Ram Lal vs The State

A.M. Mir, J.—Convicted u/s 302, RFC and sentenced to imprisonment for life, with a fine of Rs. 500/- in default of payment of which he

will undergo three months further simple imprisonment, appellant-accused has preferred the present criminal appeal against the judgment of

Sessions Judge Kathua dated 12-7-1990. The man grounds on which the present appeal is filed are as under:--

(i) That the impugned judgment/order is perverse because the evidence has been mis-appreciated.

(ii) That the prosecution witnesses happen to be close relatives of the deceased and the Trial Court while believing their statements has committed

an error of law;

(iii) That even if the prosecution version would be believed it was a case of 'mistake' and conviction u/s 302 RFC was. not warranted.

Brief facts of the prosecution case :

Deceased, Karan Singh, a young student who use to sleep in his father's shop for keeping a watch and ward during night, left his house at 10.30

p.m. on 15th July, 1986 for the shop which stood at some distance. He was shot at between 10.30 and 11 p.m. prosecution witnesses; including

the father and mother of the deceased, on hearing a gun shot immediately came out to find out as to what had happened. On reaching near the

house of the appellant they found some one gasping for breath. Drawing close to him they saw that the deceased Karan Singh was lying wounded

and unconscious. When they started crying, the accused with his father came out of their house and fell on the feet of Sham Dai, mother of the

deceased, stating that mistake had been committed by him. He had killed him. The deceased was then straightway carried to Billawar Hospital

which fell at a distance of 2 to 3 K.Ms. He expired at 12.30 mid-night. Soon after the death of the deceased, F.I.R. was registered at 12.50 p.m.

and statements of the witnesses recorded. This FIR was received by the Judicial Magistrate Billawar on the same day at 10 a.m. sharp. Police

completed investigation, recovered the gun and produced challan before the trial Court, on pleading not guilty appellant was tried. Prosecution has

produced 14 witnesses, including Hari Chand Isher Singh, Kesar Singh, Mst. Sham Dai and Ram Dhan. Towards the conclusion of the

prosecution evidence, statement of the accused in term of Section 342, Cr.P.C. was recorded. He has evasively denied every question which was

put to him in respect of the evidence that had come against him. He has however, admitted that he and his father went to the spot where the

deceased was lying where Hari Chand PW had asked them that somebody had killed his son. He has in this statement refused to produce any

evidence in defence. The Sessions Judge on the anvil of evidence before him has convicted the accused and awarded life imprisonment with a fine

of Rs. 500/- in terms of Section 302, R.P.C.

The main features of the prosecution case which shall be elaborated subsequently, can be outlined as under:

(A) Extra-judicial confession;

(B) Accused immediately after the firing of the gun, having been seen by the prosecution witnesses going back to his house along with the gun;

(C) Disclosure and discovery of gun;

(D) Medical evidence;

(E) Motive.

A--Extra-judicial confession :

As soon as the deceased left his house his parents heard sound of gun shots from the side through which pathway to their shop leads. Feeling

perturbed they lose no time in going out to locate as to what was the matter. When they found their son unconscious in a pool of blood they started

raising hue and cry. Appellant is said to have fallen upon the feet of Mst. Sham Dai mother of the deceased, whereafter he had confessed that the

deceased was killed by him. This has been unequivocally stated by prosecution witnesses Sham Dai and Hari Chand parents of the deceased.

Kesri Singh and Isher Singh P.Ws. have not only supported this version but despite lengthy cross-examination they have stuck to the version that

the confessional statement was made by the accused appellant in their presence. It will be pertinent to mention here that FIR which was registered

only some minutes after the death of the deceased boldly finds a mention of this extra-judicial confession. The electronic speed with which the

investigating agency seems to have moved in registering FIR, recording the statements of prosecution witnesses and submitting the challan to the

Magistrate leaves no room for apprehension that the story of extra-judicial confession was introduced by way of manoeuvring or padding.

