Mathra (Smt.) and ors. Vs. State of Rajasthan - Court Judgment

Excerpt:
- section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - it is also contended that there is no reliable evidence on record that lumba ram has in fact died. it is well established that the conviction for an offences of murder does not necessarily depend upon the corpus delicti. therefore, what is required in a case of murder that there should be reliable and acceptable evidence that the offence of murder like any other factum of death was committed and it must be proved by direct or circumstantial evidence that the man has died of homicidal death although the dead body may not be traced. (3), that while considering the admissibility of the extra judicial confession, it is not open to the court to start with the presumption that such evidence is a weak type of evidence. it must also be satisfied that there was no pressure or threat and the extra judicial confession was made freely. 1 geprram is the uncle of deceased lumba ram as well as of the appellant champa lal. r esa ykus ls igys esjkhkkbz lksukjke o paikyky dk hkkbz ckcwyky us ekjihv dh fkh a efkjk ds lkfkekjihv ugha dh fkh a nks rhu jkiv ekjs fks a efkjk ds lkfk ekjihv ;k fkiim+ ughaekjs a**(14). this clearly shows that both the accused persons did not voluntarily appear before smt. thus, in our view the prosecution has failed to establish that the appellants voluntarily made extra judicial confession before smt. in view of this the circumstance of recovery of the incriminating articles at the instance of the accused has not been established by the prosecution by a firm and reliable evidence. in view of this we do not consider it safe to rely on the testimony of pw. the prosecution has failed to establish the circumstance of motive as well.mathur, j.1. the appellants champalal and smt. mathra have been convicted for offence under section 302 i.p.c. and sentenced to imprisonment for life and to pay a fine of rs. 1000/-; in default of payment of fine to further undergo 6 months rigorous imprisonment. they have also been convicted for offence under section 201 i.p.c. and sentenced to 1 year rigorous imprisonment and to pay a fine of rs. 500/-.(2). the prosecution case, as it emerges from the record is that the appellants smt. mathra and champalal are the wife and younger brother of the deceased lumba ram. lumba ram about five days prior to deepawali of the year 1996 disappeared. pw. 12 rana ram received two inland letters purported to be from lumba ram, informing about his welfare. while one letter was delivered by post, another by a messenger. there was no address of the addressee. lumba ram was an illiterate person. rana ram and others suspected some foul play in the matter. p.w. 5 laka ram expressed suspicion as to illicit relations between champa lal and mathra. pw. 12 rana ram apprised his brother pw.1 geprram of missing of lumba ram. the search by all the members of the family did not yield anything. thus, the matter was reported to village sarpanch pw.4 smt. radha. on 18.12.96 champa lal and mathra were produced before pw.4 smt. radha. on interrogation by radha devi in presence of pw.3 hema ram both of them made a confession to the effect that they killed lumba ram and buried in the filed. under the instruction of smt. radha devi, a written f.i.r. was lodged by pw.1 geprram at police station, kerla. police registered a case for offence under section 302 & 201 ipc and proceeded with investigation. both the accused persons were arrested. the accused persons gave information pointing out the place where the dead body of lumba ram was buried, which was exhumated in presence of the s.d.m. miss praghya kevalani, the dy. superintendent of police ashok kumar and three doctors. the autopsy was conducted on the spot by a board of three doctors. in pursuance of the informations given by the accused persons incriminating articles were recovered. after usual investigation, police laid charge-sheet against both the appellants for offence under sections 302 & 201 i.p.c.(3). the appellants pleaded not guilty and claimed trial. the prosecution in support of its case examined 15 witnesses. the appellants denied correctness of the evidence appearing against them. the defence examined d.w.1 dr. dinesh kumar sharda. the appellant smt. mathra examined herself as d.w. 2. the trial court found the prosecution case proved. accordingly he convicted and sentenced both the appellants as indicated above.(4). we have heard mr. sandeep mehta learned counsel for smt. mathra and mr. sachin acharya learned counsel for champalal and the learned public prosecutor. we have also carefully perused the record and re-appreciated the evidence. it is contended by the learned counsel for the appellants that the circumstances relied upon by the prosecution have not been firmly established and in any case they are not enough to bring the offence home against the appellants. it is also contended that there is no reliable evidence on record that lumba ram has in fact died. on the other hand the learned public prosecutor has supported the judgment of the trial court.