Mukhtiar Singh @ Falku vs State Of Rajasthan

Sandeep Mehta, J

The appellant herein stands convicted for the offence under Section 302 IPC and sentenced to undergo Life Term Imprisonment alongwith a fine of Rs.1000/- and in default of payment of fine to further undergo 3 months simple imprisonment vide judgment dated 24.07.2012 passed by learned Special Judge (Woman Atrocities and Dowry Cases), Sri Ganganagar in Sessions Case No.47/2012.

Being aggrieved of his conviction and sentence awarded to him, the appellant has preferred the instant appeal under Section 374 (2) CrPC.

The prosecution case emanates from the written report (Ex.P/1) submitted by the complainant Dalbeer Singh, resident of 500 L.N.P. II, to the Station House Officer, Police Station Hindumalkot on 24.04.2010 at 6.30 a.m. at the place of occurrence. It was alleged inter alia in the report that on 24.04.2010 at 5.30 a.m., Mukhtiar Singh @ Falku approached him and confessed that he had killed his wife Darsho Bai, daughter Manjeet Bai and Son Khushpreet Singh in the night at about 12.30 by an axe and that their dead bodies were lying in the room. Thereafter Mukhtiar went away. The complainant went to the house of Mukhtiar Singh and saw the three dead bodies lying in the room and blood was splayed all around. On the basis of this report, an FIR No.79/2010 was registered at the Police Station Hindumalkot for the offence under Section 302 IPC and investigation commenced. The dead bodies were subjected to postmortem and as per the medical opinion, all the three family members of the accused had been hacked to death by multiple injuries caused by a sharp weapon. The accused was arrested vide arrest memo Ex.P/25 and at the time of his arrest, an axe was recovered from his possession vide recovery memo Ex.P/26. The blood-stained shirt worn by the accused at the time of the incident was seized vide seizure memo Ex.P/27 and mobile phone carried by him was also seized. During the course of investigation, feeling remorse for his vile act, the accused requested that he wanted to make a judicial confession, whereupon, he was presented before the Judicial Magistrate, First Class, Sri Ganganagar, who recorded the confession of the accused after following the procedure prescribed under Section 164 CrPC. After completion of the investigation, the investigating officer proceeded to file a charge-sheet against the accused for the offence under Section 302 IPC. As the offence was exclusively triable by Court of Sessions, the case was committed to the court of Sessions Judge, Sri Ganganagar. The trial court framed charge against the accused for the offence under Section 302 IPC, who pleaded not guilty and claimed trial. The prosecution examined as many as 17 witnesses in support of its case. Upon being examined under Section 313 CrPC, the accused denied the prosecution allegations and claimed that he had been falsely implicated by the police. Upon conclusion of the proceedings, the trial court proceeded to convict and sentence the accused as above. Hence, this appeal.

Mr. Pankaj Gupta, learned counsel representing the appellant, vehemently and fervently contended that none of the material prosecution witnesses including the complainant supported the prosecution case at the trial and were declared hostile. The judicial confession of the accused recorded by the Judicial Magistrate Shri Prem Singh (P.W.17) is tainted and vitiated inasmuch as, the requisite satisfaction in terms of Section 164 CrPC was not recorded by the Magistrate before beginning the statement and the satisfaction had been recorded at the end of the statement and thus, it has to be presumed that the confession was not voluntary and was made under the pressure of the police. He placed reliance upon the following two judgments in support of his contentions and implored the court to set aside the impugned judgment and acquit the accused of the charge.

(1) Shivappa Vs. State of Karnataka (1994 SC CANDID 1113) (Hon'ble Supreme Court)

(2) Surendra Dharua Vs. State of Orissa (2009 Cri.L.J. 3904) (Hon'ble Orissa High Court.

Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellant's counsel. He urged that the fact regarding the wife and two children of the accused having been hacked to death inside the family house is not in dispute. The murders took place at the night time. There is positive evidence of the material prosecution witnesses that only the accused appellant and the three deceased resided at the house, where the incident took place. In this regard, he drew the court's attention to the statement of the prosecution witness Major Singh (P.W.3), who in his cross-examination made a categoric admission that only the accused and the three deceased were residing in the house in question. Learned Public Prosecutor submits that apart from the fact that the voluntary confession of the accused (Ex.P/56) establishes beyond all manner of doubt that he was the murderer, there are other circumstances, which prove the guilt of the accused beyond all manner of doubt. He urged that when examined under Section 313 CrPC, the accused never took a plea that he was not present in the house in the night time when the murders took place. The witness Guljar Singh (P.W.7), being the brother of the accused appellant, though was declared hostile, but in cross-examination, he admitted that he saw the accused sitting in the Aangan of the house and was crying. Likewise, the witnesses Bhajan Singh (P.W.6) also stated that the accused was present in the house when the police came there. He further submitted that the plea put forth by the defence counsel that the confession (Ex.P/56) is not voluntary and was not recorded after following the due process of law is per se untenable for the simple reason that no such plea was taken by the accused upon being examined under Section 313 CrPC that the judicial confession was not voluntary or was recorded by exerting threat, duress or coercion. He urged that the Judicial Magistrate (P.W.17) gave cogent evidence to the effect that he satisfied himself regarding the free mental state of the accused and after being satisfied that the accused was making the statement voluntarily, he recorded the confessional statement Ex.P/56. No such suggestion was given to the Magistrate in his cross-examination that the confession was tainted by threat, duress or coercion. He, thus, urged that the defence allegation regarding the confession having been recorded without following the due process of law is totally untenable and hence, the appeal should be dismissed.

