- (1.) GAIJI accused has appealed from jail against his conviction under section 302 I. P. C. and the sentence of imprisonment for life awarded by the learned Sessions Judge of Ganganagar by his judgment dated 30-5-70. One Gurcharan Singh was also tried with Gaji and he too was convicted under section 302 I. P. C. and sentenced to imprisonment for life but it appears that he had not chosen to file any appeal.
(2.) THE prosecution story is a simple one. Smt. Shanti was a married woman of 21 or 22 years. Her husband Sohanlal and P. W. 1 Smt. Bashni, a relation of her's had come to Chak 6 CC, District Ganganagar, in search of work. THEy belonged to village Jaloki. THEy were living in tents and were working as labourers on the nereby fields. On the day of the incident i. e. 9. 4. 69 Smt. Shanti's husband Sonahlal had gone to work at some field, but Smt. Shanti was at home. During the day she had gone to cut and bring green fodder for her she-buffalo. She went to the field of one one Jogendra Singh. Nearby was the field of one Tara Singh on which sugarcane crop was standing and the two accused Gurucharan Singh aged 28 and Gaiji aged 18 were working on Tara Singh's field. THE prosecution has come forward with a story that the two accused had gone near Shanti to help her lift the head load and at that time their passions were aroused and accordingly they criminally assaulted her. THEy ravished her and as she was raising an alarm, they strangulated her. Shanti died on the spot. THEreafter her dead body Was dragged by the two accused and placed under a heap of wheat. When Shanti did not rum up to her temporary abode her father-in-law P. W. 5 Kishna, who had come to 6 CC to met his son, grew anxious. He was told by P. W. 1 Smt. Bishai that Shanti was seen cutting green fodder in Jogendra Singh's field. THEy all searched for here for some time, but could not find her. Ultimately P. W. 6 Gokal, who is a foot tracker, was apprised of it. Gokal went to the spot and saw that there were foot prints of two persons and marks of dragging of a body. THE two accused who were working at a distance of one Kila from the place where Shanti was seen cutting green fodder, were suspected by the villagers to have done something for the disappearance of Shanti. THE villagers caught hold of them, brought them to the house of Tara Singh and interrogated them. At that stage, however, P. W. 5 Kishna went to the police station Padampur and lodged information at 11 a. m. on 10 4 69. THE accused are said to have been impressed upon by P. W. 6 Gokal that he had identified their foot-prints and there was no use denying their part in the incident. At this the two accused are alleged to have made a clean breast of the whole thing. It is the prosecution case that the two accused stated before the villagers that they had gone to help Shanti to left her head-load and at that stage their passions were aroused and they could not control themselves. THEy, therefore, tried to have sexual intercourse with the woman and as she was raising an alarm, they gagged her and in this Shanti died. THEreafter they had removed the dead body and placed that in the heap of wheat. By that time P. W. 13 Shri Radha Krishan Assistant Sub-Inspector, had also arrived at the house of Tara Singh. THE accused then led Tara Singh and the villagers to the place where the dead body was concealed and accordingly Radha Krishan recovered the dead body. It was sent for post mortem examination and Dr. G. S. Bhati P. W. 2, performed the post mortem examination. Bhati found the following injuries on the dead body: " 1. Bruise with subcutaneous ecchymosis 60" x 1" oblique across the right shoulder. 2. Abrasion 5" x 1/6" on the left side of right thigh upper half part. 3. Abrasion 4"x 1"on the right trochanteric region. 4. Abrasion on 2-1/2" x 1/2" x 2-1/4" x 1/4" on the right iliac region lateral part. . " THE doctor also found a ligature mark around the neck, 1-1/2" in width, with the knot mark on the right side of (he neck at the level of mastoid process. THEre was an abrasion 3/4" x 1/4" and l/3" x 1/6" on the left side of the neck below the angle of mandible. Further there were small abrasions on the forearms. THE vagina was patulous admitting three fingers. THEre was no laceration of labia minora or majora. THEre was no matting of the public hair, In the opinion of Dr. Bhati, the cause of death was strangulation. Dr. Bhati further opined that nothing definite could be said about the commission of any rape on the woman. The learned Sessions Judge observed that there was no direct evidence against the accused persons in the case. He then analysed the evidence relating to the extra judicial confession and the circumstantial evidence. According to him. the evidence consisted of four pieces : (a) the deceased Shanti was last seen alive on the after-noon of 9. 4. 69 at a place which was near the place where the accused persons were working. This evidence consisted of P. W. 1 Smt. Bishni and P. W. 3 Narendra Singh, (b) the accused made an extra judicial confession before P. W. 6 Gokal, P. W. 10 Tara Singh and P. W. 11 Hari Ram, (c) the dead body of Shanti was recovered on the information furnished by the accused Gurcharan Singh from the heap of wheat on 10. 4. 69, (d) a 'chaddar' containing green grass was recovered on the information furnished by the accused appellant Gaiji from a heap of wheat on 10. 4. 