(5). we shall first deal with the last contention raised by the learned counsel with respect to the homicidal death of lumba ram. it is well established that the conviction for an offences of murder does not necessarily depend upon the corpus delicti. corpus delicti in some cases may not be possible to trace it for recovery. in many cases the accused may manage to see that the body of a deceased is destroyed and that would afford a complete immunity to guilt from being punished and would escape even when an offence of murder is proved. therefore, what is required in a case of murder that there should be reliable and acceptable evidence that the offence of murder like any other factum of death was committed and it must be proved by direct or circumstantial evidence that the man has died of homicidal death although the dead body may not be traced. in this regard reference may be made to a decision of the apex court in sevak ram v. state (1). however, in a case where a dead body is recovered the prosecution is required to establish its identity. we shall deal with this aspect while dealing with the incriminating circumstances of recovery of the dead body at the instance of the accused appellants.(6). the trial court has relied upon the following piece of circumstances to connect the appellants with the alleged crime :-(1) extra judicial confession of the guilt by the appellants in presence of pw.1 geprram, pw.4 smt. radha, pw.9 pokar and pw.3 hema ram; (2) the recovery of the dead body of lumba ram in pursuance of the information given by the appellants; (3) recovery of the incriminating articles in pursuance of the information given by the appellants; (4) misled the family of deceased by sending letters purpoting to be in the name of deceased lumba ram; (5) motive;(7). we shall deal with the each circumstance in seriatum :-extra judicial confession of the guilty by the appellants: evidence of oral confession of guilt to one who is not a person in authority is known as extra judicial confession, if voluntary can be relied upon by the court along with other evidence in convicting the accused. thus, extra judicial confession if free from any suspicion as to its voluntary character and has also a ring of truth, it is admissible in evidence against the accused and can be acted upon. reference may be made to the decision of the apex court in thimma v. the state of mysore (2). it is held by the apex court in narayan singh and ors. v. state of m.p. (3), that while considering the admissibility of the extra judicial confession, it is not open to the court to start with the presumption that such evidence is a weak type of evidence. since its admissibility would depend upon the nature of the confession, the time when the confession was made and the credibility of the witnesses who testify to such evidence needs to be closely examined. law does not require that evidence of extra judicial confession should in all cases be corroborated where the extra judicial confession is proved by an independent witness, who is responsible officer and who bears no animus against the accused person. there is no justification for the trial court to disbelieve the evidence of such a witness particularly when the extra judicial confession is corroborated by the recovery. it must also be satisfied that there was no pressure or threat and the extra judicial confession was made freely. suffice it to say that as a matter of caution the court requires some material corroboration to an extra judicial confessional statement, corroboration, which connect the accused person with the alleged crime. (8). in the instant case the prosecution has produced four witnesses to prove the incriminating evidence of extra judicial confession. p.w.1 geprram is the uncle of deceased lumba ram as well as of the appellant champa lal. he deposed that his elder brother rana ram reported to him that his son lumba ram was missing. he was also told that two inland letters addressed to rana ram were received. name of deceased lumba ram was shown as sender's name. the sender's address was not given. the two letters gave rise to some suspicion. there was murmuring in the family about the illicit relations between the appellant champa lal and second appellant mathra the wife of deceased lumba ram. he brought champa lal and mathra to mandawas. on inquiry by pw. 4 smt. radha the sarpanch of gram panchayat, man-dawas in presence of pw. 3 hema ram ward panch, pw. 5 laka ram and pw.9 pokar up sarpanch, both the accused champa lal and mathra made a confessional statement to the effect that they killed lumba ram and buried the dead body under the earth. however, they did not disclose the place of burial. the relevant portion is extracted as follows :-^^rc fkksm+h nsj ckn paikyky o efkjk us lpcksyk vksj gesa crk;k fd ge nksuksa us feydj yweckjke dks ekj fn;k gs a vksjfev~vh esa xkm fn;k gs a dgka ij fd txg