Prakash Chand SaIn Vs. State of Rajasthan - Court Judgment

SooperKanoon Citationsooperkanoon.com/766965
SubjectCriminal
CourtRajasthan High Court
Decided OnAug-04-2005
Case NumberD.B. Criminal Appeal No. 355 of 2001
Judge V.K. Bali and; Vineet Kothari, JJ.
Reported inRLW2006(1)Raj149; 2005(4)WLC550
ActsIndian Penal Code (IPC) - Sections 302; Code of Criminal Procedure (CrPC) - Sections 161, 164 and 173(2)
AppellantPrakash Chand Sain
RespondentState of Rajasthan
Appellant Advocate Suresh Sahni and; Ram Mohan Sharma, Advs.
Respondent Advocate M.L. Goyal, Adv. and; Nirmala Sharma, Public Prosecutor
DispositionAppeal allowed
Cases Referred and Kuldip Singh and Anr. v. State of Punjab
Excerpt:
- - as also ramdhan, sho (pw-18) who was the first investigating officer as well as yudhishter sharma, magistrate who recorded statements under section 164 cr. it is too well settled that statements of the witnesses recorded under section 164 cr. it is too well settled that extra judicial confession by its very nature is a weak type of evidence and requires appreciation by the courts with great deal of caution. the prosecution story, in our considered view, is based upon suspicion and suspicion howsoever strong, cannot take place of proof.v.k. bali, j.1. the prosecution on the basis of extra judicial confession said to have been made by the appellant before sanwar mal (pw-7), a peon of the school and recovery of string on the basis of disclosure statement said to have been made by the appellant, was able to secure conviction of the appellant under section 302 ipc for murder of devi lal, a child of tender years residing in hostel of the school where he was studying.2. learned additional sessions judge no. 1, sikar held the appellant guilty for offence under section 302 ipc and sentenced him to undergo imprisonment for life as also to pay a fine of rs. 10,000/- and in default of payment of fine, to further undergo r.i. for a period of three months, vide orders dated 1.5.2001. it is against this order that the present appeal has been filed.3. the questions that need determination are as to whether, in the facts and circumstances of the case, reliance could be placed on the circumstantial evidence relied by the prosecution in the shape of extra judicial confession and the recovery of rope on the disclosure statement made by the accused, which was stated to have been used for strangulating the child.4. the bare minimum facts that need a necessary mention for commenting and deciding as to whether the appellant could be convicted on the basis of circumstantial evidence as mentioned above, reveal that occurrence leading to the death of devi lal, a boy of 9 years, had taken place on the intervening night of 25- 26th july, 2000 at sumitra memorial secondary school, losal, distt. sikar stated, to be at a distance of half km. from the police station.5. the matter with regard to the murder of devi lal was reported by pw-2 ranveer singh, head of the institution on 26.7.2000 at 7.10 a.m. special report with regard to the incident is stated to have reached the concerned magistrate on the same day at 11.45 a.m. information to the police with regard to the murder of devi lal, as mentioned above, was given by ranveer singh on the basis of which formal fir was registered. written information given by ranveer singh (pw-2) to the sho ps losal reads as follows:dear sirin the above context it is submitted that in sumitra memorial secondary school, losal today - 26.7.2000 in the hostel at 10.15 p.m. the students were asked to go for sleep. in the morning at 5.15, all the students after getting up came down but one student did not wake up. when the hostel incharge looked at the student and shook him, he noticed that a rope was tied around the neck of devilal son of balaram, (class iv, aged 9 years), resident of rajas, tehsil laxmangarh and the student was found dead hostel warden rameshwar lal son of hanmana ram, resident of bigania ki dhani, post chidasara, distt. sikar informed the institutional head, who reported the matter before the sho for investigation.6. in its endeavour to bring home the offence against the appellant, prosecution examined ranjeet singh, maternal uncle of other student studying in the same school, as pw-1, attesting witness of ex.p.1 panchayatnama and ex.p.2 site plan. pw-2 ranveer singh, the first informant, deposed with regard to the fir lodged by him. he is also the attesting witness of ex.p. 1 panchayatnama and ex.p5 memo of handing over the dead body, ex.p.6 seizure memo, ex.p.7 arrest memo dated 1.8.2000 and ex.p.8 memo of consent. rameshwar lal, warden of the hostel, examined as pw-3, is the attesting witness of ex.p.1 and ex.p.9. ex.p.9 is the statement under section 164 cr.p.c. first statement under section 161 cr.p.c. was recorded by the s.h.o. ramdhan (pw-18) on 26.7.2000 and supplementary (second) statement was recorded by pw-16 bhanwar lal sho on 1.8.2000 which contained extra judicial confession.7. vinod singh rathore, p.t.i, of the school, attesting witness of seizure memo ex.p. 10 and ex.p. 11 was examined as pw-4.8. baluram, father of the deceased, was examined as pw-6 whereas sanwar mal before whom the appellant as stated to have made extra judicial confession was examined as pw-7. pradeep kumar sharma examined as pw-8 deposed with regard to the scuffle between the deceased and the other student shambhu dayal.9. there is no need to make a mention of other witnesses but bhanwar lal, sho who was examined as pw-16 and who had filed report under section 173 (2) cr.p.c. as also ramdhan, sho (pw-18) who was the first investigating officer as well as yudhishter sharma, magistrate who recorded statements under section 164 cr.p.c. and who was examined as pw-19 as also dr. gouri shanker sharma (pw-12) who had conducted post mortem examination on the dead body of devi lal and gave cause of death as asphyxia.10. pw-12 dr. gouri shanker sharma, a junior specialist in surgery, c.h.c. losal stated that a board consisting of three doctors