ARORA, J. - (1.) THIS appeal is directed against the judgment dated 19-1-88, passed by the Additional Sessions Judge No. 2, Hanumangarh (Camp Suratgarh), by which the learned Additional Sessions Judge convicted the accused-appellant for the offence under Section 302 I. P. C. and sentenced him to undergo imprisonment for life and a fine of Rs. 500/-and in default of payment of fine further to undergo three months' rigorous imprisonment.
(2.) APPELLANT Sher Singh was tried by the learned Additional Sessions Judge No. 2, Hanumangarh (Camp Suratgarh) for committing the murder of his mother-in-law Smt. Mehro Bai on 21. 7. 85 out- side village Siduwala Khiraliya in the escape land by inflicting injuries with a knife. The case of the prosecution is that on 21. 7. 85, accused Sher Singh, alongwith his mother-in-law Smt. Mehro Bai (aged about 65 years) and his daughter PW 1 Sukho Bai, left his village Dhandiya and board a bus from village Jalalabad and came to Bus Stand of Rajasthan Canal. After leaving the bus at 5. 00 p. m. , they proceeded towards village Khileriya, went to the house of PW 4 Govind Ram and took water. From there they proceeded towards village 4 SSPD where PW 2 Smt. Bakho Bai alongwith her husband PW 3 Tota Singh was living. When they reached near the escape, Sher Singh took-out knife and inflicted three/four injuries on the neck of Smt. Mehro Bai and committed her murder. Sukho Bai and Smt. Mehro Bai tried to resist whereupon the accused the reatened his daughter Sukho Bai that she should keep quiet otherwise she would also be done to death. After committing the murder of Mehro Bai, the accused concealed her deadbody in the bushes and left the place. The accused and Sukho Bai thereafter came to Sardargarh, boarded the train and reached to village 3 ND, where the mother of the accused and his other brothers were living and Sukho Bai was left there with her grand mother. PW 4 Pritam Singh had seen the accused, his mother- in-law Smt. Mehro Bai and his daughter Sukho Bai leaving theat Bus Stand of the Rajasthan Canal and he asked PW 2 Bakho Bai-the daughter of the deceased and the sister-in-law of the accused - that the accused, his daughter and mother-in-law had came there by a bus. Whether they had reached her house or not ? On 26. 7. 85, one skeleton was seen by PW 12 Het Ram in the escape which was being carried by the dogs, who reported the matter "to the Sarpanch and thereafter F. l. R. Ex. P. 14 was registered under Section 174 Cr. P. C. PW 13 Mohan Singh, S. H. O. registered the F. l. R. and handed over the investigation to P. W. 9 Modi Ram, who prepared the inquest report and recorded the statement of the witnesses. When PW 2 Smt. Bakho Bai came to know regarding recovery of the deadbody in the escape, she became suspicious that might be the deadbody of her mother. She, thereafter, alongwith her husband, went to village Dhandiya but neither her mother nor the accused was available there. Thereafter she searched for her mother but could not know the whereabouts of her. Then she, her husband and the Sarpanch of the village went to village 3 ND, where they found PW 1 Sukho Bai - the daughter of the accused in the house of her grand mother. On enquiry, Sukho Bai disclosed that her father (the accused) had committed the murder of her maternal grand mother Smt. Mehro Bai in the escape in the Rohi of village Sidhuwala Khileriya. The accused, also met them and on enquiry he made a disclosure that he committed the murder of his mother-in-law in the escape in the Rohi of village Sidhuwala Khileriya. PW 2 Bakho Bai, alongwith her husband PW 3 Tota Singh, thereafter went to Police Stateion Suratgarh and on 1-9-85, lodged the F. l. R. PW 13 Mohan Singh, S. H. O. , after registration of the report, conducted the investigation, arrested the accused and after completion of the investigation presented the challan. The prosecution, in support of its case, examined thirteen witnesses. The accused did not examine any witness in defence. The learned trial Court after trial convicted and sentenced the accused-appellant, as stated above. While convicting and sentencing the accused appellant the learned Additional Sessions Judge placed reliance over the evidence of PW 1 Sukho Bai, the extrajudicial confession made by the accused before the withnesses and the circumstance of last seen of the deceased in the company of the accused. The learned trial court also placed reliance over the recovery of the blood stained knife and the clothes of the deceased as well as the report of the Serologist, though, it was not exhibited in evidence nor was it put to the accused at the time of recording his statement under Section 313 Cr. P. C. The nature of the evidence, produced by the prosecution, consists