xkmk ;g gesa ugha crk;k a** (9). pw.4 smt. radha sarpanch, gram panchayat, mandawas deposed that sona ram, geprram etc. brought the accused champa lal and mathra at the panchayat house. she inquired from them as to why the accused persons have been brought on which sona ram and geprram called her to inquire from accused persons. on inquiry, both the accused persons namely champa lal and mathra made a confessional statement that they have killed lumba ram. the confessional statement is extracted as follows :^^geus yweckjke dks ekj fn;k gs a bl dkj.k eq>syk;s gs a**(10). pw.3 hema ram deposed that sona ram and geprram produced champa lal and mathra at the panchayat house. on inquiry by the sarpanch smt. radha champa lal disclosed that he has killed his brother lumba ram. the confessional statement is extracted as follows :-^^peikyky us crk;k fd hkkbz yweckjke dks ekjfn;k gs a** he further stated that mathra did not make any statement in his presence. this witness was declared hostile on the request of the prosecution.(11). pw.5 laka ram stated that geprram and sona ram produced accused champa lal and mathra at the panchayat house where hema ram, pokar and smt. radha were present. on inquiry, champa lal made a confessional statement to the effect that he along with the wife of lumba ram namely mathra killed lumba ram and buried the dead body under the earth. they did not disclose the place of burial. the confessional statement is extracted as follows :-^^paikyky us dgk fd esaus o yweckjke dh ifruefkjk us yweckjke dks ekjdj tehu esa xkm fn;k gs a**(12). pw.9 pokar stated that sona ram and geprram produced accused champa lal and mathra at the panchayat house. on inquiry mst. mathra made a confessional statement that she has done wrong thing. she stated that lumba ram has been killed. she further stated that she along with champa lal killed lumba ram. on inquiry from champa lal, admitted to have committed the sin. the confessional statement is extracted as follows:-^^efkjk us dgk fd ,smks dke dj fn;s gks ayweckjke dks ekj fn;ks gs a efkjk us crk;k fd esaus paikyky us yweckjke dks ekjkgs a esaus paikyky ls iwnk fd d;k ;s lgh gs rks mlus paikyky us dgk fd gka esaus/kwm+ [kk yh gs a** (13). it emerges from the four witnesses of the extra judicial confession that pw.3 hema ram and pw.5 laka ram have not stated with respect to the alleged extra judicial confession made by the accused mathra. pw.3 hema ram has categorically admitted that mathra did not make confessional statement in his presence. it is contended by the learned counsel that the alleged confession cannot said to be voluntary inasmuch as it has been admitted by pw. 1 geprram that before the accused persons were brought before smt. radha, they were beaten. the relevant portion of the statement is extracted as follows :-^^paikyky dks iapk;r esa ykus ls igys esjkhkkbz lksukjke o paikyky dk hkkbz ckcwyky us ekjihv dh fkh a efkjk ds lkfkekjihv ugha dh fkh a nks rhu jkiv ekjs fks a efkjk ds lkfk ekjihv ;k fkiim+ ughaekjs a**(14). this clearly shows that both the accused persons did not voluntarily appear before smt. radha. admittedly champa lal was given a beating before he was produced before smt. radha. thus, in our view the prosecution has failed to establish that the appellants voluntarily made extra judicial confession before smt. radha. it also appears that all the five witnesses have not been able to give the actual words in which confessional statement was made by the accused champa lal and mathra. pw.4 smt. radha had admitted in the cross examination that she cannot state the exact words spoken by the accused persons :-^^oklro esa eqyfteku us d;k 'kcn dke esa fy;s;g easa ugha crk ldrh a**(15). after the alleged confessional statement was made before smt. radha the sarpanch a first information report was lodged by pw.1 geprram. though none of the witnesses have stated if the accused persons were again produced before the panchayat in which number of villagers were present but it has been admitted in the cross examination by pw.1 geprram that in the morning at about 7:00 or 8:00 the accused persons were brought to the panchayat. at about 11:00 or 12:00 the police had also arrived at the panchayat house, pw.4 smt. radha has also stated that the accused champa lal and mathra were brought about 12:00. she has also admitted that the police had arrived at 11:00 or 12:00 at the panchayat house. it has also been admitted that when the accused persons made a confessional statement in the panchayat the police was also present. thus, the statement made in presence of the police is hit by section 26 of the evidence act and is not admissible in evidence.