Kishan Lal vs State
1990 Latest Caselaw 409 Del

JUDGMENT

Jaspal Singh, J.

(1) "BEATUS illiquid proud negotiis......paterna rural babus exercet suit" (happy he who far, removed from business...tills with his own oxen the fields that were his father's), wrote Horace years before the Christ, and yet exodus to the towns continues unabated The lure is for an opening, for riches or for mere crumbs. Anant Ram was no exception. His relative Chotey Lal was already settled in the harried, harassed, half-crushed, cockroach of a city called Delhi, as a domestic help with one Pushp Nath Khosla. He too migrated to Delhi to live with Chotey Lal in the stairs of Khosla's house and to look out for a job He had hardly seen twelve or thirteen summers of his life How could he know the December of his life was just waiting to lower him into the icy grave of internal sleep. He was found dead on the morning of August 5, 1985, a victim of carnal intercourse and strangulation

(2) On August 6 the appellant was arrested for having committed the crime and after the trial he was found guilty, and was convicted and sentenced under Section 302 and Section 377 of the Indian Penal Code. Hence this appeal

(3) The prosecution has learned heavily on an extra Judicial confession allegedly made by the appellant on August 5, at about 6 a.m before Hari Ram (Public Witness -2) and on the statement of Som Nath (Public Witness -6) that the appellant had visited his house twice on the 4th, the first with the deceased which came to an end at about 8 30 p.m. and the second unaccompanied by any one and lasting from 9 30 p m. to 11 p m. As per Som Nath while leaving his house for the second time. the appellant had told him that he was going to the house of the deceased

(4) As would be borne out from above, the prosecution has tried to show through Som Nath that the appellant knew 'he deceased well and that after consuming liquor with .Som Nath he had left for the house of the deceased at about 11 p m. on the fateful night. The fact that the appellant Knew the deceased or that the had even dented together sometime before 8: 30 p.m has not succeeded in raising our eye brows. To us this leads the prosecution neither here nor there. Of course, the second limb of the evidence, if taken to be worthy of reliance, can be treated as an important circumstance However, unfortunately for the prosecution, we reject it for the simple reason that this part of his statement finds no mention in his statement recorded under Section 161 of the Code of Criminal Procedure. No more words need be wasted on him.

(5) The moment we think of the alleged extra-judicial confession, Hari Rani appears on the central-stage inviting our attention. He is a shopkeeper. His real sister is married to the brother of Chotey Lal. He is brief but incisive. 218 He tells us that on August 5, 1985 at about 6 a.m. the appellant came to him and as he appeared "very disturbed", he enquired the reason. The appellant, thereupon, told him that on August 4 he had gone to the house of the deceased after consuming liquor and after subjecting him to a forced carnal intercourse, had strangulated him to death as he had threatened to make public what had been done to him Hari Ram further tells us that he had advised the appellant to the Police station and confess, and that at 7 am. when Chotey Lal also visited him he told him about the visit of the appellant and his confession. Standing alone and judged by ilself, positively it is an impressive account. However, a critical analysis with the assistance of other attending evidence and circumstances, would share it into pieces. record to show that the appellant was ever friendly with him or that he had been even visiting his shop before August 5. There is thus no history of previous association between him and the appellant as may justify the inference that the appellant repose confidence in him. To us thus, it seems highly improbable that the appellant would rush to him to make a confession. We thus reject it as unworthy of belief. In support we seek to draw force from Rahim Beg v. State of U.P. And. while we are on Hari Ram, significantly he does not reproduce the exact words used by the appellant. It is his ipse dixit that is being deposed to And who is this Hari Ram ? He is the person whose real sister is married to the real brother of Chotey Lal. How could the appellant confide in such a person ? However, what we regard as the most objectionable part of this concocted evidence is as to how the Investigating Officer came to know that the appellant had made an extrajudicial confession before Hari Ram? Hari Ram himself did not go to the police station Chotey Lal does not say that he had told the Investigating Officer about confession before Hari Ram and till the recording of his statement (7.30 p m on the 5th) the appellant had also not been arrested. So the appellant was also not the source of any information to the Investigating Officer. What then led the Investigating Officer to Hari Ram ? We put the question during arguments and waited turn the answer in vain.

(7) There are many more questions which crave for answers. Pushpnath Khosla states that Chotey Lal had informed him about the death of deceased on the 5th at 6.30 am. If Chotey Lal had come to know of the extra-judicial confession of the appellant at 7 a.m. did not inform Khosla about it ? Why did not tell him that his brother had been murdered by someone? The evidence on the record shows that. inspite of Khosla's advise, Chotey Lal did not go to the police station. The question is why did he .not go to the police station, especially when as per Hari Ram, he knew who had committed the murder ? And above all, if Hari Ram had really told him about the extra-judicial confession, why has he made no mention of it in his statement in court also ? It is in evidence that the dead body of Anant Ram was sent for post-mortem at 5.45 p.m. on August 5 Along with was. sent an application (Ex Public Witness -17/E) turn preservation of the dead body. It was mentioned in the application that the deceased had been murdered "by some unknown person". What does it show? It shows that till 5.45 pm. Chotey Lal had not told the police about the extra-judicial confession or about appellant's roie. How does one explain this? What we feel is that neither any extra-judicial confession had been made before Hari Ram nor had he informed Chotey Lal about it.

(8) There is something more which point towards the innocence of the appellant. As per the prosecution, sample public hair of the appellant had been obtained and his underwear had also been taken into possession. Besides, he was subjected to medical examination as well. Significantly the doctor did not find any external injury over his private parts and as far as the report of the Central Forensic Science Laboratory is concerned no sean was detected on the underwear. With regard to the question of similarity of the public hair, no opinion was found possible. So here too the prosecution has drawn a blank. Of course, blood stains were found on the underwear of the appellant. The learned trial judge has blown this fact. In view of the report serologist that the blood found on the underwear was insufficient for grouping, we feel it is a case of much ado about nothing. be relied upon unless corroborated by some other credible evidence State of U.P. v. M.K. Anthony Air 1985 Sc 46 But the Court has also held that it has to be treated as a weak piece of evidence (Pyara Singh v. State of Punjab Air 1977 Sc 1974 and that before it is acted upon as a piece of reliable evidence it must pass the test of reproduction of exact words, the reason or motive for confession and person selected in whom confidence is reposed Heramba Brahma v. State of Assam Air Assam , Rahim Beg v State of U.P (supra), Kishore Chand. The State of Himachal Pradesh J.T. 1990 (3) Sc 662). The Supreme Court has thus shown a path, add the coarts, in arriving at their conclusions, have been treading the same. Via trita, via tuta And while treading this very Perth that we find is that here if an extra-judicial confession which passes not even a single test. The entire evidence is shaky. The attending circumstance further his it its credibility. The net result is that we find the edifice raised by the prosecution suffering from un cement table fissures rending it from the comic to the foundation.

(9) We accept the appeal, set aside the order of conviction and sentence, and acquit the appellant.