had conducted post mortem examination on the dead body of devi lal, aged 9 years at 11.45 a.m. on 26.7.2000. the board of doctors found mark of legature on the neck of the deceased which was circular legature mark from angle of right mendible to angle of left mandible. doctors found another ligature mark 1' below from angle of left mandible upto pinna part of right ear. in the opinion of the doctors, death was most probably caused on account of asphyxia. the injuries sustained by the deceased were ante mortem in nature and were caused within a duration of 6-24 hours.11. rameshwar lal, examined as pw-3, stated that on 2.3.2000 he was appointed on the post of warden in sumitra memorial school. the occurrence had taken place on 26.7.2000. in the night at about quarter past 11, he had checked room no. 1 where 58 children were sleeping. at the time when he made checking, monitor prem prakash was with him. on checking, he found that students of room nos. 3, 4, 5, 6 and 7 were also sleeping. at that time, in warden room, three teachers were sleeping. they were vinod singh, prakash sain and the third was of caste 'balai' whose name he would not remember. two persons were sleeping in the court yard. he got up in the morning at 4.30 and gave ring to wake up the students at 5.10 a.m. all the students came on the ground floor but devi lal did not come. prem prakash brought devi lal on the ground in his lap. monitor told him that there was a rope around his neck. that rope was given to him by the monitor. whole staff then came there and devi lal was found dead. he also stated that the magistrate had recorded statement ex.p.9. it may be mentioned here that in his examination-in-chief he did not state that the appellant had confessed his guilt before him.12. sanwar mal examined as pw-7 stated that he was working as a peon in sumitra memorial school, losal. the school was owned by ranveer singh. on 25.7.2000, he had slept at 10.30 p.m. a boy named shambhu dayal was sleeping nearby. he (sanwar mal) was woken up by the warden rameshwar in the morning on which he (sanwar mal) came out and found the dead body of devi lal on the wooden plank. he would not remember as to in which class devi lal was studying. he found a rope around the neck of the deceased. he was then asked to call baluji, father of the deceased. police had made enquiries from him the next day. he and the warden were in the room of warden namely rameshwarji. it was at about 12.30 in the afternoon that they were talking as to how this occurrence had taken place, that the appellant prakash chand sain who was pti in the school came and stated that this occurrence had take place from his hands. they then informed ranveer singh, owner of the school who along with them went to the police station. in his cross-examination, he stated that his statement was recorded by the police on 3 or 4 occasions. whereas first statement was recorded on the day of occurrence, again stated, that on the next day of occurrence whereas his further statements were recorded continuously for 2-3 days. he admitted that his statement was recorded on 3-4 occasions for the reason that he had consistently told the police that he was sleeping on the ground floor and he would not know anything about the occurrence. the police people would take him to the police station every day and ask him questions. ranveer singh and rameshwar had taken him to the police station. he denied the suggestion that the appellant had made no statement before him confessing his guilt.13. pradeep kumar sharma, student of the same school, who was examined as pw-8, stated that devi lal was his close friend. on 25.7.2000 at 10 p.m. they had come on the ground floor. he and devi lal had gone in room no. 7. devi lal had given a kick blow to shambhu dayal upon which shambhu dayal also gave a slap to devi lal. he told devi lal that they should go up stairs in their room but devi lal did not accompany him. when he came on the first floor, he told prem prakash, monitor that devi lal was fighting and was not coming up stairs, upon which prem prakash went to the ground floor and brought devi lal and made him sleep. it was 10.45 p.m. there was a room of hari ram on the northern side of the room of devi lal. one rughnath badhala threw his bed, upon which he (pradeep kumar sharma) tore his 'baniyan'. he and rughnath were fighting at which time devilal went towards the bathroom. some time after devi lal had gone to the bath room, prakashji, pti sent him into the room. immediately on his arrival, he (p.t.i.) gave him and rughnath a slap. p.t.i, then told them to switch off the light. devilal had not come back from the bathroom and thereafter, pti went towards the side of bathroom. thereafter, they slept and got up in the morning at 5. all the boys got up but devi lal did not. there was a rope around the neck of devi lal. at that time, pti was coming up-stairs. other teachers also came after devi lal had died.14. vinod singh rathore, examined as pw-4, stated that on 28.7.2000 he was working on the post of pti in sumitra secondary school, losal. he knew devi lal son of baluram who was student of class iv. he, prakash chand and virendra all were sleeping in the room of warden. he (vinod singh rathore) went to the bathroom. thereafter, prakash chand also went to the bathroom for urinating. prakash did not tell anything at that time. then on second occasion, when he came for urinating, he told him (the witness) that one boy named pradeep was doing something nonsense and that he had given him a slap. in the morning, they found a rope around neck of devi lal. when he went down stairs, he found that the boy had already died. one rope was recovered from the bag of prakash which was lying in the room of warden regarding which writing was made by the police. in his cross examination, he stated that the police had come to the school at 7 in the morning on 26th july, 2000 and that statements were recorded on 26th itself. police was making enquiries from him for 6-7 