(16). reverting to the first extra judicial confession made before smt. radha is concerned, it does not inspire confidence. the witnesses have not given the exact words in which the confessional statement was made by both the accused persons. there is discrepancies in the statements of the prosecution witnesses as indicated above. the statement also cannot be said to be voluntary. they have not appeared voluntarily before smt. radha but they were brought after giving beating. thus, in our view the evidence relating to extra judicial confession being not voluntary and full of discrepancies we do not consider it save to rely upon.recovery of the dead body of lumba ram :(17). as regards the second circumstance, pw.14 surendra singh, s.h.o., police station, kerala has stated that he arrested the accused champa lal. while in custody he made a discloser statement ex.p.36 to the effect that dead body of deceased lumba ram was buried near butariya nada in the field of agor. he further stated that he gave an information to the s.d.m. about, the discloser statement and requested him to reach on spot. a request was also made for constitution of medical board. he along with the s.d.m. and doctors reached on the place as disclosed and led by accused champa lal. the dead body was exhumed, memo ex.p.7 in presence of s.d.m. pw.2 praghya kevalani and pw.9 pokar. the autopsy was conducted by the medical board headed by pw.10 dr. manohar singh rajpurohit. the doctors prepared exhumation report ex.p.28 and the post-mortem report ex.p.29. the dead body was highly decomposed. bones were taken out with cloths. there were two baniyans over the chest bones. in one of the pocket there was a langer bidi bundle and a match box. around the pelvic bones there was an underwear and a dhoti. on the basis of the cloths the dead body was identified by pw.5 laka ram and pw.1 geprram, pw.10 dr. manohar singh has stated that he was a member of the medical board along with dr. k. ghyan chandani and dr. n.k. bhootra who conducted the post-mortern of the dead body of lumba ram. he also stated that autopsy was conducted in presence of pw.2 praghya kevalani s.d.m., pali and shri ashok kumar gupta dy. superintendent of police pali. he also stated that all measure bones were found separate but in intact condition. the board also found a dried piece of skull with hairs. there was a depressed fracture found on the right temporal bone. pw.5 laka ram the brother of deceased lumba ram has stated that he could identify the dead body of lumba ram. the basis of identification was the cloths on the body. pw.9 pokar has also made a statement that he could identify the dead body of lumba ram. thus, from the evidence on record, it is abundantly proved that the body exhumed was that of deceased lumba ram. the prosecution has also succeeded in proving that the dead body was recovered in pursuance of the information given by champa lal. therefore, the second piece of evidence stands established against appellant champa lal.recovery of the incriminating articles :(18). pw.14 surendra singh s.h.o., police station, kerala has stated that in pursuance of the information given by the accused vide ex.p. 12 a blood stained bushirt article 3 belonging to accused was recovered from the dhani of his father in presence of motbirs pw.3 hema ram and pw.9 pokar. the article was packed in a packet marked c. the packet was deposited by pw.14 at the police station, kerala. the prosecution has produced pw.8 narain lal head constable, police station, kerala, pw.13 gokala ram a constable in the office of the superintendent of police, pali and pw.l5 ram narain a constable at the police station, kerala in order to establish that the articles recovered remained intact till they were delivered in the forensic science laboratory. it is not necessary to discuss the evidence in this regard as the fact that' the articles remained intact till they reached forensic science laboratory has not been challenged by the defence. as per the f.s.l. report ex.p3 on the shirt of the accused recovered vide ex.p. 12 human blood of group a, b was found.(19). in pursuance of the information given by accused mathra vide ex.p.39 blood stained odhna, ghaghra and jhumper belonging to the accused were recovered vide ex.p.15 from her residential house of her in-laws. the articles were placed in packet e. the articles were deposited at the police station and then sent to the forensic science laboratory for chemical examination. the articles 5 & 6 where found to be stained with human blood of group a, b.(20). it may be recalled that the dead body of the deceased lumba ram was exhumed vide exhumation report ex.p.28. from the dead body blood stained dhoti, baniyan and t-shirt were taken. they were seized and placed in packet s. the packet was sent to the forensic science laboratory for chemical examination. vide f.s.l. report ex.p.43 all the three articles were found to be stained with human blood of group a, b.