69. The learned Judge carefully considered this evidence and he placed no reliance on items (c) and (d ). He, however, believed the evidence of P. W. 1 Bishni and P. W. 3 Narendra Singh as also the evidence of the three witnesses relating to the extra judicial confession. The learned Judge, however, came to the conclusion that there was no satisfactory evidence regarding the commission of rape or for the concealment of the dead body. We have been taken through this evidence by the learned counsel for the appellant and the learned Public Prosecutor. We may first consider the evidence regarding the extra-judicial confession P. W. 6. Gokal stated thus : " I contacted the accused persons there and told them that I had carefully seen the tracks and the foot-prints were theirs. Both the accused denied at first but later on stated that they should be pardoned and they had killed the woman by throttling. In the meantime the Subinspector came there. I am working as Khoji for the last 20 or 25 years " In cross-examination Gokal, however, admitted that he had never appeared as a track witness in any case in any court and it was for the first time that he was giving this evidence. P. W. 10 Tara Singh stated about the extra judicial confession in the following words : " We interrogated both the accused persons and they told us, that on being asked by Shanti to help her in lifting the bundle of grass when they began helping her, their passions arose The accused persons further told us that they could not check themselves and committed rape on her and when she raised an alarm, both of them throttled her. " In cross-examination he was confronted with his statement in the committing court Ex. P/3. The statement he made there was : *********** This earlier statement of the witness in the committing court does not mention the material fact that the passions of the accused were aroused and they could not control it and had accordingly committed rape on the woman. Even it does not state in so many words that Shanti was strangulated. The last statement is that of P. W. 11 Hari Ram. He deposed to the follow-ing effect : " The accused persons had told us there at Avtarsingh's house in front of other persons that on being asked by Mst. Shanti to help her in lifting grass when they began helping her so they had become impatient on seeing her and so after putting a cloth on her mouth dragger her in the wheat and committed rape on her there. As she did not cease raising alarm they as stated by the accused persons before us, throttled her down "
(3.) NOW we may briefly refer to the other piece of evidence furnished by P. W. 1 Smt. Bishni and P. W. 3 Narendra Singh. Narendra Singh stated that while he was returning to his house from his field Square No. 5, he happened to pass by the Square No. 9 of Tara Singh P. W. 10 and he had seen the two accused harvesting the Hadi crop in Tara Singh's field. He had further seen a Bagri woman cutting grass in the adjacent field at a distance of 15-20 'panvdas' from the place where Gurcharan Singh and Gaiji were working. On the next day the dead body of a woman was seen by the witness and he was able to identify that the dead body was of the woman he had seen the previous day working in the field at a distance of 15-20 'panvdas' from the accused. Narendra Singh, however, admits that the woman was putting on a veil and he was notable to see her face. He claims to have identified the dead body on account of the clothes that were worn by the woman. We may at once say that this testimony is wholly unsatisfactory. It is highly improbable that a parson who had not seen the face of another person will be a lie to identify him or her after his or her death simply by the clothes and that too when he had seen such clothes only in passing while on his way, from a distance of almost 70-80 feet. This evidence is, therefore, wholly unreliable. Smt. Bishni has no doubt stated that her relative Smt, Shanti was seen by her, working at a distance of 50 or 60 feet from 'he place where the accused were working, but we are afraid, this circumstance is, by no means, sufficient for connecting the accused with the crime. Now for basing a conviction on an extra judicial confession made by an accused we have to be satisfied that it is both true and voluntary. Now, in the first place, from the testimony of none other than PW. 6 Gokal it is evident that the two accused were denying the incident when they were first questioned by him and it was only when he taxed them that he already knew on the basis of their foot prints that they were the culprits that the accused came forward with the confession. Then the words in which the confession is said to have been made differ from witness to witness. We have already set out the version of each witness and that speaks for itself. Apart from every thing the way in which the events were narrated in the confession does not appeal to us. It is not easily conceivable that the passions of the two accused will be simultaneously aroused and they will be acting exactly alike. The witnesses do not tell us as to who was the first to commit, rape if at all, and at what stage the woman raised an alarm which led the accused to strangulate her. The story given in the confession is not only incomplete but it does not readily convince us. It could very well be that one of the two had played a prominent part. He may have been led to have his lust satisfied with the woman, she may have resisted and at that stage the one or both of the accused may have tried to overcome the resistance offered by the woman and to silence her and in doing so they may have over stepped and the woman bad died in the course of gagging her. But we are not satisfied beyond all manner of doubt that accused Gaiji who was the younger one of the two, Gurcharan Singh being 28 and Gaiji being 18, as already observed, would be the first to gratify his lust with the woman. It is quite likely that the elder one namely, Gurcharan Singh was the first who had good time with the woman and Gaiji, if at ail, may have played only a subordinate part to help Gurcharan Singh. We are only left to speculate what precise part has been played by Gaiji along with Gurcharn Singh, The accused, in our opinion, should be given the benefit of doubt in view of the type of evidence led in the case Apart from every thing there is no corroboration of the so-called extra judicial confession. The allegation regarding the commission of rape was negatived by the medical evidence and the evidence regarding the discovery of the dead body at the instance of Gurcharan Singh has already been discarded by the trial Judge. Over and above this the evidence of discovery of the dead body at the instance of Gurcharan Singh is not useable against Gaiji. The evidence regarding the recovery of the bundle of grass is innocuous and does not connect the accused with the commission of Shanti's murder. In view of what we have said above, we hereby allow this appeal, set aside the conviction and sentence of Gaiji appellant and hereby acquit him. He shall be released from jail forthwith, if not required in any other case. . ;