days. he admitted that during these 6-7 days, he consistently told the police that he would not know anything about the occurrence. he stated that virendra, prakash chand and jagdish as also bhanwar lal were sleeping in the warden's room before and after the occurrence. prakash chand had a bag in which he used to keep his wearing clothes. he admitted that a rope had been recovered by the police on the date of occurrence itself. when he first saw devilal, there was no rope around his neck. he stated that prakash chand had been appointed in the school only 5-7 days earlier to the date of occurrence. he admitted that he had not heard anything adverse with regard to the character of the appellant and that he was a competent person. he stated that he could not believe that the appellant might have killed devi lal. he further stated that the appellant was not arrested on the same day but was taken by the police on 30th or 31st of the month.15. pw-13 heera lal stated that on 26.7.2000 he had seen the dead body of devi lal in the hospital.. seven days thereafter the sho had recovered a rope from the bag of the appellant in room no. 5 of the hostel. room no. 5 belongs to the staff of the school. prakash chand had shown the bag to the sho which was opened by him and a rope measuring 9' with a string was found. on 26.7.2000 the sho compared the rope found from the bag of the appellant with that which was found around the neck of devi lal. the two pieces of rope were found to be similar. in his cross- examination, he stated that on the date when the rope was recovered, the sho had come at 10 a.m. in the school.16. there will be no need to give further details of the evidence, as it is only on the basis of two circumstances as fully mentioned above, that the prosecution sought conviction of the appellant. it may however be mentioned that ex.p.9 and ex.p.40 are statements of the witnesses recorded by the magistrate under section 164 cr.p.c.17. mr. suresh sahni, learned counsel representing the appellant vehemently contends that the learned trial judge wrongly relied upon the statements made by the witnesses under section 164 cr.p.c. with a view to attribute motive to the appellant to commit the crime. motive to commit crime as mentioned in the statements under section 164 cr.p.c. was intention of the appellant to commit sodomy, resistence of which by the deceased resulted in the commission of crime. this part of the statement made under section 164 cr.p.c. was not supported by any of the witnesses whose statements were recorded under section 164 cr.p.c. learned counsel thus contends that reliance placed by the learned trial judge on ex.p.9 and ex.p.40 statements recorded under section 164 cr.p.c. for conviction of the appellant-was wholly illegal. learned counsel further contends that extra judicial confession said to have been made by the appellant before pw-7 sanwarmal besides being not corroborated by anyone else in whose presence the said statement was made, is highly doubtful and that recovery of rope stated to have been made on the disclosure statement made by the appellant does not inspire any confidence.18. learned counsel appearing for the state, however joins issues with the learned counsel for the appellant, on all the points mentioned above.19. we have heard learned counsel for the parties and with their assistance have examined records of the case.20. rameshwar lal (pw-3), as mentioned above, did not state that the appellant had confessed his guilt before him. however, in his statement that was recorded under section 164 cr.p.c. by the magistrate he had stated that the appellant had told him that this mistake was made by him. he had further stated in the said statement that the cause resulting in the death of devi lal was resistence shown by him on the attempt of the appellant to commit sodpmy. naturally, rameshwar lal (pw-3) did not state even a word with regard to the motive that actuated the appellant to commit crime. sanwar mal (pw-7) had deposed with regard to the appellant making confession before him but he did not state a word with regard to the motive that is said to have actuated the appellant to commit the crime which he did state before the magistrate when statement under section 164 cr.p.c. was recorded. both the witnesses named above were not declared hostile by the public prosecutor nor were cross-examined.21. in the circumstances mentioned above, contention of the learned counsel for the appellant appears to be right that no reliance at all could be placed upon statements made by pw-3 rameshwar lal and pw-7 sanwar mal so as to co-relate the motive leading to the commission of crime, as having been proved. it is too well settled that statements of the witnesses recorded under section 164 cr.p.c. are not substantive evidence and the same can be used only to corroborate or contradict the witnesses. the said statements cannot be made use of except to corroborate or contradict the witnesses. hon'ble supreme court in state of delhi v. shri ram lohia : air1960sc490 held that 'an admission by a witness that a statement of his was recorded under section 164 of the code and that what he had stated there was true would not make the entire statement admissible; much less could any part of it be used as substantive evidence in the case.' it was further held that 'a judge commits an error of law in using the statement of a witness under section164 as a substantive evidence in coming to the conclusion that he had been won over.' in our considered view, learned trial judge committed a patent error of law in relying upon the statements made by pw-3 rameshwar lal and pw-7 sanwar mai before the magistrate under section 164 cr.p.c.22. in so far as extra judicial confession is concerned, the same is stated to have been made before sanwar mal (pw-7), a peon in the school. the school was owned by ranveer singh. according to the statement made by him, it was at about 12.30 in the afternoon when he and rameshwar warden were talking as