Kistoora Ram vs State of Rajasthan

Deo Narayan Thanvi, J.—This appeal is directed against the judgment of the learned Sessions Judge, Jodhpur, dt. 10.01.1986, whereby he convicted the accused appellant Kistoora Ram u/s 302 IPC and sentenced him to undergo life imprisonment and to pay a fine of Rs. 100/-. He was also convicted u/s 201 IPC and was sentenced to three years R.I. and to pay a fine of Rs. 100/- and in default, to further undergo three months RI on each count. Both the substantive sentence were ordered to run concurrently.

Facts leading to this appeal are that a written report, Ex.P/1, was lodged by Khushal Singh, PW 1 at Police Station, Dechu, Distt. Jodhpur, wherein it was alleged that wife of the accused appellant viz. Smt. Kamla was lying in a burnt condition in the field. The police on the basis of this information registered a case under Sections 302 and 201 IPC. The investigation was commenced. The post mortem of the dead body of Smt. Kamla was conducted. At the instance of the accused Kistoora Ram, a lathi was recovered. After investigation, the police filed challan against the accused appellant Kistoora Ram as well as Smt. Raju, who is said to have helped accused Kistoora Ram in setting fire on the body of deceased Kamla. After investigation, the police filed charge-sheet against the accused appellant Kistoora Ram and Mst. Raju. After committal of the case, the learned trial Judge framed charges against the accused Kistoora Ram under Sections 302 and 201 IPC and against accused Kamla u/s 201, IPC to which they pleaded not guilty. The prosecution examined 9 witnesses. The statements of the accused were recorded u/s 313 CrPC. They led no defence. After hearing the arguments, the learned trial Judge acquitted Smt. Raju but convicted and sentenced the accused appellant Kistoora Ram as above, against which this appeal has been preferred.

We have heard Mr. Nishant Bora for Mr. Niranjan Gaur, learned Counsel appearing for the appellant as well as Mr. K.R. Bishnoi, learned Public Prosecutor and re-appreciated the evidence on record.

Mr. Nishant Bora, learned Counsel appearing for the accused appellant, has submitted that the learned trial Court has committed grave error in sentencing the accused for murder of his wife by relying upon the solitary testimony of Guman Singh, PW 4 before whom the accused appellant Kistoora Ram is said to have made extra judicial confession. According to him, as per the story of the prosecution, the extra judicial confession was made at the field of Hameera Ram, PW 7 but he has turned hostile. He has also stated that Guman Singh, PW 4 told about the extra judicial confession to Pep Singh, PW 2 and Khushal Singh, PW 3 but they have not said anything about this extra judicial confession. Learned Counsel has also submitted that there is no eye witness of the case and the field where the dead body of Smt. Kamla was lying, was belonging to Sona Ram, father of the accused but he has not been examined. There is a lot of un-corroboration and contradiction in the testimony of two material witnesses viz., Guman Singh, PW 4 and Hameera Ram. PW 7. The recovered lathi, as per the submission of the learned Counsel for the appellant, was also not sent for chemical examination, as no blood stains were found thereon. He has, therefore, urged to acquit the accused appellant by setting aside the judgment dt. 10.01.1986 passed by the learned trial Judge.

Per contra, learned Public Prosecutor has supported the judgment of the learned trial Judge.

We have minutely examined the testimony of two material witnesses viz. Guman Singh, PW 4 as well as Hameera Ram, PW 7 vis-a-vis the testimony of other prosecution witnesses.

The law on extra judicial confession has been elaborately discussed by the Hon''ble Supreme Court in catena of cases and it has been held that extra judicial confession is a very weak type of evidence and conviction can be based on such evidence, provided it is corroborated by some cognate and reliable evidence. Of course, there is a rule of caution in complying with the principle of extra-judicial confession as provided for in Section 24 of the Indian Evidence Act which says that any confession caused by inducement, threat or promise is irrelevant in a criminal proceeding.

