Rajinder Singh and other vs State of Haryana

J.S. Sekhon, J.

Rajinder Singh, Mst Janki and Kumari Kamla appellants were found guilty by the learned Sessions Judge, Narnaul, of the murder of Mst. Vidya Devi wife of Rajinder Singh appellant and each one of them was sentenced to undergo imprisonment for life besides to pay a fine of Rs. 1,000/ or in default of payment thereof to further suffer two years'' rigorous imprisonment under Section 302 read with section 34 of the Indian Penal Code. They were also found guilty of having treated Mst. Vidya Devi with cruelty and each on of them was awarded three years rigorous imprisonment under Section 498A of the Indian Penal Code. Both the sentences were, however, ordered to run concurrently. Feeling aggrieved against the above referred order of conviction and sentence, the appellants have come up in appeal.

In brief, the facts of the prosecution case are that Mst. Vidya Devi daughter of Rama Nand CPW2) was married in the year 1983 to Rajinder Singh accused appellant. Mst. Janki is the motherinlaw of the deceased while Kumari Kamla is her sisterinlaw. The deceased gave birth to two premature children who were born dead while the third child died thereafter. Rajinder Singh accused being the only son of his parents, all the accused started maltreating Mst. Vidya Devi on the grouse that she had failed to bring adequate dowry and was not capable of producing any child. As per report dated 28.3.1989 Ex. PJ, lodged by Rajinder Singh accused with ASI Azad Singh (PW 10) Mst. Vidya Devi while drawing water from the well with a bucket accidentally fell therein and died. Her dead body was taken out of the well. ASI Azad Singh than rushed to the spot and prepared inquest report Ex. PA/2 on the dead body and despatched the same for postmortem examination. Rama Nand, father of the deceased was informed by someone from the family of the accused on the evening of 27.3.1989 that Mst. Vidya Devi was having pain in her stomach. On this Chhotu Ram and Tara Chand, brothers of the deceased, went to village Ratta Kalan for inquiring about the health of their sister but on reaching there, they found her dead. They returned to their village Ghatesar and informed their father Rama Nand of the death of their sister.

The autopsy on the dead body of Mst. Vidya Devi was conducted by Dr. A.K. Arora (PW 1) at 3.05 p.m. on 28.3.1989 an the found 8 blunt weapon injuries thereon. Blood was detected between the skull and duramatter all over under injury No. 1. All these injuries were found ante mortem in nature. The doctor failed to notice any signs of death due to drowning.

Rama Nand, father of the deceased continued verifying about the cause of death of her daughter for about 4 days. He then suspected all the three having killed his daughter and went to Police Station Ateli for lodging report on 30.3.1989 but nobody paid any heed to his allegations but he was directed to come to the police station on the next day. On 31.3.1989 he again left for the police station for lodging the report but happened to meet Shri. V. Kamraj, Assistant Superintendent of Police. Incharge of Police Station Ateli at Bus Stand of Ateli Mandi. He lodged report Ex. PB which was concluded at 7.30 a.m. and on its basis, a case u/s 302B read with section 34 of the Indian Penal Code was got registered at Police Station Ateli through Head Constable Ram Singh at 7.45 p.m. A special report of the case was conveyed to the Illaqa Magistrate on the same night at 11.05 p.m. through constable Sumer Singh. Mr. Kamraj (PW9) then visited the spot in the company of Rama Nand (PW 2) and interrogated some persons. He also prepared visual site plan Ex. PF of the spot on 1.4.1989. He also rested Mst. Janki and Kumari Kamla accused from their house located near the tubewell on 1.4.1989. Mst Janki in pursuance of disclosure statement Ex. PG got recovered a lathi Ex P2 from the gunny bags lying in her room. It was wrapped in a sealed parcel and taken into possession. On interrogation Kumari Kamla accused vide disclosure statement Ex. PH disclosed and got recovered lathi. Ex. P3 from the dry fodder lying in her house. It was also wrapped in a sealed parcel and taken into possession.