of the statement of the eye witness PW 1 Sukho Bai -the daughter of the accused which is sought to be corroborated from the statement of PW 2 Smt. Bakho Bai, P. W. 3 Tota Singh and PW 6 Rulia Singh to whom PW 1 Sukho Bai narrated the incident and before whom the accused, also, made extra-judicial confession. This evidence is further sought to be corroborated from the statement of PW 4 Govind Ram, PW 5 Pritam Ram and PW 11 Diwan Singh who had last seen the deceased in the company of the accused. PW 8 Har Chand and PW 10 Het Ram are the two Motbir witness, in whose presence the deadbody and the clothes were recovered. The P. W. 7 Megh Singh Constable was posted at Police Station, Suratgarh, who fook the articles for F. S. L. examination to the State fprensic Science Laboratory Jaipur. PW 9 Modi Ram was the Assistant Sub-Inspector of Police, posted at the relevant time at Police Station, Suratgarh, who, in pursuance to the report Ex. P. 14 registered under Section 174 Cr. P. C. recovered the skeleton from the escape in the Rohi of village Sidhuwala Khileriya, recorded the statements of the witnesses, got the Post-mortem on the skeleton performed by Dr. Sahi Ram. The medical Officer Incharge, Government Hospital, Suratgarh, P. W. 12 Mr. Mange Ram was the Tehsildar (Revenue) Suratgarh, who held the identification of the clothes and PW 1 Sukho Bai and PW 2 Smt. Bakho Bai identified the clothes of the deceased. PW 13 Mohan Singh was the Station House Officer, Police Station, suratgarh, who conducted the investigation and presented the challan. The first question, which requires consideration in the present case, is: whether the skeleton, which was recovered from the escape of Rajasthan Canal in the Rohi of village Sidhuwala Khileriya was that of deceased Smt. Mehro Bai ? To prove this, the prosecution has placed reliance over the statement of PW 1 Sukho Bai, in whose presence the alleged murder was committed by the accused and the recovery of the clothes of the deceased from that place. As per the post-mortem report Ex. P. 13, an incomplete and decomposed deadbody of a female was found there. Most of the parts of the deadbody were missing. Lower jaw was absent, the teeth were absent in the upper jaw, right leg bone near the knee were absent, left leg bones were absent, right upper arm bone (humerus) and radius and ulna were present, rest was absent and the left humerus bone was present but other parts of the bones of left upper arm were absent. The medical officer opined that the deadbody was highly decomposed and incomplete and, therefore the the cause of death could not be assertained. The Post-mortem report further shows that the mouth, pharynx and Oesophagus, stomach and its contents, small intestines and large intestines alongwith their contents were, also not present. As per the post mortem report, the age of the female skeleton was between fifty to sixty years. Though the name of Dr. Sahi Ram, who conducted the post-mortem was given in the Calendar of Witnesses but he was not produced and was left over by the prosecution. The age of the female skeleton, which was recovered, has been given by the doctor in the post mortem, report as fifty to sixty years while as per the written report given by PW 2 Smt. Bakho Bai, the age of her mother was sixty five years and her own age was given as forty-five years. Later- on, PW 2 Smt. Bakho Bai tried to bring-down her own age from 45 to 40 years and that of her deceased mother from 65 to 60 years during her examination-in-chief in order to bring it in the line with the age given in the post-mortem report. The deadbody was neither complete nor fit for identification. No clothes were found on the deadbody. Even the skin was not present on the skeleton. It is not the case of the prosecution that the clothes were taken away from the deadbody and were put at a place. According to PW 9 Modi Ram, the clothes were recovered from a place at a distance of fifteen feet from the place where the skeleton was lying. These clothes appear to have been planted by the investigating officer Modi Ram A. S. I. with the connivance of Smt. Bakho Bai and Tota Singh because when the deadbody was in such a decomposed and incomplete postilion then the clothes would have been found in a torn condition if at all possible, on the corpse itself and not lying at a place. PW 2 Bakho Bai and PW 3 Tota Singh have admitted in their statement that they came to know regarding recovery of the deadbody from the escape as their village is situated only at a distance of two to three kilometres from the place where the skeleton was found, but as per the statement of Tota Singh they did not go to the place wherefrom the skeleton was recovered but instead they went to village