Kanwaljit Singh Ahluwalia, J.@mdashRandheer Singh S/o. Fateh Singh was employed by DOC company as a Driver on oil tanker bearing registration No. HR-46A-9950. Satyawan, co-accused of the appellant, was working as a Cleaner of the truck driven by Randheer Singh deceased. It has come in the evidence of Guljar Singh (P.W. 14) that on 14.11.2004 Randheer Singh had left with the tanker alongwith Cleaner for Gujarat. At that time, Randheer Singh was entrusted Rs. 23,000/- towards expenses. On 22.11.2004 P.W. 14 Guljar Singh received information that the tanker was lying parked unattended on Jaipur Highway road near Dashmesh Hotel. The tanker could not be moved as its engine pipe was broken. The company had sent another tanker on 27.11.2004 from Delhi for transfer of the oil stored in the tanker. P.W. 14 Guljar Singh further stated that father of Randheer Singh came and enquired about the whereabouts of his son, driver of the tanker. He further disclosed that Satyawan Cleaner of the tanker is roaming freely in the village. Purushottam Tank (P.W. 1) submitted a written complaint Ex. P/1 to the Station House Officer, Police Station Akola on 29.11.2004 at 2.00 p.m. that he had found an unidentified dead body in the bushes on the road going from Bhopalsagar to Udaipur near Hotel of Santoshnath. In the meanwhile, Fateh Singh (P.W. 9), father of deceased Randheer Singh, had submitted a written complaint Ex. P/5 to the Station House Officer, Police Station Akola stating therein that his son had left with truck to Gujarat and he had received his telephonic call on 19.11.2004 at 6.00 p.m. Thereafter he had heard nothing regarding the whereabouts of his son. He further stated that Satyawan, Cleaner of the truck, and present appellant Rajveer had accompanied Randheer Singh. This witness further stated that on 23.11.2004 Rajveer came to the village and disclosed that Randheer Singh had alighted at Udaipur and he alongwith Satyawan had parked the vehicle at Jaipur-Shahpura Road near a hotel. Fateh Singh alongwith his son Jagat Singh (P.W. 12), Surendra Singh (P.W. 11) and Harkesh (P.W. 10) had requested the present appellant to accompany them to the place where the truck was parked. It was further stated by them that the present appellant told them that he will return after changing clothes and thereafter he evaded them. This witness further disclosed that on 25.11.2004 the present appellant alongwith Satyawan made extra judicial confession that they had murdered Randheer Singh and thrown his dead body in the bushes. According to this witness after having made the extra judicial confession, the present appellant alongwith Satyawan accompanied Fateh Singh (P.W. 9), Harkesh (P.W. 10), Surendra Singh (P.W. 11) and Jagat Singh (P.W. 12), however, after taking meal in the night in darkness they escaped and the dead body was found by the witness on 30.11.2004 at 09.30 a.m. P.W. 9 further stated that the deceased had also taken 35000/- for purchase of motorcycle and in greed to usurp Rs. 58000/- which were in possession of the deceased, the appellant alongwith Satyawan had committed the murder.
2. After recovery of the dead body and registration of FIR, investigation was carried and the investigating agency had sent present appellant Rajveer @ Bawaji and Satyawan to face trial. The appellant alongwith his co-accused Satyawan was charged for the offences punishable u/s 302, 201 and 394 IPC. The trial court convicted the appellant for the offences punishable u/s 302 and 201 IPC and sentenced as under:-
Section 302 IPC: Life term imprisonment alongwith a fine of Rs. 5000/- and in default of payment of fine, further to undergo three months'' rigorous imprisonment. Section 201 IPC: To undergo three years'' rigorous imprisonment alongwith a fine of Rs. 3000/- and in default of payment of fine, further to undergo three months'' rigorous imprisonment.
However, the appellant alongwith his co-accused was acquitted from the charges punishable u/s 394 and 397 as the prosecution could not prove these charges.
3. Appellant Rajveer @ Bawaji aggrieved against the conviction and the sentence awarded has filed the present appeal through jail to assail the impugned judgment of conviction and order of sentence.
4. With the aid of Mr. K.R. Bhati, learned counsel for the appellant and Mr. K.R. Bishnoi, learned Public Prosecutor, we have perused the evidence.
5. The prosecution has examined 30 witnesses. The prosecution evidence can be broadly divided into categories of: (a) Medical evidence (b) Evidence regarding identification of the dead body (c) Evidence of extra judicial confession (d) Evidence of recovery and (e) Evidence of witnesses who participated in the investigation.
6. As stated earlier, P.W. 1 Purushottam Tank was Sarpanch of Gram Panchayat Bhopalsagar. He upon receipt of the information that an unidentified dead body was lying in the bushes near the hotel of Santoshnath had gone to the spot and relayed the information to the police and had presented a written complaint Ex. P/1. P.W. 3 Ganesh Lal, P.W. 4 Shiv Narayan Gurjar and P.W. 6 Kamlesh had participated in the inquest proceedings regarding recovery of the dead body.
