Madan Lal vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J.

The present appeal has been filed through jail after delay of 1712 days. On 30/03/2012 while admitting appeal, a co-ordinate bench has passed the following order:-

"This appeal has been filed by Madan Lal son of Shri Hanuman Sahay, who has been convicted by the learned Additional Sessions Judge [Fast Track] No. 1, Jaipur District Jaipur vide judgment dated 18.04.2006 in Sessions Case No. 82 of 2005.

This appeal is barred by limitation, as there is a delay of 1712-days. The appeal is duly supported by an application under Section 5 of the Limitation Act.

The accused is in Central Jail, Jaipur.

It is stated in the application under Section 5 of the Limitation Act that after the judgment was pronounced and delivered the accused became insane and as a result of which he was unable to file this appeal, though, there is no supporting document in this behalf.

We are inclined to take a lenient view looking to the fact that the accused is in jail in pursuance of the judgment of conviction and sentence awarded to him. The delay is condoned.

The application u/S.5 of the Limitation Act is allowed.

The appeal is admitted.

The record be called for."

Thereafter, the Rajasthan State Legal Services Authority, Jaipur had appointed Shri S.K. Jain as counsel to defend the appellant. Appellant in the present case stands convicted for offence u/S.302 IPC for causing murder of his wife Smt. Pappu Devi. The court of Additional Sessions Judge (Fast Track) No. 1, Jaipur District, Jaipur by impugned-judgment dated 18/04/2006 has held the appellant guilty for offence u/Ss.302 and 309 IPC. After having convicted the appellant for the abovesaid offences, by order of even date, the trial court has sentenced the appellant, as under:-

for offence u/S.302 IPC:- Life Imprisonment with a fine of Rs. 500/- and in default and pay thereof, to further undergo two months simple imprisonment.

for offence u/S.309 IPC:- Rigorous Imprisonment for six months.

The case of the prosecution is that appellant has committed the murder of his wife and attempted to commit suicide and had caused injury on his neck. The FIR in the present case was registered on the basis of the statement (Ex.P10) made by the appellant. Statement of the appellant was recorded by Hari Shankar Sharma (PW14), who was then posted as SHO PS Chaksu. The statement of accused-Madan Lal (Ex.P10) after translated into English is being reproduced, as under:-

"Statement of Shri Madan Lal S/o Shri Hanuman Sahay Meena, by caste Meena, aged 28 years, R/o Radoli PS Chaksu, Jaipur presently undergoing treatment at Primary Health Center, Chaksu dated 4.9.2005:-

I am the resident of Village Radoli and remain at home. In my house, besides me, my wife Smt. Pappu and son aged seven years reside. Yesterday on 3.9.2005 in the evening at 4.00 p.m., I was lying on the cot of the house then, my wife Pappu asked me to bring gawar beans. I had refused to go and stated that I will bring the same later. My wife became angry and she caused me injury on the neck with a knife used for cutting vegetables. The blood was oozing out of the injury. I ran from the house and came towards Bapu village. For the whole night, I remained in the fields. In the morning when I became conscious then, somebody gave information to the police. The village of my in-laws is Tholai, which is near Aandhi." A perusal of the abovesaid statement goes to show that occurrence as stated in the FIR is said to have taken place on 03/09/2005 in the evening at 4.00 p.m., whereas the statement (Ex.P10) of the accused was recorded by Hari Shankar Sharma (PW14) on 04/09/2005 at 8.20 a.m. and on special report of ''ilaka Magistrate'' the case was registered on 05/09/2005 at 10.45 a.m. The trial court considering that FIR was lodged on the basis of the statement of the appellant and there was injury on his neck and weapon and clothes recovered from the appellant tallied with the blood group on the clothes of the deceased, had recorded conviction of the appellant.

We have perused the entire evidence. A peculiar feature of the case is that all the witnesses have turned hostile and nobody has supported the prosecution case. We shall briefly recapitulate the evidence led by the prosecution.

Chanda Lal (PW1) stated that the accused is known to him. He is resident of their village. His wife died 5-6 months ago. She died in the house. Police came to the village. Police had not prepared the site-plan in his presence and had obtained his signatures on the blank papers. This witness further stated that police did not recover any article in his presence. Therefore, witness denied recovery of blood stained mattress (gudadi), blood sample, clothes and blood stained soil lifted from the floor. This witness further stated that while preparing memo Ex.P2 to Ex.P6, the contents thereof were not read over to him and only his signatures were obtained on blank papers.

