Partap vs State of Haryana

S.D. Bajaj, J.

Accused Partap Singh and deceased Raj Mal, both sons of Phul Singh, Jats of village Gokalpura, Police Station Loharu of Bhiwani District, were real brothers. Partap Singh owed to his brother Rajmal 30 Kgs. of wheat. Rajmal demanded it back around 10.00 P.M. on 31st August, 1986. On Partap Singh''s refusal to return it immediately, the deceased abused him and gave him a slap on the left check. After his return to his own house from the house of the accused, Rajmal deceased was lying down on a cot placed outside his house. Partap Singh came there carrying an axe and gave blows therewith on his left jaw as a also left, right and front side of his neck. Rajmal succumbed to him injuries after a short while.

Vide its assailed judgment dated 6th May, 1986 the learned trial court convicted accused Partap Singh of the commission of the offence under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life. Feeling aggrieved therefrom Partap Singh accusedappellant has filed Criminal Appeal No. 407DB of 1986 in this Court.

The prosecution case against the accused is based on an extra judicial confession and the discovery of the weapon of offence Exhibit P1 and bloodstained clothes of the accused. Both the witnesses of extra judicial confession in Bani Singh, PW 1 and Darya Singh, PW 2, turned hostile to the prosecution and did not support its alleged version of the accused making any extra judicial confession of his guilt to them. Learned Public Prosecutor could not dislodge either of the two witnesses aforesaid even while crossexamining them; after getting them declared hostile. In respect of the alleged discovery of axe Exhibit P1 and blood stained Kurta and pyajama of the accused, Jaipal, PW 5 was quite fang and conceded in crossexamination, "The accused had gone inside his house. Police had also gone with him inside the house. I remained outside in the street." Even in examinationinchief the witness had stated, "I did not see him taking out these things but I saw him producing them before the police." Extra judicial confession as also the discovery of the weapon offence and bloodstained wearing apparel of the accused both fall to the ground. The entire edifice built by the prosecution against the accused thus collapses like a house of cards.

In spite of it referring to the observations of Supreme Court in Narayan Singh and others v. State of Madhya Pradesh, AIR 1985 Supreme Court 1678 which read, "It is not open to any court to start with a presumption that extra judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession," learned trial court took upon itself the onerous duty of establishing the guilt of the accused through its ingenuity by developing prosecution argument against the fundamental principle of presuming the innocence of the accused, unmindful of the fact that both the witnesses of extra judicial confession and the only witness of discovery of incriminating articles had resiled and that besides the circumstantial evidence aforesaid there was nothing before it to lend support to the prosecution case set up against the accused.

It is well settled that when the prosecution case rests on circumstantial evidence only, those circumstances should in the first place be finally established and further they should be definite pointer towards the guilt of the accused. In the present case both the circumstances of the accused making an extra judicial confession of his guilt to the Sarpanch and Chowkidar of the village as also of the discovery of incriminating articles in axe Exhibit P1, Kurta Exhibit P7 and pyajama Exhibit P8 having been negatived by the alleged witnesses themselves, the circumstantial evidence could not be regarded to have been indubitably established and as such it was highly unsafe for the learned trial court to act thereon. It is also well established that the accused can be convicted on circumstantial evidence only if every other reasonable hypothesis of guilt is completely excluded and the circumstances are wholly inconsistent with the accused.

A reference to paragraphs 9 and 18 of the assailed judgment dated 6th May, 1986 of the learned trial court would show that much capital has been made by it of the blood of group `B'' having been found on Gadela, Charpai and pyajama Exhibit P8, allegedly worn by the accused at the time of occurrence vide reports Exhibit PS and Exhibit PS/1 received from the Forensic Science Laboratory, Jaipal, PW 5 having not supported the discovery of pyajama Exhibit P8 on the accused pointing out the place of its concealment, the edifice built by the learned trial court thereon, is of no avail to the prosecution. It was held in Mahmood v. State of Uttar Pradesh, AIR 1976 SC 69 that conviction cannot rest on this solitary circumstance. The main planks in the circumstantial evidence, both of extra judicial confession and discovery having given way, conviction of accusedappellant by the learned trial court cannot be sustained.

In result we accept the appeal, set aside the assailed judgment dated 6th May, 1986 of the learned trial court and acquit the accused.