7. Dr. Subhash Jain (P.W. 7), Dr. C.P. Agarwal (P.W. 8) and Dr. Ashish (P.W. 21), being members of the medical board, had conducted autopsy on the dead body. P.W. 7 Dr. Subhash Jain had stated that they conducted autopsy on the dead body on 30.11.2004 at about 10.00 a.m. The dead body was decomposed, the skin was peeling off and hair could be easily removed. There was a ligature mark of belt on the neck. The body was swollen and maggots were present. The dead body had seven injuries. Injury No. 2, 4, 6 and 7 were grievous in nature. The cause of death was asphyxia, injury to brain and strangulation. The duration between death and postmortem was two to five days.
8. The dead body had been identified by P.W. 9 Fateh Singh, father of the deceased and P.W. 12 Jagat Singh, brother of the deceased. Though in the court, Fateh Singh (P.W. 9) had not repeated the exact words of extra judicial confession, but P.W. 10 Harkesh, P.W. 11 Surendra Singh and P.W. 12 Jagat Singh have specifically stated that on 25.11.2004, extra judicial confession was made by appellant Rajveer @ Bawaji and Satywan. Harkesh (P.W. 10) stated that both the accused jointly stated that due to greed of money, they had given injury on the head of Randheer Singh when he was sleeping and thereafter had strangulated him with the belt and thereafter had thrown his dead body alongwith blanket and quilt in the bushes. According to P.W. 11 Surendra Singh, confession was made by Satyawan in the presence of Rajveer. P.W. 12 Jagat Singh, brother of the deceased, had stated in the court that both the accused made extra judicial confession in chorus form.
9. Having considered the counsel for the parties, we are of the view that the evidence of extra judicial confession is improbable, unnatural and unconvincing. As per P.W. 14 Guljar Singh, deceased had left with truck alongwith Cleaner Satywan on 14.11.2004. Fateh Singh (P.W. 9) had last received a telephonic call from deceased Randheer Singh on 19.11.2004. According to Fateh Singh (P.W. 9), Surendra Singh (P.W. 11) and Jagat Singh (P.W. 12), on 23.11.2004 they had made enquiries from Rajveer Singh regarding the whereabouts of Randheer Singh. At that time, Rajveer Singh had told them Randheer Singh alighted near Udaipur. It is further case of these witnesses that thereafter the present appellant alongwith Satyawan on 25.11.2004 had made extra judicial confession giving details that Randheer Singh was murdered. From 25.11.2004 till 30.11.2004 when the dead body was found by these witnesses, no effort was made by them to relay information to the police. The conduct of the witnesses not to inform the police having learnt on 25.11.2004 that Randheer Singh had been murdered by Rajveer Singh and Satyawan cannot be commended. It has come in evidence of P.W. 14 Guljar Singh that information was received by him on 22.11.2004 that truck had been parked unattended and the driver was missing. This witness has further stated that father of the deceased had approached him and enquired about the whereabouts of his son and had also made a grievance that Cleaner of the truck Satyawan was roaming freely in the village. Had accused made an extra judicial confession on 25.11.2004, there was no need for Fateh Singh to enquire from Guljar Singh employer of the deceased. Furthermore on 23.11.2004, Fateh Singh (P.W. 9), father of the deceased, Jagat Singh (P.W. 12), brother of the deceased, Harkesh (P.W. 10) and Surendra Singh (P.W. 11) were suspecting the present appellant to be accused. According to them, on 23.11.2004, the present appellant told the witnesses that he would come after changing the clothes and had not returned. If that was so, then there was no occasion or reason for the present appellant to appear before these witnesses and blurt out his guilt and make extra judicial confession. What prompted the present appellant to make the extra judicial confession on 25.11.2004 the prosecution has failed to explain. We cannot become oblivious of the fact that extra judicial confession is a weak type of evidence. Furthermore, there are material discrepancies in the testimony of witnesses Fateh Singh (P.W. 9), Harkesh (P.W. 10), Surendra Singh (P.W. 11) and Jagat Singh (P.W. 12) regarding making of the extra-judicial confession, therefore, in our opinion, it is not safe to rely upon extra judicial confession made by the accused.
10. Once we rule out extra-judicial confession from our consideration, the only evidence which remains with the prosecution is the evidence of recoveries. The recovery in turn is not sufficient evidence to form a chain of circumstances to come at the conclusion that nobody else except the appellant had committed the offence, therefore, in our opinion, it will not be safe for us to uphold the conviction and sentence of the appellant. Consequently, we extend the benefit of doubt to the appellant and set aside the judgment of conviction and order of sentence by acquitting the appellant of the charges. As a result thereof, the present appeal stands allowed.