to how the occurrence had taken place that the appellant came and stated that this occurrence had taken place from his hands. he and the warden then informed ranveer singh, owner of the school, who along with them went to the police station. in his cross-examination, he stated that his statement was recorded by the police on the next day of the occurrence. his statement was recorded on 3-4 occasions for the reason that he had consistently told the police that he was sleeping on the ground floor and would not know anything about the occurrence. it is significant to mention that rameshwar warden (pw-3) has not supported sanwar mal (pw-7). as mentioned above, he did not make a mention even in examination-in-chief that the appellant had come in the room where he and sanwar mal were present and confessed his guilt. in the facts and circumstances of the case, it is difficult to place reliance upon the statement made by pw-7 sanwar mal who himself stated in the cross-examination that his statement was recorded on 3-4 occasions for the reason that he had consistently told the police that he was sleeping on the ground floor and would not know anything about the occurrence. as mentioned above, rameshwar pw-3, warden of the hostel, has not corroborated the statement made by pw-7 sanwar mal. it also looks improbable to this court that author of the crime would confess his guilt before a class- iv employee of the school namely sanwar mal, who was holding the post of peon and not before owner of the school or anyone else in authority who might be in a position to help him. ordinarily, confession is made by author of the crime to a person who may be in a position to help him. a peon of the school, in our considered view, would not have been in any position to help the appellant at all. confession said to have been made by the appellant before the peon of the school does not inspire any confidence. it is too well settled that extra judicial confession by its very nature is a weak type of evidence and requires appreciation by the courts with great deal of caution. reference in this connection may be made to the judgments of the supreme court in balvinder singh v. state of punjab (1995) supp. 4 scc 259, kavita v. state of tamil nadu : 1998crilj3624 mulak raj and ors. v. state of haryana : 1996crilj1358 , makhan singh v. state of punjab (1988) supp. scc 526 and kuldip singh and anr. v. state of punjab : 2002crilj3944 .23. evidence led by the prosecution with regard to recovery of part of the rope from the bag containing wearing apparels of the appellant also does not inspire any confidence. the attesting witness of recovery of rope, heera lal (pw-13) stated that for effecting recovery of the piece of string sho bhanwar lal had visited the place at 10 a.m. whereas pw-10 jagdish prasad godara, who is a witness to panchnama of the dead body of devi lal stated that recovery of rope was effected at 6.05 p.m. vinod singh rathore (pw-4) one of the witnesses, in whose presence part of the rope is said to have been recovered from the bag of the appellant, stated in his cross-examination that the police was making enquiries from him for 6-7 days and that during these 6-7 days, he had consistently told the police that he would not know anything about the occurrence. he further stated that the rope had been recovered by the police on the date of occurrence itself. if part of the rope was recovered on the date of occurrence itself and that too in his presence and when he knew it that devilal had died because of strangulation by rope only, it is not possible to believe that for 5-7 days he had been consistently telling the police that he would not know anything about the occurrence. pw-13 heeralal, the other witness of recovery of rope, stated that on 26.7.2000 he had seen the dead body of devilal in the hospital and seven days thereafter the sho had recovered a rope from the bag of the appellant. he, however, further stated that the sho had compared the rope found from the bag of the appellant with that which was found around the neck of devi lal on 26.7.2000. he has made contradictory statements. whereas he first states that the rope was recovered from the bag of the appellant seven days thereafter, he has also stated that the rope recovered from the appellant was compared from the one found around the neck of devilal on 26.7.2000 itself. prosecution on the basis of discrepant evidence of pw-4 vinod singh rathore and pw-13 heera lal on material particulars with regard to recovery of rope, in our considered view, has not been able to prove this circumstance against the appellant. that apart, it appears to be unnatural conduct of a human being to leave one part of the rope around the, neck of the deceased and to preserve other which as per prosecution story must have broken while stragulating the deceased. the natural conduct of a human being would be to either leave the entire rope at the scene of occurrence or remove all parts, in the present case, two parts and destroy the same. it further appears to be unnatural that a criminal would keep part of the rope with which he had committed a crime, in his bag. what appears to the court is that it is only on the basis of suspicion that the police made a case against the appellant and with a view to secure his conviction created evidence. the prosecution story, in our considered view, is based upon suspicion and suspicion howsoever strong, cannot take place of proof.24. in view of the discussion made above, we are of the view that the prosecution has not been able to prove its case against the appellant beyond the shadow of reasonable doubt and therefore, the appellant deserves to be acquitted of the charges framed against him.25. we thus allow the appeal and set aside order of conviction and sentence dated 1.5.2001 passed by the additional sessions judge no. 1, sikar. the appellant is acquitted of the charges framed against him. he shall be set at liberty forthwith, if not required in any other case.
Judgment:

V.K. Bali, J.

1. The prosecution on the basis of extra judicial confession said to have been made by the appellant before Sanwar Mal (PW-7), a Peon of the school and recovery of string on the basis of disclosure statement said to have been made by the appellant, was able to secure conviction of the appellant Under Section 302 IPC for murder of Devi Lal, a child of tender years residing in hostel of the school where he was studying.

2. Learned Additional Sessions Judge No. 1, Sikar held the appellant guilty for offence Under Section 302 IPC and sentenced him to undergo imprisonment for life as also to pay a fine of Rs. 10,000/- and in default of payment of fine, to further undergo R.I. for a period of three months, vide orders dated 1.5.2001. It is against this order that the present appeal has been filed.

3. The questions that need determination are as to whether, in the facts and circumstances of the case, reliance could be placed on the circumstantial evidence relied by the prosecution in the shape of extra judicial confession and the recovery of rope on the disclosure statement made by the accused, which was stated to have been used for strangulating the child.

4. The bare minimum facts that need a necessary mention for commenting and deciding as to whether the appellant could be convicted on the basis of circumstantial evidence as mentioned above, reveal that occurrence leading to the death of Devi Lal, a boy of 9 years, had taken place on the intervening night of 25- 26th July, 2000 at Sumitra Memorial Secondary School, Losal, Distt. Sikar stated, to be at a distance of half Km. from the police station.

5. The matter with regard to the murder of Devi Lal was reported by PW-2 Ranveer Singh, Head of the Institution on 26.7.2000 at 7.10 a.m. Special report with regard to the incident is stated to have reached the concerned Magistrate on the same day at 11.45 a.m. Information to the police with regard to the murder of Devi Lal, as mentioned above, was given by Ranveer Singh on the basis of which formal FIR was registered. Written information given by Ranveer Singh (PW-2) to the SHO PS Losal reads as follows:

Dear Sir

In the above context it is submitted that in Sumitra Memorial Secondary School, Losal today - 26.7.2000 in the hostel at 10.15 p.m. the students were asked to go for sleep. In the morning at 5.15, all the students after getting up came down but one student did not wake up. When the Hostel Incharge looked at the student and shook him, he noticed that a rope was tied around the neck of Devilal son of Balaram, (Class IV, aged 9 years), resident of Rajas, Tehsil Laxmangarh and the student was found dead Hostel Warden Rameshwar Lal son of Hanmana Ram, Resident of Bigania Ki Dhani, Post Chidasara, Distt. Sikar informed the institutional head, who reported the matter before the SHO for investigation.

6. In its endeavour to bring home the offence against the appellant, prosecution examined Ranjeet Singh, maternal uncle of other student studying in the same school, as PW-1, attesting witness of Ex.P.1 Panchayatnama and Ex.P.2 site plan. PW-2 Ranveer Singh, the first informant, deposed with regard to the FIR lodged by him. He is also the attesting witness of Ex.P. 1 Panchayatnama and Ex.P5 memo of handing over the dead body, Ex.P.6 seizure memo, Ex.P.7 arrest memo dated 1.8.2000 and Ex.P.8 memo of consent. Rameshwar Lal, Warden of the Hostel, examined as PW-3, is the attesting witness of Ex.P.1 and Ex.P.9. Ex.P.9 is the statement Under Section 164 Cr.P.C. First statement Under Section 161 Cr.P.C. was recorded by the S.H.O. Ramdhan (PW-18) on 26.7.2000 and supplementary (second) statement was recorded by PW-16 Bhanwar Lal SHO on 1.8.2000 which contained extra judicial confession.

7. Vinod Singh Rathore, P.T.I, of the school, attesting witness of seizure memo Ex.P. 10 and Ex.P. 11 was examined as PW-4.

8. Baluram, father of the deceased, was examined as PW-6 whereas Sanwar Mal before whom the appellant as stated to have made extra judicial confession was examined as PW-7. Pradeep Kumar Sharma examined as PW-8 deposed with regard to the scuffle between the deceased and the other student Shambhu Dayal.

9. There is no need to make a mention of other witnesses but Bhanwar Lal, SHO who was examined as PW-16 and who had filed report Under Section 173 (2) Cr.P.C. as also Ramdhan, SHO (PW-18) who was the first investigating officer as well as Yudhishter Sharma, Magistrate who recorded statements Under Section 164 Cr.P.C. and who was examined as PW-19 as also Dr. Gouri Shanker Sharma (PW-12) who had conducted post mortem examination on the dead body of Devi Lal and gave cause of death as asphyxia.

10. PW-12 Dr. Gouri Shanker Sharma, a Junior Specialist in Surgery, C.H.C. Losal stated that a Board consisting of three doctors had conducted post mortem examination on the dead body of Devi Lal, aged 9 years at 11.45 a.m. on 26.7.2000. The Board of doctors found mark of legature on the neck of the deceased which was circular legature mark from angle of right mendible to angle of left mandible. Doctors found another ligature mark 1' below from angle of left mandible upto pinna part of right ear. In the opinion of the doctors, death was most probably caused on account of asphyxia. The injuries sustained by the deceased were ante mortem in nature and were caused within a duration of 6-24 hours.

