- (1.) THIS is an appeal from Jail against the judgment dated 1/4/1981, passed by the learned Addl. Sessions Judge, No. 1, Baran convicting the accused-appellant under Sec. 302, IPC and sentencing him to imprisonment for life and under Sections 25 and 27 of the Arms Act for two years and a fine of Rs. 100/- and in default of payment of fine additional rigorous imprisonment for one month on each count THIS appeal has been filed through jail and Shri S. K. Gupta was appointed amicus curiae on behalf of the appellant.
(2.) ACCORDING to the prosecution, Ghasi Lal was shot dead by a gun in the night intervening 21st and 22nd April, 1980 and a report was lodged in the police on 22/4/1980 by Madan Lal, co-accused, in which it was mentioned that while Bhanwar Lal was sleeping in his room some one knocked at his door and when Ghashi Lal followed the accused somebody fired at him and he collapsed. After police investigation a challan was filed against the present appellant as well as Madan Lal who had filed the FIR. The accused was committed to Sessions and after trial the accused-appellant was convicted as aforesaid, while Madan Lal accused was acquitted. We have heard Shri S. K. Gupta, Amicus Curiae, as also the learned Public Prosecutor and have also perused the record of the case and have gone through the judgment of the learned Addl. Sessions Judge. The main contention of Shri Gupta is that it is a case in which the prosecution has failed to adduce any evidence with regard to motive in the crime. The co-accused has been acquitted and there is no e\e-witness and the conviction is based only on circumstantial evidence and extra-judicial confession. The Lower Court has relied on the circumstance that the accused was seen with a gun in the night of the incident and at the instance of the accused-appellant a gun was recovered end there is no other circumstance except extrajudicial confession. He has argued that the two circumstances relied on by the learned Addl. Sessions Judge are of no avail. The gun has not been connected with the crime. There is no evidence that the gun which was seen with the present accused-appellant is the same gun which has been recovered at his instance, nor there is any evidence to show that the gun which has been recovered at the instance of the accused was used in the crime. Neither there is any ballistic expert opinion, nor there is any recovery of cartridges or pallets to connect the gun with the crime. Therefore, these two circumstances, even if held to be proved, are of no avail and cannot be considered or taken into account for convicting the accused-appellant. He has further submitted that the convicted cannot be based solely on extra-judicial confession as the evidence of extra-judicial confession, in the very nature of things, is a very weak piece of evidence and, since there are discrepancies and contradictions in the evidence of the prosecution witnesses to prove extra-judicial confession, it cannot form the basis of conviction. He has placed reliance on State of Punjab v. Bajan Singh (1), State of M. P. v. Davaram (2) and Lakhanpal vs. State of Madhya Pradesh (3 ). On the other hand, Shri Ajai Purohit, learned Public Prosecutor, has submitted that there is no bar in convicting the accused on extra-judicial confession even if it has not been corroborated and has placed reliance on Haghar Singh V. State of Punjab (4), which is based on Rao Shiv Bahadur Singh vs. State of Vindhya Pradesh (5), Piara Singh vs. State of Punjab (6) and Ram Singh v. State of Uttar Pradesh (7) and has submitted that law does not require that the evidence of extra judicial confession should in all cases be corroborated and conviction can be based solely on extra-judicial confession. We have carefully considered the arguments of the learned counsel for the parties and have also gone through the various judgments relied on by either party. It is true that there is no bar convicting the accused-appellant on the basis of extra-judicial confession. But as a prudent caution it has always been insisted that there should be some corroboration from other circumstances. In all the cases cited by the learned counsel for the State the conviction of the appellant has been upheld on the basis of extra-judicial confession being corroborated by other circumstantial circumstances. There is no doubt that the extra-judicial confession is a very weak type of evidence and, therefore, it is unsafe to convict the accused appellant solely on the basis of extra-judicial confession without corroboration unless the evidence of extra-judicial confession is so clinching and trustworthy that full reliance can be placed on such evidence.