On 1.4.1989, Rajinder Singh accused approached his fatherinlaw, Rama Nand in the presence of Subedar Rameshar (PW 3) and Mahabir (PW 4) at about 7 p.m. and begged pardon from his fatherinlaw by touching his feet and confessing that he along with his mother and sister has killed Mst. Vidya Devi by giving blows with lathis. He further stated that his mother had secured the victim while he along with his sister was giving injury with lathi. He further confessed having drowned the dead body of Vidya Devi in the well. He sought the help of these persons for his production before the police but as it had grown late, Rameshar (PW 3) promised to produce him before the police on the next day. Accordingly, Rajinder Singh stayed for the night with Rameshar and on the next day, this witness alongwith Rama Nand, Chhotu and Mahabir produced Rajinder Singh accused before A.S.P. Kamraj at the police station. He was arrested after recording the statement of above referred witnesses. Rajinder Singh accused was interrogated at about 3 p.m. by Mr. Kamraj and vide disclosure statement Ex. PC he disclosed having kept concealed one lathi in the chhappar (thatched hutment of the tubewell) and got recovered lathi Ex. P.1 from the said place. It was wrapped in a sealed parcel and taken into possession. The accused also offered to confess his guilt before the Magistrate. Accordingly, Mr. Kamraj moved an application Ex. PE before Shri P.C. Goyal (PW 8), Additional Chief Judicial Magistrate, Narnaul for recording the statement of accused u/s 154 Cr.P.C. The magistrate asked the police officials and the A.P.P. to leave the courtroom. He then verified from the accused whether he wanted to confess his guilt. The accused was then sent to judicial lock up for being produced on the next day in order to remove pressure of the police from his mind. Again Rajinder accused was produced before the magistrate on 4.4.1989 by a constable. The constable was sent outside the court room. The Magistrate then put questions to the accused in order to verify whether he was making the confession voluntarily or under some pressure, besides apprising him that this confessional statement may be used against him. Rajinder Singh accused, however, asserted that he was making the statement voluntarily and without any pressure. The Magistrate then recorded his statement Ex. PE/4, in the presence of Shri H.P. Sanghi, Advocate, counsel for the accused. The accused confessed that he along with his mother Janki and sister Kamla were serving fodder to the cattle on 27.3.1989. The weather was bad. They asked Mst. Vidya Devi to do some work and she undertook to do the same but they were putting her in fear. Due to fault, he happened to inflict an injury on the forehead and neck of his wife with a danda. Thereafter, he alongwith his mother and sister threw Mst. Vidya Devi into the well. Then his father arrived there and raised an alarm which attracted the neighbours. Vidva Devi was then taken out of the well. A message was sent to her parental house. Then his fatherinlaw came. He (Rajinder) appellant then fell on the feet of his fatherinlaw and begged his pardon saying that he has committed a blunder. The sarpanch of Ghatesar then gave assurance to Rajinder Singh accused and handed him to the police. After recording the abovereferred confession Ex. PE/4 of Rajinder Singh accused, the Magistrate sent him to judicial custody. After completion of investigation, all the accusedappellants were arraigned for trial on such like allegations.

The learned Sessions Judge, Narnaul, framed a charge under Section 302 read with section 34 of the Indian Penal Code against all the three accused appellants regarding the murder of Mst. Vidya Devi. In the alternative a charge under Section 304B of the Indian Penal Code was also formed against all the accused appellants. A charge under Section 498A IPC was also framed against all the accused. The accuseappellants, however, pleaded not guilty to the charge and claimed trial.

In order to prove its above referred case before the trial Court, the prosecution examined ten witnesses. Rama Nand (PW2), Rameshar (PW3) and Mahabir (PW4) supported the case of the prosecution regarding the extrajudicial confession of Rajinder Singh accused before them, while Mr. P.C. Goyal (PW8) proved the confessional statement Ex. PE/4 of Rajinder Singh accused before him. The remaining witnesses were given up as being unnecessary.

