dead body was recovered at the instance of the appellants also does not connect the appellants with the crime, since in the paper (Ex.P-42) itself it was mentioned that the dead body was lying in a well. The recovery of weapons at the instance of the appellants also appears to be concocted.
16. Investigation in regard to paper (Ex.P-42) ought to have been conducted to know as to who wrote it and whether he was the eye witness of occurrence but no such efforts were made. The prosecution has also failed to show as to what could have been the motive of the appellants behind the murder of Shravan. From the statement of Santo (Pw.9) on the other hand, the informant Ram Kishan and his family members got all the benefits from the immovable and movable properties of her deceased father, after her mother was kept in jail.
17. In the ultimate analysis, we are of the view that the circumstantial evidence adduced by the prosecution is not of such a nature as to capable of supporting the exclusive hypothesis that the appellants are guilty of the crime they are charged. We do not find that the chain of circumstantial evidence against the appellants is complete and incapable of any explanation or any other hypothesis than of the guilt of the appellants.
18. For these reasons we allow the appeals and set aside the impugned finding of conviction. We acquit the appellants Peeru Shah, Shafi Shah and Chhote Lal of the charges under Sections 302, 302/34, 201 and 449 IPC and Section 3(2)(v) of Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act. The appellants Peeru Shah, Shafi Shah and Chhote Lal, who are in Jail, shall be set at liberty forthwith, if not required to be detained in any other case.