(3.) WE have carefully gone through the evidence of PW/3 Harlal, PW. 5 Bhanwar Lal, PW/6 Gulab Chand, PW/10 Hari Ram, PW/9 Prabhu Lal, PW /11 Janki Lal and PW/12 Shankar Lal. PW/3 Har Lal in his statement in the Court has stated that when in the next morning of the incident Madan son of Sukha Ram, Gulab Chand, Ishar Lal and Bhanwar Lal brought accused Mohan Lal. Then Mohan Lal had said that he had fired the gun at Ghasi at the instance of accused Madan and at that time Janki Lal Lodha, Daulat Ram, Ram Pratap, Mathuralal and several other persons were present. PW/5 Bhanwar Lal has stated that accused Mohan Lal had told the villagers that he and Madan Lal had done this case (maine aur Madan ne yeh kes kiya hai) He has further emphasised that he said only this much PW/6 Gulabchand has stated that when accused Mohan La! was asked that he had a gun with him and whether he has done this act ? Thereupon accused Mohan Lal had told that he had fired at Ghasi by a gun at instance of Mohan Lal. PW/9 is Prabhu Lal, father of the deceased Ghasi Lal and he has not deposed anything about the extra-judicial confession. PW/10 Hari Ram said that the people had caught hold of accused Mohan Lal and on the asking of Patel he has told that he had fired a gun at the instance of Madan Lal. In the cross-examination, he has clarified that he himself did not hear what accused Mohan had told, but he was told by Patel that accused Mohan has said that he had fired at Ghasi at the instance of Madan and at that time accused Mohan Lal was not present. Similarly, PW/11 Janki Lal stated that when he was passing through the village he had seen Mohan Lal accused and he told that he had fired at Ghasi by the gun at the instance of Madan. Mohan was telling this to Patel. Gulab Chand and Bhanwarlal. In the cross-examination, he has clarified that he had no talks with accused Mohan and he was told by Gulab Chand Patel that Mohan accused had said so. PW/12 Shankar Lal has also told that Mohan accused has told that he had fired at Ghasi by a gun at the instance of Madan. This he had told on the asking of Gulab Chand. In cross-examination he has said that he was standing at a distance of about 100 paces from the place and he did not hear what Mohan was saying. But Patel Gulab Chand had told that Mohan was saying that he had fired at Ghasi by the gun at the instance of Mohan. This is in all the whole prosecution evidence adduced and relied on to prove the extrajudicial confession of accused Mohan Lal. Pw/13 Daulat Ram was also examined to prove extra-judicial confession, but he has not supported the prosecution story. Pws 10, 11 and 12 have admitted in cross-examination that they personally did not hear the actual words uttered by accused Mohan Lal and they have deposed only because they were told by others that accused Modan Lal had said so. The evidence of Pw/3 and Pw/6 is also contradictory and there are several discrepancies. Pw/3 and Pw/6 have deposed that Mohan Lal has said that he had fired the gun at Ghasi at the instance of accused Mohan, whereas Pw/5 has deposed that accused Mohan Lal had told the villagers that he and Madan Lal had done this case. Another important contradiction in the evidence of Pw/3 and Pw/6 on the one hand and Pw/6 on the other. Pw/3 and Pw/6 have deposed that the extra-judicial confession was made at the noon time, i. e. near about 12 and 1 p. m. , whereas Pw/5 has deposed that the extra-judicial confession was made in the morning at 8 to 9 a. m. The evidence of Pw/3 and Pw/6 is not corroborated, but on the other hand, contradictory and discrepant. Merely because there is no evidence of enmity or ill-will against the prosecution witnesses and against the accused-appellant their evidence does not become reliable and convincing. The matter might have been different if their evidence was consistent and convincing. Extra-judicial confession is a very weak type of evidence and the words uttered by the persons are very important. In the face of this type of discrepancies and contradictions it is not safe to rely on this type of extra-judicial confession. ;