(21). it is submitted by the learned counsel for the appellants that the recovery of the cloths of the deceased on face appears to be planted. it is submitted that it is quite unnatural that the accused persons could have kept the blood stained cloths with them in the house for more than a month. in our view there is substance in the contention of the learned counsel for the appellants. the f.i.r. was lodged on 18.12.96 wherein it is stated by pw.1 geprram that about 10 days before, his brother pw.12 rana ram reported to him about the missing of lumba ram. he stated that his son was missing 5 days prior to the deepawali, it is further stated by pw.12 rana ram that he had received a letter ex.p. 19 about 15-20 days after his son lumba ram left the house. the letter ex.p.19 is dated 19.11,96. thus, it appears that lumba ram must have been murdered between 5th november, 1996 to 19.11.96. the accused persons were arrested on 19.12.96. thus, there appears to be gap of around 1 or 1-1/2 month between the actual date of murder of lumba ram and the recovery of the cloths from the accused persons. it is significant to note that the recovery has been made from the dhani of the father of champa lal or the maternal home of appellant mathra. it does not stand to reason at the first instance the accused persons will go to their house with the blood stained cloths and secondly they will preserve the incriminating articles in the house in which the prosecution witnesses are also residing for more than a month. thus, the recovery does not inspire confidence. in view of this the circumstance of recovery of the incriminating articles at the instance of the accused has not been established by the prosecution by a firm and reliable evidence.recovery of weapon :(22). in pursuance of the information given by accused champa lal vide ex.p.38 a blood stained kulhari was recovered vide ex.p.11. the kulhari was sent to the forensic science laboratory for chemical examination. the f.s.l. report ex.p.43 does not show that there was human blood on the kulhari recovered at the instance of the accused. thus, this piece of evidence has not been established by the prosecution. similarly in pursuance of the information given by accused mathra vide ex.p.39 a kunt was recovered vide ex.p.15. it was also sent to the forensic science laboratory for chemical examination. as per the f.s.l. report 'there was not sufficient blood' for examination. thus, this circumstance has also not been established against the appellants.misled the family of deceased by sending letters :(23). the prosecution has produced two letters ex.p.19 & p.20. the prosecution case is that these two letters purporting to be from lumba ram were sent by the appellant champa lal. it was written that he was comfortably doing his job and will return soon. though the letter shows that they are sent from jodhpur but in fact the postal receipts shows that they were despatched from a nearby village at a distance of 7 kms. pw. 6 pukhraj has stated that the appellant had approached to him and asked him to write the letter ex.p.20. he admitted that the letter ex.p.20 was in his hand writing. he asked him, as to why he wants letters to be drafted for village mandawas, while he was in village vayad at a distance of only 7 kms. however, he insisted for writing the letter. this witness has admitted in the cross examination that the appellant was a complete stranger to him. after writing the letter he was seeing him first time in the court. the identification of the appellant by this witness in court is not preceded by an identification parade. in view of this we do not consider it safe to rely on the testimony of pw.6 pukhraj. if the evidence of pw.6 pukhraj eschewed, the piece of circumstance advanced by the prosecution falls to the ground.motive :(24). the prosecution has alleged that the motive behind the murder was the illicit relations-between the appellant champa lal and second appellant mathra wife of deceased lumba ram. there is no evidence worth the name except the suspicion after the death had taken place about the illegitimate relations between them: the prosecution has failed to establish the circumstance of motive as well. we make it clear that in a murder case it is not necessary to establish motive. in the instant case our finding is to the extent that the prosecution has not succeeded in establishing this piece of circumstance.(25). thus, the only circumstance of recovery of the dead body at the instance of accused champa lal is not sufficient to conclude that it was the champa lal who committed the murder of lumba ram. as far as appellant mathra is concerned, none of the circumstance has been established against her. thus, in the back ground material available on record and having considered the same, we find that the prosecution has not been able to establish the chain of circumstances leading to the conclusion beyond reasonable doubt that it was the appellants champa lal and mathra who committed the murder of lumba ram.(26). consequently, both the appeals are allowed. the conviction and sentence of appellants smt. mathra and champa lal for offence under sections 302 and 201 i.p.c. are set aside. they are acquitted of the said charges. the appellant champa lal is in jail. he shall be set at liberty forthwith, if not required in any other case. smt. mathra is on bail, her bail bonds shall stand cancelled.