The version of all the accused before the trial Court was that of innocence and false implication. Rajinder Singh accused gave explanation about the fall of his wife Vidya Devi in the well as under :

"We were present in our fields and busy in reaping the sarson crop. The weather was bad and wind was blowing fast. Vidya Devi was drawing water from the well. She lost her balance and fell into the well. We were at some distance and heard the noise of her falling down. The neighbourers were called and they brought out the dead body. The matter was not reported on the same day as it was dark and conveyance was not available because of bad weather. In the morning, I and Narender Panch went to Police Station, Ateli to report the matter. Two persons had been sent on the previous evening to the village of the parents of the deceased and they had been informed of this occurrence in this manner. Chhotu Ram and Tara Chand brothers of the deceased were present when the police interrogated them in the morning in the inquest proceedings. They did not suspect any foul play, nor did they talk about any dowry. I have nothing more to say. I am innocent."

Kumari Kamla accused, on the other hand, stated that she was not present in the house at the time of this occurrence as she at that time was in the school and when she returned from there, she found the dead body of Vidya Devi having already been taken out of the well and came to know that she had fallen in the well while drawing water. Mst. Janki also adopted the version of Rajinder Singh accused.

When called upon to enter on their defence, the accused examined Mata Din (DW 1) who stated having arrived at the spot after being summoned by Ram Sarup, father of Rajinder Singh accused and found the dead body of Vidya Devi lying inside the chhappar and a pitcher was lying near the well, besides a bucket with rope was also lying near the well. The accused then informed him that she had died by accidental fall in the well while drawing the water. On instructions of Ram Sarup, he went to the parental village and apprised Rama Nand of this episode. Rama Nand along with Tara Chand, Chhotu Ram and Subhash Accompanied him to the spot. The police was not informed during the night due to bad weather. In the next morning, the police arrive at the spot and after interrogating many persons, was satisfied about the accidental death of Mst. Vidya Devi.

The trial Court, however, believing the confessional statement of Rajinder Singh accused before Shri P.C. Goyal, Magistrate, as well as before Rama Nand, Rameshar and Mahabir witnesses coupled with the medical and circumstantial evidence convicted and sentenced the accused as stated above. The defence version did not find favour with the trial Court mainly on the ground that no structure or device meant for drawing water with the help of a rope and bucket existed on the well.

We have heard the learned counsel for the parties besides perusing the record.

There is considerable force in the contention of Mr. Baldev Singh, learned counsel for the appellants that the allegation of Rama Nand (PW 2) and Mst. Ram Piari (PW 5), parents of Mst. Vidya Devi deceased that the accused used to maltreat their daughter on account of having brought inadequate dowry is not acceptable because the marriage took place about five years prior to the occurrence and it is not the case of any of these two witnesses that the accused had set up a particular demand of dowry on the occasion of marriage. Moreover, if Mst. Vidya Devi was actually maltreated on account of having brought less dowry or on her failure to give birth to any healthy child, then Rama Nand (PW 2), father of the deceased, would not have waited for four days in verifing the cause of the death of his daughter and then lodged the repot with the police. Similarly, the version of Rama Nand (PW 2) that a person of the family of the accused had brought the message on the evening of 27.3.1989 that his daughter, Vidya Devi, was having pain in the stomach, is also not acceptable as in case such a wrong message about the ailment of his daughter was conveyed to him, his sons Chhotu Ram and Tara Chand, after visiting the spot must have conveyed to him that their sister was lying dead with injuries of her person and in that case Rama Nand would at once suspect the involvement of the accused in the murder of his daughter and rushed to the police station on that very day or on the next day for lodging the report. Consequently, the possibility cannot be ruled out that Rama Nand (PW 2) on the well founded or ill founded suspicion had averred in his statement Ex. PB recorded on 31.3.1989 that his daughter was being maltreated by the accused on account of having brought less dowry and on account of her failure to give birth to any healthy child.