We have given our thoughtful consideration to the submissions advanced at bar, carefully perused the impugned judgment and threadbare re-appreciated the evidence available on record. The case involves murders of three family members of the accused in the family home in the night intervening 23.04.2010 and 24.04.2010. The witnesses P.W.3 Major Singh and P.W.5 Gurmej Singh, despite being declared hostile on the aspect of the extrajudicial confession made by the accused, affirmed in their cross-examination that only the accused Mukhtiar Singh, his wife and two children used to reside in the house. The three other inmates, who were living in the same house were hacked to death in the secrecy of the night. When examined under Section 313 CrPC, the accused never took a plea that he was not present in the house in the night when the incident took place. Otherwise also and unless proved to the contrary, it can be assumed that owner of a residential premises would be present in his house in the night time. The accused was undoubtedly present in the house in the morning when the crowd collected. Thus, if at all he desired to escape from the rigor of the presumption under Section 106 IPC by taking a plea of alibi, the burden definitely was upon the accused to claim and prove that he was elsewhere when the incident took place. We are amply satisfied that having duly established the fact regarding the exclusive dominion of the accused on the house in question and considering the odd hours of night when the murders took place, unless the accused is able to prove that he was elsewhere at that point of time, by the presumption available under Section 106 IPC, he would definitely be under the burden to dispel that he was not the murderer. As has been mentioned above, the accused neither took such a plea nor offered any such explanation in defence. Rather, upon being examined under Section 313 CrPC, he did not even plead that he was not present in the house when the incident took place. That apart, we have minutely appreciated the evidence of the Judicial Magistrate (P.W.17) and the judicial confession made by the accused (Ex.P/56) and are satisfied that the Judicial Magistrate duly satisfied himself about the voluntary nature of the disclosure being made by the accused before proceeding to record his confessional statement under Section 164 CrPC. The satisfaction has to be objective in nature and should reflect from the evidence as well as the confession itself. The Magistrate categorically stated that he satisfied himself regarding the free will of the accused, he gave him the statutory warning against self-implication and then recorded the confessional statement (Ex.P/56) under Section 164 CrPC in question answer form. Not a single aspersion was cast by the accused upon the manner of recording of the statement when the particular question No.17 was put to him under Section 313 CrPC. The accused never took plea that the Magistrate did not objectively satisfy himself regarding his free will in making the confessional disclosure. Thus, we are duly satisfied that the confessional statement (Ex.P/56) of the accused recorded by the Magistrate was voluntary and was recorded without any threat, duress or coercion.

We feel that the ratio of the Supreme Court decision in the case of Shivappa (supra) and the Orissa High Court judgment in the case of Surendra Dharua (supra) relied upon by the learned defence counsel does not help the accused in any manner whatsoever as the facts involved therein are totally distiguishable from those of the case at hand. There are other circumstances available on record, which are enough to satisfy us that confession made by the accused was voluntary. The accused himself filed an application before the trial court claiming to be suffering from schizophrenia. He was subjected to medical examination in the Department of Psychiatry, S.P. Medical College and Associate Group of Hospitals, Bikaner. The certificate dated 01.11.2010 issued from the Psychiatry Department forms a part of the record. In this certificate, the doctor, who examined the accused categorically recorded that the accused expressed that he had killed his wife and two children and there is nobody is the world, who is his own. There is no hope for future and he should die. In this background, we are duly satisfied that the confession of the accused Ex.P/56 was recorded in lawful manner after satisfying all requirements of law preceding the recording of the judicial confession.

In view of the discussion made hereinabove, we are of the firm opinion that the trial court appreciated the evidence available on record in an apropos manner while recording the guilt of the accused. The impugned judgment 24.07.2012 passed by learned Special Judge (Woman Atrocities and Dowry Cases), Sri Ganganagar in Sessions Case No.47/2012 does not suffer from any illegality, infirmity or shortcoming whatsoever warranting any interference. Thus, the appeal lacks merit and is dismissed as such.