Dhandiya while PW 2 Smt. Bakho Bai has stated that they went to see the deadbody and at that time the clothes were found on the corpse. At page 28 of the Paper Book it has been stated by her that: Yk'k ds ml le; dim+s igus gq,s Fks] pquuh flj ij im+h Fkha** The incomplete deadbody of a lady, aged about 50 to 60 years, was recovered from the escape where as per the admission of the prosecution witnesses, viz. , PW 8 Har Chand and PW 10 Het Ram, casually the deadbodies used to come in the escape through the Rajasthan Canal. The age of Mehro Bai (the deceased) was about 65 years as per PW 2 Smt. Bakho Bai, as disclosed in The F. I. R. the deadbody was not identifiable and therefore, it cannot be said with certainty that the skeleton was that of deceased Smt. Mehro Bai. Further, according to PW 1 Sukho Bai, the deceased, her father (the accused) and she left the village on Sunday near about Rakhi festival, but Rakhi festival fell on 30-8-85 and the Sunday near about that Rakhi festiwal were on 25-8-85 and 1-9-85, while the deadbody was recovered on 26-7-85, i. e. before nearly a month of Rakhi festival in the year 1985. According to PW 1 Sukho Bai, three/four injuries were inflicted by the accused with the knife on the neck of Mehro Bai but the deadbody, which was recovered, had no bony injury on any part of the body and even on the neck there was no injury as is clear from the post-mortem report. According to the evidence of PW 4 Govind Ram, the accused and the deceased came to his village one month before the time when the deadbody was found in the escape. This period comes near- about the marriage of the son of PW 2 Smt. Bakho Bai as she herself has admitted that the dceceased had come to her village to attend the marriage and at that time she gave the clothes to her mother.
(3.) THE investigating agency, in the present case, has tried to make the case that the deadbody recovered was that of deceased Smt. Mehro Bai by planting the clothes near the skeleton. It appears that the deadbody was of some woman which might have come in the escape through the Rajasthan Canal or it might be of some other lady, but it cannot be said with certainty that the deadbody was of Smt. Mehro Bai. The next question, which requires consideration, is: whether the evidence of PW 1 Sukho Bai connecting the accused-appellant with the crime, inspires confidence ? It is true that PW 1 Sukho Bai is the daughter of the accused and, therefore, normally she should not implicate her father falsely in the case. But looking to the age of this witness, which was about nine years at the time of the incident, her immature judgment, untrained power of observation and likelihood of her being easily influenced and turtored the evidence of this witness requires close scruitiny. Though as per Section 118 of the Indian Evidence Act, she is a competent witness,but the possibility of her being tutored or influenced by the person in whose company she was living, cannot be ruled out. As per the statement of PW 1 Sukho Bai as well as the statement of PW 1 Sukho Bai this witness is living with Smt. Bakho Bai and was with her before lodging the report. She is under the influence of her maternal-aunt (Mausi) and uncle (Mausa) and the possibility of coaching and tutoring her by. these witnesses cannot be ruled-out. As the children are highly immaginating and can be easily coached, tutored and influenced, therefore, the prudence requires that their evidence should be closely scrutinised. PW 1 Sukho Bai has stated that she was living with her maternal grand-mother deceased Mehro Bai, mother Smt. Jito Bai and father (the accused) in village Dhandhiya and her Mausi Smt. Bakhi Bai used to live in village 4-5hps. Near about Bakhi festival, on Sunday, in the morning, she, her father her Singh and maternal grand-mother Mehro Bai, left village Dhandhiya for Jalalabad, boarded the bus from Jalalabad and reached the Bus Stand of Rajasthan Canal and came down from the bus there. After coming Sown from the bus, they proceeded towards village Khileriya, by the bank of the Canal. In village Khileriya, they took water in the house of one Bagri. That man requested her father to stay at his house at it had become dark but her father told that they would reach the village and after saying so, they proceeded on their way. Her father was proceeding ahead while her maternal grand-mother was following her father and she was following her maternal grand- mother. In the way, her father suddenly turned behind, took-out the knife and inflicted three four injuries by the knife on the neck of her maternal grand-mother Mehro Bai. She started, weeping whereupon she was threatened by her father of dire consequences. Her maternal grand mother, also, cried but as no