B--Accused seen with gun:

After the extra-juducial confession the second most important circumstance against the appellant is that immediately after firing he was seen going

towards his house along with a gun. This has been stated by P.W. Isher Singh, who has categorically stated that as soon as he heard the gun shots

from the side where house of the appellant was situate, he cried that he had heard a gun shot and himself left towards the house of the appellant

with a torch. According to him it was at that time that he saw the accused appellant going towards his house when he was at a distance of 20/25

feet. He immediately had informed Kesri Singh and Hari Chand P Ws that he had seen the accused with a gun. Both these witnesses have also

testified that they had received this information from the said witness.

C--Disclosure and discovery of gun :

Pursuant to the disclosure statement made vide EXPWRD a country made No. 3030/ 1982-MFG, single barrel was recovered from a corner of

his residential Room hidden behind a steel trunk. The gun had been sealed and sent for Balistic expert's opinion. That at opinion in terms of

EXPWHC certifies that the gun was found to be in normal working condition and the same had been fired through, prior to its receipt in the

laboratory. In his statement u/s 342, Cr.P.C. accused-appellant has denied this recovery and on the other hand stated that this gun-belongs to his

father whereas, according to him, he was putting up separately from his father, Mr. Goni in his argument has admitted that the gun is a licenced gun

and he could not deny the ownership of this gun.

D--Medical evidence.

The medical evidence in this case has established that the deceased had prior to his death sustained injuries found on the dead body. The medical

expert has been unequivocal in his opinion that the death of the deceased occurred due to cardiac respiratory failure resulting from gun fire

primarily by injury Nos. 1 and 2. According to this witness the duration of these injuries also has been fixed well within a span of 24 hours.

E---Motive

In this case of pure circumstantial evidence existence of motive assumes importance. Here the prosecution has shown that the deceased used to

make advances with the sister of the appellant namely, Mst. Kamlesh, which was not liked by him. This had ignited a fire of hatred and animosity

against the deceased in the mind of the appellant. Prosecution evidence smacks of this observation having been made by the accused-appellant on

this score before some witnesses. A close scrutiny of the site plan EXPWMT/4 reveals that the house of the appellant is situated quite adjacent to

the pathway through which deceased is said to have passed on the fateful day of occurrence. The houses of the complainant and Isher Singh PWs

are on the nothern side of the spot of occurrence. These two houses are adjacent to each other. Kamla tree which is said to have received some

pellets out of the gun shot is quite at the head of pathway. An over all examination of this site plan, which is a duly proved document, corroborates

version of prosecution witnesses.

We will have to marshal the points raised by the defence counsel in the arguments and the grounds taken in the memo of appeal in the backdrop

of the above detailed circumstances. But before we do that we want to place one more important aspect of the case on record. Accused-appellant

has not led any defence leaving whole prosecution evidence unrebutted. It is cardinal principle of law that a person who is facing trial has not only

to rebut what has come against him in the evidence but he has also to probabilise a different version which favours him. The cross examination, no

doubt is a weapon in the armoury of a defence counsel to shatter the credibility of a witness but apart from doing that defence has one more

advantage of leading evidence in rebuttal. Once neither of the weapons is used, prosecution evidence remains as it is and the Court has no power

to brush the same aside. Judicial findings on this point are clear that the statement of a witness on a particular point, if not challenged by way of

cross-examination shall be taken to have been proved. When an accused declines to avail himself of the opportunity of shaking the prosecution

evidence or giving out essential and material particulars of its case in defence or extract the same by way of cross examination it must follow that it

did not dispute the testimony given by the prosecution witnesses who have deposed against the accused. As a result of this concept of law we .

have no hesitation in believing that part of the evidence which has ail along remained unrebutted.