The matter does not rest here as admittedly Rama Nand (PW 2) had sent his son Chhootu Ram and Tara Chand on 27.3.1989 for enquiring into the health of his daughter and on their return, they appraised him that she was found dead. ASI Zzad Singh had recorded the statements, of aforesaid Chhotu Ram (Ex. PJ/1) and Tara Chand (Ex. PJ/2) bones of Rama Nand and brothers of the deceased during the inquest proceedings besides of many other witnesses. He also found a pitcher and a bucket tied with rope lying near the well. Thereafter being satisfied with the version of Rajinder Singh accused that his wife Vidya Devi had fallen into the well accidentally, did not feel the necessity of registration of a case against the accused which in turn implies that Chhotu Ram and Tara Chand, brothers of the deceased had not set up any case before ASI Azad Singh during the inquest proceedings that their sister was earlier maltreated by the accused on account of having brought less dowry and for her failure to give birth to a healthy child. The brothers of the deceased were expected to cry hoarse at the outset on seeing their sister lying dead, if at all there was earlier history of her being maltreated by the accused on the abovereferred score but strangely enough, both the brothers of the deceased had not said so before the police at the outset which also belies the version of Rama Nand and Mst. Ram Piari, parents of the deceased in this regard.

The question then arises whether the evidence of extrajudicial confession of Rajinder Singh accused, before his fatherinlaw, Rama Nand, Rameshar and Mahabir witnesses, is reliable or whether the confessional statement of Rajidder Singh accused before Shri P.C. Goyal, Judicial Magistrate is voluntary or made under police pressure. In this regard, it is noteworthy that Rajinder Singh accused would be the last person to seek the help of his fatherinlaw Rama Nand in saving him from the police qua the murder of his wife Mst. Vidya Devi specially when there was no dearth of respectable in his own village for his production before the police. Rameshar (PW 3) and Mahabir (PW 4) happened to be covillagers of Rama Nand (PW 2). It is not acceptable that Rajinder Singh accused would make a confession of such a heinous crime in the presence of so may persons including his father in law Rameshar (PW 3) and Mahabir (PW 4) witnesses being covillagers of Rama Nand must be feeling agitated after they suspected that Vidya Devi had been killed by her husband with the help of his mother and sister. Consequently, the evidence of these witnesses qua extrajudicial confession of Rajinder Singh accused is not at all reliable.

The question then arises whether confession of Rajinder Singh accused before the Judicial Magistrate, Narnaul, can be made basis of conviction of his accomplices Mst. Janki and Kumari Kamla. In this regard, it is noteworthy that section 30 of the Indian Evidence Act, 1872, reads as under :

"Consideration of proved confession affecting person making it and others jointly under trial for same offence When more persons than one are being tried jointly for the same offence, and a concession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession."

A bare glance through the above referred provisions leaves no doubt that confession of coaccused may be taken into consideration by the court against other co accused if they are being jointly tried for the same offence or abetment thereof. The word `may'' used in connection with taking such confession into consideration against the coaccoused, in turn, implies that discretion is left with the concerned court under circumstances of a particular case, to take into consideration confession of coaccused against the other coaccused tried jointly for the same offence. The confession of accused person cannot be said to be evidence in the ordinary sense of evidence defined in Section 3 of the Evidence Act. The evidentary value of such confession against the coaccused is even lesser than the evidence of an approver because the veracity of such confession cannot be tested by crossexamination by the coaccused. But such right exists in the case of evidence of an approver. In illustration (b) of section 114 of the Evidence Act, the evidence of an accomplice is to be treated as unworthy of credit unless he is corroborated in material particulars Section 133 of the Evidence Act provides that an accomplice shall be a competent witness against the accused person and conviction is not illegal because it proceeds upon the uncorroborated testimony of accomplice. Apex Court in Kashmira Singh v. State of Madhya Pradesh, AIR 1952 Supreme Court 159 while determining the liability of Kashmira Singh on the confession of Gurbachan Singh, coaccused of Kashmira Singh who had not challenged his conviction or sentence, in para No. 10 of the judgment had observed as under :

"Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first to marshall the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event, the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of he confession he would not be prepared to accept."