While discussing the scope of extra judicial confession, the Hon''ble Supreme Court in the case of The State of Punjab Vs. Bhajan Singh and Others, has observed as under:

The evidence of extra judicial confession in the very nature of things is a weak piece of evidence. The evidence adduced in this respect in the present case lacks plausibility and as observed by the High Court, it does not inspire confidence.

Similar principle was reiterated by the Hon''ble Supreme Court in a recent judgment in the case of Gopal Sah v. State of Bihar, reported in 2008 SC 1513, by observing thus:

We are, further, of the opinion that an extra judicial confession is, on the face of it, a weak piece of evidence and the Courts are reluctant in the absence of a chain of cogent circumstances to rely on this evidence for the purpose of recording a conviction.

The crux of the extra judicial confession is that it requires some sort of corroboration either of recovery or of testimony of witnesses associated with the crime or other circumstances. Here, in the present case, the learned trial Judge has based the conviction of the accused appellant on the basis of testimony of Guman Singh, PW 4 and Hameera Ram, PW 7.

Guman Singh, PW 4, has stated that he went at the field of Hameera Ram in the morning at 8 or 9 AM, where accused appellant Kistoora Ram came and told before them that he had killed his wife. According to him, he also told this fact to Pep Singh, PW 2 and Khushal Singh, PW 3. If the evidence of this witness Guman Singh, PW 4 is read in the light of statements of above two witnesses, then it is clear that Pep Singh, PW 2 and Khushal Singh, PW 3 have nowhere stated in their statements that anything was told to them by Guman Singh, PW 4 with regard to extra judicial confession made by the accused appellant at the field of Hameera Ram, PW 7, who has turned hostile but the learned trial Court has relied upon his statement Ex.P/12 in which he told about the extra judicial confession to the police. The statement of Hameera Ram, PW 7 is self contradictory because in examination in chief, he has stated that in the morning at 6 O'' clock, accused Kistoora Ram came and told about killing his wife and sought his help. He further stated that thereafter what happened and as to how the accused killed his wife, was not stated by the accused appellant.

Upon this, he was declared hostile. He was also confronted with his police statement Ex.P/12 to which he replied that he might have told it to the police. On the basis of this contradictory statement, he was cross examined at length and he deposed that when he and Guman Singh went on the spot, the Police was already there and at that time, Guman Singh Sarpanch, Tej Singh etc. were also present there. On the next day, the accused came to him and made this extra judicial confession, Guman Singh, PW 4 has also stated that he told this fact to the police also between 3 to 4 PM in the evening. The day of making extra judicial confession has been stated to be 22.08.1984 but nothing has been said by the Investigating Officer Gulab Singh, PW 9, in this regard and on there contrary, it has been stated by him that it is wrong to say that he made any enquiry from the accused on 22.08.1984. Thus, the statement of solitary witness Guman Singh, PW 4 is neither corroborated by the contradictory statement of Hameera Ram, PW 7 nor by the statement of Pep Singh PW 2. Khushal Singh PW 3 and Gulab Singh, PW 9, the Investigating Officer to whom he told about the extra judicial confession.

That apart, the recovery has also not been believed by the learned trial Court. Therefore, it is difficult to arrive at the conclusion that it was the accused appellant Kistoora Ram, who killed his wife, especially when Sona Ram has not been examined, in whose field the incident is alleged to have taken place. In view of the un-corroborative and contradictory statements of the witnesses, the prosecution story suffers from infirmities and doubt for which the accused appellant Kistoora Ram is entitled to be benefited and no conviction can be recorded on the basis of such weak and un-corroborated extra judicial confession. We are, therefore, unable to confirm the finding of guilt arrived at by the learned trial Judge.

Consequently, we allow this appeal, set aside the judgment dt. 10.01.1986 passed by learned Sessions Judge Jodhpur, convicting appellant Kistoora Ram of the offence u/s 302 IPC and sentencing him to undergo life imprisonment along with a fine of Rs. 100/- and u/s 201 IPC and sentencing him to three years RI along with a fine of Rs. 100/- and in default, to further undergo three months RI along with a fine of Rs. 100/- and in default, to further undergo three months RI on each count and acquit him of the said charges. He is on bail, his bail bonds shall stands cancelled automatically.