Roopi alias Roopa vs State of Haryana

Gokal Chand Mital, J.

This case relates to the murder of Smt. Bhagwati, whose deadbody was found lying burried inside the bara of Gurdip Singh of village Jalmana.

The case of the prosecution is that Smt. Bhagwanti was murdered by Roopi and Geju alias Gurmej Singh and that the crime was committed sometime between 19th and 21st December, 1986.

In this case, it may be noted at the very outset that there is no eyewitness to the occurrence and whole of the prosecution story rests on the circumstantial evidence.

The prosecution case in brief is that Smt. Bhagwanti widow of Ram Dhari, deceased was seen alive by the neighbours on December 19, 1986 and it was on 21st December, 1986, that Smt. Chameli wife of Har Narain of the same village told Chandgi, Bhagwanti''s husband''s brother that she had not been seen since day before yesterday. On this Chandgi Ram alongwith his brother Jog Dhian went to the haveli of Smt. Bhagwanti, the main gate of which was found locked from inside and they both entered the haveli by means of a ladder and there found the bedspread on the cot and a quilt and a lid of box containing Haldi but they did not find Smt. Bhagwanti.

When they failed to trace Smt. Bhagwanti. Chandgi Ram made a report to the Incharge of the Police Post, Jalmana at the bus stand on which the Assistant Sub Inspector made endorsemement and sent the same to the Police Station, Nissing, for registration of a case initially under Section 364, Indian Penal Code. Assistant Sub Inspector took into possession the bloodstained quilt. Subsequently, the case was registered under Section 302 alongwith other Sections of the Indian Penal Code.

Inspector Shadi Lal, who had been searching for Smt. Bhagwanti and had investigated the case, received a secret information on 25121986 about the whereabouts of Roopi and in presence of Madan Lal and Prem Parkash got recovered the dead body of the Smt. Bhagwanti. On the same day at 4.45 PM the postmortem on the dead body of Smt. Bhagwanti was conducted by Dr. A.M. Bajaj and two other doctors.

On 26121986 in pursuance of his disclosure statement, Roopi accused got recovered the ornaments allegedly worn by Smt. Bhagwanti Juti (shoe) of the right foot of Roopi which was allegedly kept buried in the heap of parali in front of the house was got recovered.

Next, there is the extrajudicial confession allegedly made by Geju accused to Lakha Singh, resident of village Uplana at his dera in which he admitted his complicity as well as that of Roopi accused for the murder of Smt. Bhagwanti. Geju is also alleged to have admitted that he had kept concealed his share of ornaments and cash in a box of brass in his Kotha meant for cattle underneath the earth.

The prosecution case mainly consists of the statements of Dr. Amar Bajaj, who had conducted the postmorterm examination, Chandgi Ram PW4 and Mohan Lal PW5, who have deposed about the circumstantial evidence of the case. Inspector Shadi Lal is the Investigating Officer, and has deposed about the various steps taken by him during investigation of the case including the recoveries effected by him. PW10 Lakha Singh is the witness, before whom extrajudicial confession was allegedly made by Geju accused. Rest of the witnesses are either recovery witnesses or formal.

When examined under Section 313 of the Code of Criminal Procedure, the accused denied the prosecution allegations, and branded this case to be false.

After considering the whole prosecution evidence, the learned trial Judge convicted both the accused under Section 302 read with Section 34, Indian Penal Code, and sentenced them to undergo rigorous imprisonment for life and to pay a fine of Rs. 500/ in default whereof they were to further undergo rigorous imprisonment for six months. Both of them were further convicted under Section 460, Indian Penal Code and were sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 500/ each in default of which they were to further undergo six months rigorous imprisonment. Under Section 392, Indian Penal Code, each of them was convicted and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 200/, in default whereof they were to undergo further rigorous imprisonment for four months. All the sentences were, however, ordered to run concurrently.

Against their convictions and sentences both the accused have preferred separate appeals. Crl. A. No 356DB of 1989, has been filed by Roopi accused and Geju accused has preferred Crl. A. No. 418DB of 1989. Since both the appeals have been directed against the common judgment and order of sentence of the learned trial Judge and have arisen out of the same occurrence. they are being disposed of by this common judgment.