In para 11, it was further held :

"Then, as regards its use in the corroboration of accomplices and approvers. A coaccused who confesses is naturally an accomplice and the danger of using the testimony of one accomplice to corroborate another has repeatedly been pointed out. The danger is in no way lessened when the "evidence" is not on oath and cannot be tested by crossexamination. Prudence will dictate the same rule of caution in the case of a witness who though not an accomplice is regarded by the Judge as having no greater probative value. But all these are only rules of prudence. So far as the law is occurred, a conviction can be based on the uncorroborated testimony of an accomplice provided the Judge has the rule of caution, which experience dictates, in mind and gives reasons why he thinks it would be safe in a given case to disregard it. Two of us had occasion to examine this recently in Rameshwar v. The State of Rajasthan, Crl. Appeal No. 2 of 195, AIR 1952 SC 54. It follows that the testimony of an accomplice can in law be used to corroborate another though ought not to be so used save in exceptional circumstances and for reasons disclosed. As the Privy Council observed in Bhubhoni Sahu v. The King, 76 Ind App. 147 at p 157/:

"The tendency to include the innocent with the guilty is peculiarly prevalent in India, as Judges have noted on innumerable occasions, and it is very difficult for the court to guard against the danger......The only real safeguard against the risk of condemning the innocent with the guilty lies in insisting on independent evidence which in some measure implicates such accused."

In the case in hand, literally there is no other evidence against Mst. Janki and Kumari Kamla except the confession of Rajinder Singh coaccused. Thus, in view of the above referred view of the Supreme Court there is absolutely no doubt that retracted confession of a coaccused cannot be made basis of conviction of his coaccused though it may be taken into consideration against coaccused also.

Again apex Court in Shri Shail Nageshi Pare v. State of Maharashtra, AIR 1989 Supreme Court 266, while clarifying the remarks of the High Court that confession alone or in itself cannot prove guilt of the accused person, had remarked as under :

"We are not a little surprised that such a statement should have been made by the High Court. We wish to make it clear that this is only to repeat what is so well established if that a retracted confession by an accused may form the basis of a conviction of that accused if it receives some general corroboration from other independent sources. It cannot, however, be the basis for convicting coaccused though it may be taken into consideration against coaccused also. It is entirely wrong to think that a confession can lead nowhere. We are sorry to find such careless statements in the judgment of a High Court."

Thus, retracted confession of Rajinder Sigh accused in the case in hand can be made basis of conviction if it receives some general corroboration from other independent source provided it passed that test of reliability.

Regarding the reliability of confession of Rajinder Singh accused made before Shri P.C. Goyal, Chief Judicial Magistrate, Narnaul, it transpires that the possibility of the same having been made under police pressure cannot be ruled out. The verbatim English translation of the confessional statement recorded in Ex. PE/ leaves no doubt that it runs contradictory to the alleged confession of Rajinder Singh made before Rama Nand, Rameshar and Mahabir PWs as in the confessional statement it is alleged that the accused had fallen on the feet of his fatherinlaw, Rama Nand, on his arrival at the spot, while admitting that he had committed a blunder by giving a blow of danda on the neck and forehead of his wife, Mst. Vidya Devi and thereafter he alongwith Mst. Janki and his sister Kamla had thrown her dead body in the well but the evidence of Rama Nand, Rameshar and Mahabir witnesses reveal that the accused had contacted Rama Nand in his village Ghatesar whereas the occurrence took place in village Ratta Kalan. They further maintained that Rajinder Singh accused has confessed that the alonwith his sister Kumari Kamla had given injuries with a danda to the deceased while his mother Mst. Janki had secured her. Thus, the place of making confession before Rama Nand and the manner of causing injuries are contradictory in the two alleged confessional statements of the accused which, in turn, imply that the retracted confession of Rajinder Singh accused is not corroborated by the evidence of Rama Nand, Rameshar and Mahabir witnesses. The mere presence of counsel for the accused, Mr. H.P. Sanghi, Advocate, at the time of recording the confessional statement by the Chief Judicial Magistrate is of no consequence especially when there is no indication that the accused was allowed to consult his counsel in privacy before making such statement. Thus, under the abovereferred circumstances of this case, the retracted confession of Rajinder Singh accusedappellant is not in itself sufficient to base conviction.