11. Rameshwar Lal, examined as PW-3, stated that on 2.3.2000 he was appointed on the post of Warden in Sumitra Memorial School. The occurrence had taken place on 26.7.2000. In the night at about quarter past 11, he had checked room No. 1 where 58 children were sleeping. At the time when he made checking, Monitor Prem Prakash was with him. On checking, he found that students of Room Nos. 3, 4, 5, 6 and 7 were also sleeping. At that time, in Warden room, three teachers were sleeping. They were Vinod Singh, Prakash Sain and the third was of caste 'Balai' whose name he would not remember. Two persons were sleeping in the court yard. He got up in the morning at 4.30 and gave ring to wake up the students at 5.10 a.m. All the students came on the ground floor but Devi Lal did not come. Prem Prakash brought Devi Lal on the ground in his lap. Monitor told him that there was a rope around his neck. That rope was given to him by the Monitor. Whole staff then came there and Devi Lal was found dead. He also stated that the Magistrate had recorded statement Ex.P.9. It may be mentioned here that in his examination-in-chief he did not state that the appellant had confessed his guilt before him.

12. Sanwar Mal examined as PW-7 stated that he was working as a Peon in Sumitra Memorial School, Losal. The school was owned by Ranveer Singh. On 25.7.2000, he had slept at 10.30 p.m. A boy named Shambhu Dayal was sleeping nearby. He (Sanwar Mal) was woken up by the Warden Rameshwar in the morning on which he (Sanwar Mal) came out and found the dead body of Devi Lal on the wooden plank. He would not remember as to in which class Devi Lal was studying. He found a rope around the neck of the deceased. He was then asked to call Baluji, father of the deceased. Police had made enquiries from him the next day. He and the Warden were in the room of Warden namely Rameshwarji. It was at about 12.30 in the afternoon that they were talking as to how this occurrence had taken place, that the appellant Prakash Chand Sain who was PTI in the school came and stated that this occurrence had take place from his hands. They then informed Ranveer Singh, owner of the school who along with them went to the police station. In his cross-examination, he stated that his statement was recorded by the police on 3 or 4 occasions. Whereas first statement was recorded on the day of occurrence, again stated, that on the next day of occurrence whereas his further statements were recorded continuously for 2-3 days. He admitted that his statement was recorded on 3-4 occasions for the reason that he had consistently told the police that he was sleeping on the ground floor and he would not know anything about the occurrence. The police people would take him to the police station every day and ask him questions. Ranveer Singh and Rameshwar had taken him to the police station. He denied the suggestion that the appellant had made no statement before him confessing his guilt.

13. Pradeep Kumar Sharma, student of the same school, who was examined as PW-8, stated that Devi Lal was his close friend. On 25.7.2000 at 10 p.m. they had come on the ground floor. He and Devi Lal had gone in room No. 7. Devi Lal had given a kick blow to Shambhu Dayal upon which Shambhu Dayal also gave a slap to Devi Lal. He told Devi Lal that they should go up stairs in their room but Devi Lal did not accompany him. When he came on the first floor, he told Prem Prakash, Monitor that Devi Lal was fighting and was not coming up stairs, upon which Prem Prakash went to the ground floor and brought Devi Lal and made him sleep. It was 10.45 p.m. There was a room of Hari Ram on the northern side of the room of Devi Lal. One Rughnath Badhala threw his bed, upon which he (Pradeep Kumar Sharma) tore his 'Baniyan'. He and Rughnath were fighting at which time Devilal went towards the bathroom. Some time after Devi Lal had gone to the bath room, Prakashji, PTI sent him into the room. Immediately on his arrival, he (P.T.I.) gave him and Rughnath a slap. P.T.I, then told them to switch off the light. Devilal had not come back from the bathroom and thereafter, PTI went towards the side of bathroom. Thereafter, they slept and got up in the morning at 5. All the boys got up but Devi Lal did not. There was a rope around the neck of Devi Lal. At that time, PTI was coming up-stairs. Other teachers also came after Devi Lal had died.

14. Vinod Singh Rathore, examined as PW-4, stated that on 28.7.2000 he was working on the post of PTI in Sumitra Secondary School, Losal. He knew Devi Lal son of Baluram who was student of Class IV. He, Prakash Chand and Virendra all were sleeping in the room of warden. He (Vinod Singh Rathore) went to the bathroom. Thereafter, Prakash Chand also went to the bathroom for urinating. Prakash did not tell anything at that time. Then on second occasion, when he came for urinating, he told him (the witness) that one boy named Pradeep was doing something nonsense and that he had given him a slap. In the morning, they found a rope around neck of Devi Lal. When he went down stairs, he found that the boy had already died. One rope was recovered from the bag of Prakash which was lying in the room of Warden regarding which writing was made by the police. In his cross examination, he stated that the police had come to the school at 7 in the morning on 26th July, 2000 and that statements were recorded on 26th itself. Police was making enquiries from him for 6-7 days. He admitted that during these 6-7 days, he consistently told the police that he would not know anything about the occurrence. He stated that Virendra, Prakash Chand and Jagdish as also Bhanwar Lal were sleeping in the Warden's room before and after the occurrence. Prakash Chand had a bag in which he used to keep his wearing clothes. He admitted that a rope had been recovered by the police on the date of occurrence itself. When he first saw Devilal, there was no rope around his neck. He stated that Prakash Chand had been appointed in the school only 5-7 days earlier to the date of occurrence. He admitted that he had not heard anything adverse with regard to the character of the appellant and that he was a competent person. He stated that he could not believe that the appellant might have killed Devi Lal. He further stated that the appellant was not arrested on the same day but was taken by the police on 30th or 31st of the month.