Vishnu (PW2) is son of the deceased and the appellant. He stated that he had gone to the school. He returned at 4.00 p.m. At that time, his mother was sleeping. He was feeling hungry. He took the meals and is not aware what happened later. This witness has further stated, as under:-

Therefore, according to witness, who has been declared hostile, presence of the accused in the house has not been acknowledged, rather witness has stated in categoric terms that accused-appellant was not present at his house.

Jagdish (PW3) stated that deceased Pappu Devi was wife of the accused, who died. Both husband and wife lived together happily. Jagdish is elder brother of the appellant. This witness has stated nothing incriminating against the accused. This witness also denied recovery of articles from the spot and was declared hostile. Witness denied suggestion that he is making wrong statement being elder brother of Madanlal by resiling from his previous statement.

Arjun (PW4) stated that the accused resides in their village and his wife died but how she died, he is not aware. Witness further stated that he is not aware whether any photograph of the spot was taken or not. Witness stated that he had not seen any injury on the neck of deceased-Pappu Devi. In cross-examination, this witness stated that deceased and appellant were living happily.

Jagdish (PW5) stated that five months ago, he had not gone to the fields of accused-Madan. He is neighbour of the accused. He had not seen any dispute between the husband and wife. This witness further stated that police never brought accused to the house. He had not seen Vishnu on the day of occurrence weeping outside the house. This witness was also declared hostile.

Prahlad (PW6) had attested the inquest proceedings. This witness stated that he had not seen the dead-body and is not aware as to how deceased died. This witness was also declared hostile.

Lal Singh (PW7) had also attested the inquest proceedings (Ex.P7). Police had taken the dead-body to the hospital. Witness further stated that in his presence, no photography was done. He had not seen the injury on the neck of the deceased. This witness was also declared hostile.

Ramdhan (PW8), who had attested the site-plan, was also declared hostile. He denied the fact that police in his presence recovered the knife of the accused.

Dr. Ashok Kumar Sharma (PW9) had conducted the autopsy of the dead-body of deceased-Pappu Devi and as per x-ray report, he found six injuries on the person of deceased-Smt. Pappu Devi.

Ramjilal (PW10) stated that on seeing the mob, he stayed outside the house of the accused. Police had obtained his signatures on papers. Police had not prepared any writing in his presence. Police made him sign on the papers. He stated, as under:-

In cross-examination, this witness admitted that accused is real brother of his wife.

Girdhari Lal (PW11) stated that on 28/09/2005 when he was posted at PS Chaksu as Constable, Malkhana Head Incharge (Moharir) Mahendra Singh had entrusted him eight sealed packets for depositing the same in the F.S.L.

Ramswaroop (PW12) stated that appellant was having cordial relations with his wife. Wife of the accused died 3-4 months ago and how she died, he is not aware regarding the cause of death.

Suresh Chand Sharma (PW13) stated that he is not aware as to how the accused used to treat his wife and he is also not aware as to how wife of the appellant had died. This witness was also declared hostile.

Hari Shankar Sharma (PW14) stated that on 04/09/2005 at about 7.00 a.m. while he was posted as SHO PS Chaksu, Jaipur Rural, he received a telephonic information that one person suffered injury on the neck and is admitted in hospital. He went to the hospital and recorded his statement vide Ex.P10, on the basis of which, formal FIR No. 242/2005 (Ex.P21) was lodged at PS Chaksu, District Jaipur. This witness has proved various faces of investigation.

Mahendra Singh (PW15) stated that on 04/09/2005 when he was posted as Head Constable at PS Chaksu, Incharge-Hari Shankar Sharma entrusted him six sealed packets from the ''malkhana'' for depositing the same in the F.S.L. He stated that videography was done. Later, he handed the sealed samples to the Constable for onward transmission to Laboratory. This witness was examined to prove link evidence.

Thereafter, statement of the accused was recorded u/S.313 Cr.P.C. Accused stated that his relations with his wife were normal and cordial. He has been falsely implicated. On the day of occurrence, he was not present in the village. He had gone to other village and he was forced to sign on blank papers.

We have heard Shri S.K. Jain, who was appointed by Rajasthan State Legal Services Authority, Jaipur, as counsel for the appellant.

