Matai Parshad vs State (Delhi Administration)
1988 Latest Caselaw 377 Del

JUDGMENT

Charanjit Talwar, J.

(1) The conviction of Matai Parshad, the appellant herein for an offence punishable under Section 302 of the Indian Penal Code is based solely on the extra-judicial confession, which is said to have been made by him to Public Witness .1, Malook Singh on 23rd July, 1983 at 9.00 P.M. The prosecution chose not to lead any evidence to corroborate the extrajudicial confession. The trial court vide its judgment of the 7th May, 1985 convicted the appellant and sentenced him to undergo imprisonment for life. The co-accused Ram Pal was, however, acquitted. By this appeal, the appellant is challenging the legality of the conviction and the sentence imposed on him.

(2) Malook Singh, Public Witness . 1 had a factory at J-6, Mukhram Garden, Chokbandi Road, Delhi. He was carrying on the business of fabricating iron grills, gates and windows. The appellant berein, Matai Parshad, was working as a Welder in that factory. Malook Singh owned two houses. He resided at C-53, Mukhram Garden, Chokhandi Road, Delhi. The other house bearing No. 283/229, Madiwali Gali, Vishnu Garden, Delhi was alleged to have been given by him on rent to his employee, the appellant herein for the purposes of residence. The murder for which the appellant and Ram Pal were charged, according to the prosecution case, took place in that house. There is no eye-witness to the occurrence. It is only in the extra-judicial confession, which Matai Parshad is said to have made, that the manner in which the murder of Bal Chand took place, is spelled out. According, to Public Witness . 1, Malook Singh, the appellant herein seemed very perplexed at about 9 p.m. on 23rd July, 1983, which was a Saturday. In his capacity as an employer, he asked him the reason. We quote from 'the testimony of Malook Singh to highlight the reply which has been construed as an extra-judicial confession : "The accused Matai Parshad told me that he Along with his companion had killed Bal Chand. He also told me that the body of deceased Bal Chand is lying in accused Matai Parshad's house No. 283/229, Madiwali Gali, Vishnu Garden, Delhi which house belongs to him and I bad given the same on rent to accused Matai Parshad". According to Public Witness . 1, earlier on that day, i.e., on 23rd July, 1983, Matai Parshad had worked in his factory from 8 a.m. or 8.30 a.m. to 2 p.m. and thereafter left the premises. The appellant came to the witness's house at 6 p.m. with a large trunk and then again at 7.30 p.m. or 8 p.m. with that very trunk. It was the third time at 9 p.m. when he brought that big trunk to Malook Singh's house that the witness had to rebuke him for bringing that trunk again and again to his house. It appears from the first information report that it was in that big trunk, the body of Bal Chand had to be disposed of by the appellant herein. However, in his testimony, Malook Singh has not affirmed that fact. In any case the prosecution has not been able to explain as to why and for what purpose did the appellant bring the empty trunk to Malook Singh's house when he could have straight away taken it to the other house where the body was lying. We would advert to this aspect later.

(3) After hearing the extra-judicial confession, Malook Singh went to his brother's house at Uttam Nagar but before leaving, he told the accused to remain in his house, i.e., the house at Mukhram Garden, Chokbandi Road, Delhi and not to worry. After reaching Uttam Nagar, Malook Singh narrated the incident as disclosed to him by Matai Parshad, to his brother, who called a neighbour Karnail Singh for advice. It was on the advice of Karnail Singh that it was decided to contact a Head Constable of Special Staff, Delhi Police at Tagore Garden. Thereafter, Rohtas Singh, Head Constable, who was known to Karnail Singh was contacted, who in turn informed the Police Station, Tilak Nagar on telephone that a dead body was lying in Sardar Malook Singh's house in Madiwali Gali, Vishnu Garden, Delhi. This report, which has been exhibited as Public Witness , 14/A, was 198 registered in the Daily Diary at item No. 2A at 12.30 midnight, i.e., morning of 24th July, 1983. The full report reads : "Duty Officer, Receipt of Information on telephone and dispatch thereof. Time: 12.30 (midnight) At the time, Rohtas Singh, Constable No. 170/W, gave information on telephone, "A dead body is lying in Sardar Malook Singh's house in Madiwali Gali, Vishnu Garden and some officer may be sent to the place of occurrence". On receipt of telephonic information, report was registered in the roznamcha (daily diary). A copy thereof was prepared separately and handed over to Sh. Sumer Singh, S.I. who along with Constable Ram Diya No. 359/W, and Constable Jagbir Singh No. 705/W has left to the place of occurrence, for taking necessary action". Scribed by : HC/DO" It was on receipt of this information that Sumer Singh, S.I. of Police Station Tilak Nagar was dispatched to Madiwali Gali, Vishnu Garden, Delhi, the other house of Public Witness .1, Malook Singh. The SI. recorded the statement of Malook Singh (Ex. Public Witness . 1/A) and dispatched it to the police station at 2.05 a.m. on 24th July, 1983. On the basis of that statement, formal F.I.R. was registered at the Police Station at 2.20 a.m. on that very night.