The main stay of the prosecution in this case is the extrajudicial confession made by Geju accused to Lakha Singh PW 10, and the statement of Lala Ram PW14, who had allegedly last seen them together.

First turning to the extrajudicial confession alleged to have been made by Geju to Lakha Singh, it would indeed be straining one''s credibility to accept the veracity of this part of the prosecution case. As observed in Crl. A. No. 494DB of 1987 (Hari Kishan v. State of Haryana), 1990(1) RCR(Crl.) 303 (P&H). decided on August 10, 1989. "An extrajudicial confession is usually looked upon as a week type of evidence and therefore, whenever it is sought to be relied upon, the burden lies upon the prosecution to show its trustworthiness. In order to render such confession worthy of belief, regard must be had to :

(i) the person to whom it is made,

ii) the connection, if any, of the accused with him;

iii) the occasion or reason for the accused to go and make such a confession to him; and

iv) the circumstances in which it was made.

Besides all this, the extrajudicial confession must be considered in the over all context of the prosecution case and the evidence on record.

14A. reading of the statement of Lakha Singh PW 10 would show, that there was no previous connection between him and Geju. There was no relationship between them of such a type which could show that Geju was in such a position that he could repose confidence in him to confess to a heinous crime like the murder of Smt. Bhagwanti.

Lala Ram PW 14 is merely a chance witness and his evidence does not create such an impression of his having seen the accused last together. This witness had admitted in his crossexamination that he is shortsighted and happened to be there by chance and thus his statement about his having seen them last together cannot be believed.

The other circumstance, which creates doubt in our mind is the statement of Chandgi Ram PW4, husband''s brother of the deceased about the footprints found in the house. No evidence has been produced to show that the house in which footprints were found was a Kacha house. Rather he has stated that it was a pucca house. In that event, no footprints could appear and hence lifting of footprints on pucca floor does not appeal to us.

Kapur Chand, brother of the deceased, PW 13, who, as per the prosecution story came on the scene on 24121986 and got searched the house, did not give to the police any kind of details of the articles missing. It has come in evidence that three bangles and two earrings in one ear were found on the dead body of the deceased by the witnesses. If the accused had come for robbery, as has been tried to establish by the prosecution, before concealing the deadbody, they would have removed these ornaments also. from the dead body. From this part, it appears that none of the accused had participated in the incident.

As mentioned in the opening part of the judgment, this case is based only on circumstantial evidence and none has witnessed the occurrence. Further, there is an inordinate delay in lodging the report with the police and by then Chandgi Ram had sufficient time to name the accused in the case. It has come in the evidence of Chandgi Ram that he had come to know about the nonavailability of Bhagwanti on 22121986 but had not suspected anybody for the commission of her murder. So, how he suspected the accused about the offence, no plausible explanation has been given. Similarly, no explanation has been furnished about the delayed lodging of the FIR.

From the facts and circumstances of the case, it appears to us that the dead body of Bhagwanti had already been recovered by the police and it was only later on that the disclosure statement about the recovery of the deadbody had been attributed to Roopi accused.

The another significant circumstance in this case is that the investigation has revolved around the same set of persons, who were together at all the stages of the investigation. Both the disclosure statements allegedly made by the accused persons have been shown to have been made in the presence of Mohan Lal PW5, who is the son of Chandgi Ram PW4. This Chandgi Ram is related to Smt. Bhagwanti deceased (brother of Bhagwanti''s husband), and thus Madan Lal is the nephew of Bhagwanti. Chandgi Ram is the person, on whose statement the first information report was recorded and the deadbody of the deceased was allegedly recovered pursuant to the disclosure statement made in the presence of Madan Lal. Thus, it appear that on all the occasions at different stages the same set of persons were associated by the Investigating Agency.

From the above circumstances, it is clear that the evidence brought on record by the prosecution is not at all sufficient to sustain the conviction recorded by the learned Additional Sessions Judge.

For the reasons recorded above, while, allowing both the appeals, we acquit both the accused by giving them the benefit of a doubt. Both the accused are in Jail and are ordered to be released forthwith.