body was present near by so none could come there. Thereafter her father concealed the deadbody-in the bushes and they came to the village of her grand-mother (Daadi) at 3 ND by boarding the train from Sardargarh on the same day. At the time of death, her maternal grand-mother was wearing white Duppatta, plain shirt and printed Salwar. She was also, wearing red-coloured Jooti (Shoes ). In village 3-ND, her father and grand-mother were talking together and her grand-mother asked her father that Jito Bai and Bakho Bai should, also, be done to death otherwise they would implicate them. Some days thereafter, her maternal aunt (Mausi) Smt. Bakho Bai, Mausa Tota Singh and Sarpanch Rulia Singh came there and enquired about the whereabouts of her maternal grand-mother Mehro Bai and she disclosed them that her father (accused Sher Singh), after killing Mehro Bai, had thrown her deadbody in the bushes. Thereafter Tota Singh, Bakho Bai and Sarpanch Rulia Singh met her father and her father (accused Sher Singh) admitted his guilt before them by saying that he had committed the murder of Mehro Bai and he be excused. In cross-examination, this witness has admitted that the clothes, which have been produced in the Court are of black colour while her maternal grand mother was wearing the Salwar which had yellow prints and the Jootis were of black colour but the clothes and the shoes have not been identified by this witness though she has stated that she identified the clothes at the police Station. She has, also, admitted that these very clothes were there in the Police Station and no other Clothes were mixed with these clothes. In the cross-examination, she has,also, admitted that from her paternal grand-mother's house she was taken by Sarpanch Rulia Singh. She has, also admitted that she was taken to Police Station by Rulia Singh She the relations between her father and Mausa Tola Singh were not cordial, rather they were strained. In cross-examination, she has admitted that she narrated the incident in village 3-ND to all those persons who used to come to her house as well as to her fellow-girls, with whom she used to play. She has, also admitted that she has come to the Court four five times prior to that day. Though she has denied that she has admitted that she has been brought to the court by her Mausa and Mausi. She has been tutored by her Advocate, Mausa and Mausi but she has admitted that throwing of the deadbody of Mehro Bai in the bushes by her father, has not been mentioned in Ex. D. 4 She has, also admitted that Rulia Singh took her to, the house of Tota Singh and not the police. She has, also, admitted that the clothes of the deceased were shown to her at the police Station. She has, also, admitted that when she identified the clothes and the shoes of the deceased at the police Station no other shoes or the clothes were mixed with them. This witness has stated that they left the village on Sunday near about Rakhi festival. In the year 1985, Rakhi festival fell on 30-8-85, and the Sunday near about the Rakhi festival fell on 25. 8. 85 and 1. 8. 85 while the incomplete and deemposed skeleton of a lady was recorred on 26. 7. 85 i. e. i. e. one month before this date. Moreover, this witness has stated that her father inflicted three/four injuries by the knife on the neek of her maternal grand mother Mehro Bai but no bony injury was found on the deadbody recovered. Certain improvements have, also, been made by this witness in her statement before the Court. A reading of the statement of this witness clearly shows that she was under the influence of her maternal aunt PW 2 Smt. Bakho Bai and Mausa PW 3 Tota Singh and her statement appears to be the result of coaching and tutoring by these witnesses. Moreover, taking of this witness by the accused alongwith his mother-in-law (deceased Mehro Bai) when he had left the village to commit her murder, does not inspire confidence. The prosecution has produced PW 11 Diwan Singh, who has stated that this witness was taken for treatment but neither this witness has stated that she was unwell nor any other witness has stated so. Looking to the age of this witness and the fact that she was living with her maternal aunt Bakho Bai, we are of the opinion that the possibility of tutoring and coaching this witness by her Mausi and Mausa cannot be ruled-out and it will be unsafe to accept the testimony of this witness who Immediately after the occurrence did not narrate the incident to any other person - though she has stated that she narrated the incident to the visitors to her grand-mothers house and her girl friends but none has been produced to support her version. In the absence of any corroboration, the evidence of this witness cannot be relied-upon. ;