15. PW-13 Heera Lal stated that on 26.7.2000 he had seen the dead body of Devi Lal in the hospital.. Seven days thereafter the SHO had recovered a rope from the bag of the appellant in Room No. 5 of the hostel. Room No. 5 belongs to the staff of the school. Prakash Chand had shown the bag to the SHO which was opened by him and a rope measuring 9' with a string was found. On 26.7.2000 the SHO compared the rope found from the bag of the appellant with that which was found around the neck of Devi Lal. The two pieces of rope were found to be similar. In his cross- examination, he stated that on the date when the rope was recovered, the SHO had come at 10 a.m. in the school.

16. There will be no need to give further details of the evidence, as it is only on the basis of two circumstances as fully mentioned above, that the prosecution sought conviction of the appellant. It may however be mentioned that Ex.P.9 and Ex.P.40 are statements of the witnesses recorded by the Magistrate Under Section 164 Cr.P.C.

17. Mr. Suresh Sahni, learned Counsel representing the appellant vehemently contends that the learned Trial Judge wrongly relied upon the statements made by the witnesses Under Section 164 Cr.P.C. with a view to attribute motive to the appellant to commit the crime. Motive to commit crime as mentioned in the statements Under Section 164 Cr.P.C. was intention of the appellant to commit sodomy, resistence of which by the deceased resulted in the commission of crime. This part of the statement made Under Section 164 Cr.P.C. was not supported by any of the witnesses whose statements were recorded Under Section 164 Cr.P.C. Learned counsel thus contends that reliance placed by the learned Trial Judge on Ex.P.9 and Ex.P.40 statements recorded Under Section 164 Cr.P.C. for conviction of the appellant-was wholly illegal. Learned counsel further contends that extra judicial confession said to have been made by the appellant before PW-7 Sanwarmal besides being not corroborated by anyone else in whose presence the said statement was made, is highly doubtful and that recovery of rope stated to have been made on the disclosure statement made by the appellant does not inspire any confidence.

18. Learned counsel appearing for the State, however joins issues with the learned Counsel for the appellant, on all the points mentioned above.

19. We have heard learned Counsel for the parties and with their assistance have examined records of the case.

20. Rameshwar Lal (PW-3), as mentioned above, did not state that the appellant had confessed his guilt before him. However, in his statement that was recorded Under Section 164 Cr.P.C. by the Magistrate he had stated that the appellant had told him that this mistake was made by him. He had further stated in the said statement that the cause resulting in the death of Devi Lal was resistence shown by him on the attempt of the appellant to commit sodpmy. Naturally, Rameshwar Lal (PW-3) did not state even a word with regard to the motive that actuated the appellant to commit crime. Sanwar Mal (PW-7) had deposed with regard to the appellant making confession before him but he did not state a word with regard to the motive that is said to have actuated the appellant to commit the crime which he did state before the Magistrate when statement Under Section 164 Cr.P.C. was recorded. Both the witnesses named above were not declared hostile by the Public Prosecutor nor were cross-examined.

21. In the circumstances mentioned above, contention of the learned Counsel for the appellant appears to be right that no reliance at all could be placed upon statements made by PW-3 Rameshwar Lal and PW-7 Sanwar Mal so as to co-relate the motive leading to the commission of crime, as having been proved. It is too well settled that statements of the witnesses recorded Under Section 164 Cr.P.C. are not substantive evidence and the same can be used only to corroborate or contradict the witnesses. The said statements cannot be made use of except to corroborate or contradict the witnesses. Hon'ble Supreme Court in State of Delhi v. Shri Ram Lohia : AIR1960SC490 held that 'an admission by a witness that a statement of his was recorded under Section 164 of the Code and that what he had stated there was true would not make the entire statement admissible; much less could any part of it be used as substantive evidence in the case.' It was further held that 'a Judge commits an error of law in using the statement of a witness under Section164 as a substantive evidence in coming to the conclusion that he had been won over.' In our considered view, learned Trial Judge committed a patent error of law in relying upon the statements made by PW-3 Rameshwar Lal and PW-7 Sanwar Mai before the Magistrate Under Section 164 Cr.P.C.