(4) The facts of the case have been noticed in detail by the trial court and no useful purpose would be served by repeating them again. As we have noticed, it is the extra-judicial confession alone (quoted above) which has been made the basis of conviction for the offence of murder. It is well settled that to act on that extra-judicial confession, two rules of caution have to be kept in view. The said rules have been noticed in Wakil Nayak v. State of Bihar, , wherein it was held : "Before the court will act on extra-judicial confession the circumstances under which the confession is made, the manner in which it is made, the persons to whom it is made will be considered along with two rules of caution. First, whether the evidence of confession is reliable and secondly whether it finds corroboration. The High Court believed the evidence as to confession and found it free from infirmity. The extra-judicial confession is corroborated by the evidence of the cowherd boy Rakhal Rabidas that the appellant had a tangi in his hand and further that the appellant accompanied by Kamila went to the forest and showed the dead bodies and the appellant went with the mother Kamila to the police station and produced the blood-stained tangi". Thus while assessing the prosecution evidence in this case, we have to sec whether Malook Singh is a reliable witness and if so, whether his testimony has been corroborated. At this stage, we may note that the learned trial court has pointed out a couple of discrepancies in the statement of Malook 199 Singh. According to Malook Singh, after talking with his brother Amar Singh at Uttam Nagar, he returned to his house at Mukhram Garden, Chokhandi Road, Delhi. All the other witnesses do not support this part of his statement. According to the version of Head Constable Rohtas Singh, Malook Singh had come to his office situated in police station Tagore Garden along with Karnail Singh and Amar Singh. Karnail Singh and Amar Singh also stated that after informing the police station Tilak Nagar about the dead body of Bal Chand, he Along with Malook Singh and other persons had gone to Malook Singh's house and thereafter to the other house situated at Madiwali Gali, Vishnu Garden, Delhi.

(5) Mr. Vohra, learned counsel for the appellant has, however, pointed out to us that in all probability the appellant Matai Parshad was not present in his house, i.e., House No. 283/229, Madiwali Gali, Vishnu Garden, Delhi at the time when the murder is alleged to have taken place. For this submission, he stated that it be assumed for the sake of arguments that the said house was in the occupation of his client. This submission needs consideration. According to Public Witness .15, Dr.L.T. Ramani, Bal Chand had died due to suffocation caused by gagging. Post mortem was conducted on 24th July, 1983 at about 1. 30 p.m. The time since death was found to be about 28 hours. In cross-examination, the Doctor admitted that the time since death in this case could be 25 to 27 hours and not exactly 28 hours. Thus the time of death as per the Doctor's expert opinion could havebeenbetween9.30a.m to 11.30am. on 23rd July, 1983. The affirmative evidence of Public Witness .1 Malook Singh is that the appellant was in his factory on that day from 8 a.m. or 8.30 a.m. to 2 p.m. We note that in examination-in-chief, this witness bad stated that the appellant left at 2 p.m. ; in cross-examination he admitted that he had reached the factory at about 8 or 8.30 a.m It is thus doubtful to hold that the appellant herein was in House No. 283/229, Madi Wali Gali, Vishnu Garden, Delhi at about the time when the crime was committed. However, it has not been clearly established by the prosecution that that house was in exclusive possession of the appellant herein. The brother-in-law of Malook Singh, Iqbal Singh has admitted that whenever required Malook Singh used to take keys from Matai Parshad to go to that house. It appears from the tenor of crossexamination that Matai Parshad used to stay in that house off and on but not always. As per the statement under Section 313 of the Code of Criminal Procedure, the appellant was residing with Malook Singh and not separately.

(6) As we have noticed from the evidence on record, it cannot be held positively that the said house was in exclusive possession of the appellant or that he used to go to that house everyday. We also find that the prosecution has not established beyond doubt that on that day it was Matai Parshad, the appellant herein, who had opened the door of that house after he had been brought from the residence of Malook Singh. The evidence on this aspect is contradictory. If the appellant was living in that house, he would have taken the trunk, which according to the prosecution was brought by his co-accused and was handed over to him for the purpose of disposing of the body, to that house and not try repeatedly to bring it to the house where Malook Singh was residing.

(7) Further, the reasons, if any, which prompted Malook Singh to ensure that the said big trunk be removed by the appellant from his residence to the other house where the murder had taken place earlier in the day, have not been disclosed. According to Malook Singh, on his return from Uttam Nagar, he asked the appellant herein to carry this trunk. Thus the trunk was recovered from the other house by the Police.

(8) The episode of the trunk being taken to Malook Singh's house repeatedly by the appellant herein and thereafter the insistence of Malook Singh that this trunk be taken to the other house, remains a mystery. Another fact which leads us to bold that Malook Singh's statement cannot be accepted at its face value, is that according to him his statement. Ex. P.W.1/A (basis of the F.I.R) was recorded by the Investigating Officer in the Police Station and not at the spot. He admitted that he was taken from the place of occurrence to the Police Station where his statement was recorded in the room of the S.H.O. The facts brought on record do suggest that the F.I.R. was got recorded after deliberations in the Police Station.

(9) In view of the discrepancies which have been noticed by the trial court and the infirmities which we have pointed out above, we hold that the testimony of Malook Singh is not very reliable. At any rate it is not corroborated.

(10) For the aforesaid reasons, we allow the appeal and set aside the conviction and sentence imposed on the appellant/accused under Section 302 of the Indian Penal Code. The appellant is acquitted.