Adverting to the grounds on which learned Counsel for the appellant has dwelt we, quo those points, return our findings as under:---

(i) On the strength of the evidence on record, and reasoning discussed above, we are convinced that the Trial Court correctly appreciated the

evidence. The focal point of challenge made by the learned Counsel for the appellant upon the impugned judgment is that the Trial Court

erroneously relied upon the extra-judicial confession which according to Mr. Gom was not corroborated. We dismiss this argument because here

in this case the extra-judicial confession has been fully corroborated. Secondly because the law on the point is tired that extra-judicial confession in

all cases does not require to be corroborated. Where it is believed that the extra-judicial confession was made voluntarily the exact words of the

confession are reproduced there was no motive for the witnesses to implicate the accused, the same was not made in suspicious conditions or with

some temptation duress or undue influence, can form the basis for conviction and can be relied upon. The Hon'ble Supreme Court in Piara Singh

and Others Vs. State of Punjab, has laid down the following ratio :--

Law does not require that the evidence of an extra-judicial confession should in all cases be corroborated. In the instant case, the extra-judicial

confession was proved by an independent witness (Sarpanch) who was a responsible officer and who bore no animus against the appellants. There

was hardly any justification for the Sessions Judge to disbelieve the evidence of the Sarpanch particularly when the confession was corroborated

by the recovery of an empty cartidge from the place of occurrence.

Same view has been taken by the apex Court of the coutnry in Heramba Brahma and Another Vs. State of Assam, , wherein it was remarked that

an extra-judicial confession to afford a piece of reliable evidence must stand the test of reproduction of exact words, the reasons and motive for

confession and the person selected in whom confidence in reposed must be reliable. Again in Kishore Chand Vs. State of Himachal Pradesh,

Hon'ble Supreme Court held that an extra-judicial confession if found to be voluntary can be safely relied upon by a court, along with other

evidence on record. In the instant case the attendant circumstances, as reproduced above, are sufficiently corroborative. In addition to that extra-

judicial confession is made voluntarily without any duress, undue influence coercion or any other suspicious circumstances. The exact words as

indicated by the accused appellant are proved. There is nothing to show that there was any animosity between the parent of the deceased so that

they would have been interested in implicating the appellant in a false case. Therefore, the Trial Court while placing reliance upon the confessional

statement has not committed any error of law. There is no infirmity in the impugned judgment on that score.

(ii) The witnesses who have been examined by the prosecution in this case are no doubt relatives of the deceased. Mr. Goni learned Counsel for

the appellant has argued that relative witnesses were interested witnesses and by placing reliance upon their testimony, the Trial Court had landed

into error. We have considered this aspect of the argument also, and are not impressed by the same because there is a difference between an

interest witnesses and a relative witness. Every related witness necessarily cannot be an interested witness. The testimony of related witnesses have

no doubt to be scrutinised with due care and caution. But this principle of law can generally hold good in cases when the relations of the rival

parties are strained and a bloody game of implicating adversaries in criminal cases is on. Here in this there is nothing to suggest that the parties ever

had any bitterness inter se. On the other hand they seem to have normal relations. The accused used to address Mst. Sham Dai, the mother of the

deceased, as 'Mami, which means aunty. The site plan EXPWMT/4 shows that the houses of these witnesses were contiguous. It is quite natural

that when a son leaves his parents house for a proposed destination at 10.30 in the night and immediately after his departure a gun shot is heard

from that direction, his mother and father would be the first persons to come out to know as to what had happened. If other prosecution witnesses

living close by, who incidentaly happen to be relatives of the complainant, also come out to know the truth, in the circumstances of such a case they

can be the most natural witnesses and in absence of any animus between the two parties we are not in a position to disbelieve the testimony of

these witnesses. This argument is, therefore, rejected.

(iii) Mr. Goni while making use of the word 'mistake existing in the extra-judicial confession has made a thorough attempt of bringing the act of the

accused within the mischief of Exception I to Section 300 of Ranbir Penal Code. His stand in the alternative is that even if the extra-judicial

confession is believed, it reveals a case of death having been caused by mistake and also on account of grave and sudden provocation. He

canvassed that by losing sight of this word 'mistake' the Trial Court has erred. It was argued that the appellant accused had four sisters at his home.