Shri Aladeen Khan, learned Public Prosecutor has stated that appellant had admitted his guilt before Hari Shankar Sharma (PW14), SHO PS Chaksu, Jaipur Rural and recovery of clothes and weapon has been effected from him. It is further contended that blood group, which was found on the clothes of the deceased, same blood group has been found on the clothes of the accused, as per the F.S.L. Report. Blood Group ''A'' has been found on the clothes of the accused and the deceased.

Having heard learned counsel for the parties and giving due consideration to the rival submissions, we are of the view that any confession before the police i.e. Hari Shankar Sharma (PW14), who was deputed as a SHO PS Chaksu, Jaipur Rural, is inadmissible in evidence. It is hit by Section 25 of the Indian Evidence Act, 1872. No confession made to the police can be taken into consideration as the same is inadmissible in evidence. Learned Public Prosecutor has contended that dead-body was found from the house of the accused and he had also suffered an injury on his neck of the same duration. This fact alone cannot be sufficient to record the guilt of the appellant unless, prosecution brings some evidence on record that on the day of occurrence, appellant was present in his house and was seen by somebody in the house along with his wife or was present near the place of occurrence. Only witness of the house is child witness-Vishnu (PW2), who is son of the deceased and appellant. He has stated in court, as under:-

Nobody has seen the appellant in the village on the day of occurrence. The appellant in his statement recorded u/S.313 Cr.P.C. has taken a stand that he was in the another village and he had suffered injury in that village. Though, version given by the accused u/S.313 Cr.P.C. may not be true but statement u/S.313 Cr.P.C. is not sufficient to record the conviction of the appellant unless prosecution case stands on its own legs and discharge the minimum burden to say that on the day of offence, accused was found in the house. All witnesses have turned hostile to the prosecution. FIR registered on the statement of the appellant is not a substantive piece of evidence. It can be used to corroborate evidence of the maker. The accused himself has not stepped into the witness box and his statement was recorded u/S.313 Cr.P.C. without oath. Therefore, FIR cannot be used to corroborate the accused, who has not admitted any incriminating evidence in his statement u/S.313 Cr.P.C. The prosecution and the trial court have relied upon the fact that clothes of the accused as per FSL, contained blood Group ''A'', which was also the blood group of the deceased. However, the prosecution has failed to prove the blood group of the accused.

Recently, in D.B. Criminal Appeal No. 39/2005 [Ajay Gupta @ Omprakash Vs. State of Rajasthan], decided on 05/12/2014, a division bench of this Court while relying upon Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, , held that the prosecution ought to rule out the fact that the same blood group may be of the accused.

Para 28 of Shankarlal Gyarasilal Dixit supra is thus reproduced, as under:-

"28. The discovery of a blood stain of the B Group measuring 0.5, cm. in diameter on the appellant''s pant and of a dried stain of semen on his under-pant are circumstances far too feeble to establish that the appellant raped or murder Sunita. ''B'' Group is not an uncommon group of blood and no effort was made to exclude the possibility that the blood of the appellant belonged to the same group. As regards the dried stain of semen on the appellant''s under-pant, he was a grown up man of 30 years and no compelling inference can arise that the stain was caused during the course of the sexual assault committed by him on the girl." 25. We are conscious that it is a case of strong suspicion but strong suspicion cannot take place of proof as there is no tangible admissible evidence to sustain conviction of the appellant.

Prosecution has failed to complete chain of circumstances to arrive at conclusion that offence was committed by the appellant alone and it could not be committed by any other person.

Resultantly, for not bringing necessary evidence on record, out of sheer helplessness, we record acquittal of the appellant while setting aside the judgment dated 18/04/2006 passed by Additional Sessions Judge (Fast Track) No. 1, Jaipur District, Jaipur in Sessions Case No. 82/2005 (State Vs. Madan Lal), and by extending him the benefit of doubt, the appellant is acquitted of the charges. He be released forthwith, if not required in any other case. The record be sent back to the trial court.

Keeping in view, however, the provisions of Section 437A of the Code of Criminal Procedure, 1973, accused-appellant Madan Lal S/o Hanuman Sahay is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- (Rupees Twenty Thousand) and a surety bond in the like amount, before the trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the said appellant, on receipt of notice thereof, shall appear before the Supreme Court.