22. In so far as extra judicial confession is concerned, the same is stated to have been made before Sanwar Mal (PW-7), a Peon in the school. The school was owned by Ranveer Singh. According to the statement made by him, it was at about 12.30 in the afternoon when he and Rameshwar Warden were talking as to how the occurrence had taken place that the appellant came and stated that this occurrence had taken place from his hands. He and the Warden then informed Ranveer Singh, owner of the school, who along with them went to the police station. In his cross-examination, he stated that his statement was recorded by the police on the next day of the occurrence. His statement was recorded on 3-4 occasions for the reason that he had consistently told the police that he was sleeping on the ground floor and would not know anything about the occurrence. It is significant to mention that Rameshwar Warden (PW-3) has not supported Sanwar Mal (PW-7). As mentioned above, he did not make a mention even in examination-in-chief that the appellant had come in the room where he and Sanwar Mal were present and confessed his guilt. In the facts and circumstances of the case, it is difficult to place reliance upon the statement made by PW-7 Sanwar Mal who himself stated in the cross-examination that his statement was recorded on 3-4 occasions for the reason that he had consistently told the police that he was sleeping on the ground floor and would not know anything about the occurrence. As mentioned above, Rameshwar PW-3, Warden of the hostel, has not corroborated the statement made by PW-7 Sanwar Mal. It also looks improbable to this Court that author of the crime would confess his guilt before a Class- IV employee of the school namely Sanwar Mal, who was holding the post of Peon and not before owner of the school or anyone else in authority who might be in a position to help him. Ordinarily, confession is made by author of the crime to a person who may be in a position to help him. A peon of the school, in our considered view, would not have been in any position to help the appellant at all. Confession said to have been made by the appellant before the peon of the school does not inspire any confidence. It is too well settled that extra judicial confession by its very nature is a weak type of evidence and requires appreciation by the courts with great deal of caution. Reference in this connection may be made to the judgments of the Supreme Court in Balvinder Singh v. State of Punjab (1995) Supp. 4 SCC 259, Kavita v. State of Tamil Nadu : 1998CriLJ3624 Mulak Raj and Ors. v. State of Haryana : 1996CriLJ1358 , Makhan Singh v. State of Punjab (1988) Supp. SCC 526 and Kuldip Singh and Anr. v. State of Punjab : 2002CriLJ3944 .

23. Evidence led by the prosecution with regard to recovery of part of the rope from the bag containing wearing apparels of the appellant also does not inspire any confidence. The attesting witness of recovery of rope, Heera Lal (PW-13) stated that for effecting recovery of the piece of string SHO Bhanwar Lal had visited the place at 10 a.m. whereas PW-10 Jagdish Prasad Godara, who is a witness to Panchnama of the dead body of Devi Lal stated that recovery of rope was effected at 6.05 p.m. Vinod Singh Rathore (PW-4) one of the witnesses, in whose presence part of the rope is said to have been recovered from the bag of the appellant, stated in his cross-examination that the police was making enquiries from him for 6-7 days and that during these 6-7 days, he had consistently told the police that he would not know anything about the occurrence. He further stated that the rope had been recovered by the police on the date of occurrence itself. If part of the rope was recovered on the date of occurrence itself and that too in his presence and when he knew it that Devilal had died because of strangulation by rope only, it is not possible to believe that for 5-7 days he had been consistently telling the police that he would not know anything about the occurrence. PW-13 Heeralal, the other witness of recovery of rope, stated that on 26.7.2000 he had seen the dead body of Devilal in the hospital and seven days thereafter the SHO had recovered a rope from the bag of the appellant. He, however, further stated that the SHO had compared the rope found from the bag of the appellant with that which was found around the neck of Devi Lal on 26.7.2000. He has made contradictory statements. Whereas he first states that the rope was recovered from the bag of the appellant seven days thereafter, he has also stated that the rope recovered from the appellant was compared from the one found around the neck of Devilal on 26.7.2000 itself. Prosecution on the basis of discrepant evidence of PW-4 Vinod Singh Rathore and PW-13 Heera Lal on material particulars with regard to recovery of rope, in our considered view, has not been able to prove this circumstance against the appellant. That apart, it appears to be unnatural conduct of a human being to leave one part of the rope around the, neck of the deceased and to preserve other which as per prosecution story must have broken while stragulating the deceased. The natural conduct of a human being would be to either leave the entire rope at the scene of occurrence or remove all parts, in the present case, two parts and destroy the same. It further appears to be unnatural that a criminal would keep part of the rope with which he had committed a crime, in his bag. What appears to the Court is that it is only on the basis of suspicion that the police made a case against the appellant and with a view to secure his conviction created evidence. The prosecution story, in our considered view, is based upon suspicion and suspicion howsoever strong, cannot take place of proof.

24. In view of the discussion made above, we are of the view that the prosecution has not been able to prove its case against the appellant beyond the shadow of reasonable doubt and therefore, the appellant deserves to be acquitted of the charges framed against him.

25. We thus allow the appeal and set aside order of conviction and sentence dated 1.5.2001 passed by the Additional Sessions Judge No. 1, Sikar. The appellant is acquitted of the charges framed against him. He shall be set at liberty forthwith, if not required in any other case.