The matter does not rest here as the medical evidence of Dr. A.K. Arora (PW 1) shows that suffering of injuries by the deceased is more probable during an accidental fall in the well than from the direct result of beating. This doctor has found the following injuries on the dead body of Mst. Vidya Devi during autopsy :

Abrasion scalp right side 4 cms x 3 cms. situated 9 cms left and anterior to right ear.

Lacerated wound lateral side of left elbow joint 1 cm x.5 cm x .5 cm. Deformity of left forearm was present.

Lacerated wound perineal region, 6 cms. x 3 cm s 1 cm.

Abrasion lateral side of right thigh, 12 cms. x 6 cm.

Abrasion lateral side or right leg 7 cms x 4 cms.

Lacerated wound over chin 1 cm x. 5 cm x 5 cm.

Lacerated wound right lateral flank of abdomen 1 cm x. 5 cm x 5 cm.

Lacerated wound on right foot 1.5 cm x .5 cm x .5 cm.

On dissection the doctor also found presence of bright red blood between the skull and duramatter all over. He also detected fracture of upper ends of radius and ulna of left forearm. He further stated that the death could be instantaneous on the suffering of the injuries in this case because of the presence of large lacerated wounds on the perineal region and due to severe hemorrhage. During crossexamination, he admitted that possibility of suffering the injuries during a fall into the well fitted with pegs to support the pipe for drawing water cannot be ruled out. He also stated that in case of a sudden death, the signs of drowning would not be there. He further admitted that in such a case, the shock and terror can caused the death.

A bare glance through the abovereferred injuries leaves no doubt that the same could be suffered during accidental fall in the well fitted with pipes of tubewell or other apparatus. The trial Court ruled out such possibility on the ground that no device or mechanism was fixed on the well for drawing water with the help of a bucket. It had altogether not taken into consideration the usual habit of the villagers in drawing water with the help of a rope and a bucket directly by pulling the rope while standing on the maund of the well especially when it is the case of the accused that there was electric failure due to the storm which impaired the working of the tubewell and prompted Mst. Vidya Devi to draw the water from the well with the help of a bucket and a rope. It is noteworthy that ASI Azad Singh (PW 1) had admitted that a machine had been fitted on the well for drawing water and he found one stone on he well having been dislodged from its place which clearly spells out that the possibility of accidental fall of Mst. Vidya Devi while drawing water from the well, cannot be ruled out.

The presence of lacerated wound on the perineal region i.e. in between the anus and vulva of the deceased is possible only if this portion of the body strikes again some hard substance. In the case of accidental fall, this portion of the body is likely to strike against the pipes of the tubewell or against any projecting object forming part of the fitting of the machine for drawing water and even against the iron bucket during fall. On the other hand, this portion of the body is not exposed to the assailants during usual assault with blunt weapon. Thus, under these circumstances it can be well said that the medical evidence does not corroborate the version of Rajinder Singh accused having given danda blows figuring in his alleged confessional statement made before the magistrate.

The conduct of the accused in informing the relations of Mst. Vidya Devi of her death just thereafter as well as in reporting the matter to the police on the next morning clearly indicates the conduct of an innocent person and not of a guilty one. One the other hand, the four days'' delay on the part of Rama Nand, father of the deceased, in verifying the cause of death of his daughter shows that he has depended upon his imagination in suspecting the accused having killed his daughter by giving her injuries or that they had done so on account of her having brought less dowry or on her failure to give birth to a healthy child.

Consequently, for the reasons recorded above, there is no escape but to conclude that the prosecution has miserably failed to bring home the charge of murder of Mst. Vidya Devi or of cruel treatment of the deceased against the accused beyond reasonable doubt. They are, therefore, ordered to be acquitted by accepting their appeal and setting aside the order of conviction and sentence passed by the trial Court. The appellants be set at liberty forthwith if not required in any other case. The fine, if paid, shall be refunded to the appellants.