According to him, the prosecution has floated a story of his making advances to one of the sisters. Mr. Goni has tried to justify that the very

presence of the deceased near the house of the accused at an odd hour must have evoked grave and sudden provocation, which resulted in the

act. We have given our thoughtful consideration to this argument. We are not impressed by the same because the accused has all along before the

Trial Court pleaded that he never fired from the gun, and once the theory of mistake or provocation, is believed, we will have to do so after taking

it for granted that the deceased had died of the gun shot fired by the accused. In addition to that mere sighting of a person, of howsoever dubious

character, out side the house of the accused could not be a source of that standard of provocation which can place the act within the purview of

the exception. The word provocation finding place in the explanation is prefixed by the two adjectives 'grave' and 'sudden'. Therefore, a

provocation which can give the benefit of this exception to the accused should be grave and sudden. The suggestion of the. defence counsel does

not find favour with us and we do not agree that a provocation much less one of grave and sudden nature, was animated in this case to warrant

such wreckless use of force which takes away a human life.

4A. The second limb of Mr. Goni's argument that this could be a case of death caused by mistake also does not find favour with us. He could not

convince us as to by what construction of the word mistake he wanted to bring the act of the accused within the exception. By this stand perhaps

Mr. Goni wanted to convey that the accused appellant had mistaken the deceased for any other person or object. In case the accused had fired his

gun believing the deceased to be another person then also he will be presumed to have known the natural outcome of his act. It hardly matters as

to who died but once the accused knew that he was firing his gun shot upon a human being then he cannot escape from the penal consequences of

the act. In case Mr. Goni wants to convey that the accused had mistaken the deceased for any object, such a beast or a wild animal then again we

are not in a position to agree with him. This is so because this again was neither pleaded nor is a semblance of suggestion available that any forest

was nearby or any wild animals could be expected around, in the plain area, where the occurrence took place.

The word 'mistake has not been defined by the Ranbir Penal Code. Mistake means a slip which must have occurred not by design but by the

mischance. This term connotes misconception or misperception induced by misapprehension or misunderstanding of a fact. The doer of a mistake

should neither have intended nor known the consequences which have followed the act. A mistake is not mere forgetfulness or misadventure

because both with misadventure and forgetfulness mental faculty of the actor happens to be fully at work. Penal Code has all along tried to draw a

distinction between the acts done with due care and caution and acts done rashly and negligently. Every rash and neglitent act is a misadventure

and arises out either careless-ness or rashness. This is how the law wants every act to be done with due care and caution and in good faith. While

defining good faith Section 52 of Ranbir Penal Code contemplates that nothing is said to have been done in good faith unless same is done or

believed to have been done with due care and attention. 'Mistake' can be admitted as a defence only when it fulfills the following three conditions:--

(i) That the state of things believed to exist if true, would have justified the act done;

(ii) Mistake was reasonable;

(iii) That the mistake relates to a fact and not to law.

Neither of these conditions are satisfied by the facts of this case. Therefore, we are not in a position to admit 'mistake' to be a defence available for

the appellant.

The benefit of an exception cannot be granted at random. Once an exception or a right of private defence is claimed, it must be consistently

pleaded and then proved. The courts can believe a defence version only when there is a positive proof for that in the form of defence evidence or a

version which is built by the cross-examiner during his cross examination. The courts have three ways open in deciding a criminal case; one is to

believe the prosecution story and convict the accused; second to reject the prosecution story and accept the defence version and acquit the

accused. In between the two there can be a third course also where prosecution story is rendered doubtful either by leading defence against that or

by shaking its credibility by cross-examination. In this way also benefit of doubt goes to the accused and the prosecution case fails. In the instant

case we have, as repeatedly mentioned, above no defence available. Prosecution evidence remains unimpeached and during the course of

arguments defence advances alternative pleas, sometime of sudden and grave provocation and sometimes that of mistake. The Trial Court finding

is based upon this analogy.

We on an over all consideration of the evidence an material on record find ourselves in no position to differ with the findings of the Trial Court

and the same are, therefore, up-held. The conviction and sentenced is confirmed. The reference made by the Sessions Judge is accepted and

appeal accordingly dismissed.