IMPORTANT POINTS
Court should look for corroboration of extra judicial confession.
If two views are possible, accused is entitled to benefit of the one favourable to him.

JUDGMENT :

Rastogi, J.

Both the appellants, Babu Lal and Devi Lal are aggrieved by the affirmation of their conviction under Section 302 and other with the aid of Section 120-B of the Indian Penal Code and sentenced to life imprisonment under the impugned Judgment dated 30th January, 2009, seek this Court’s intervention.

2. Brief facts of the case, as per prosecution, post-incident, are that on 8th February 1999 at 7.15 p.m. complainant Vijay Singh (PW-2) submitted a written report (Exhibit P1) at Police Station, Nimbahera, informing that he and his cousin brother Dharam Chand (deceased) were living with their families in separate houses in village Binota. In the evening of 7th February, 1999 at 6.00 p.m., daughter of the deceased Dharam Chand informed him on telephone that her father, who had gone to Bhagwanpura on Motor Cycle, had not returned. The complainant, along with other neighbours, went to search deceased Dharam Chand on 8th February, 1999 and at village Bhagwanpura, outside the godown of brother deceased Dharam Chand, found his motorcycle but his whereabouts were not made known. On his written complaint, a missing person report (Exh. P-75) was lodged. The Investigating Officer, in the course of enquiry, made from Shambhu Singh (PW-3), revealed that on 7th February, 1999, accused Babu Lal had hired his jeep. Babu Lal and his labourers Logar and Bagdiram carried drum which contained wheat. The drum was alighted from the jeep on way near field of Logar, making Shambhu Singh to sit at the house of Logar and on excuse of responding to call of nature, Babu Lal, Logar and Bagdiram got away for about 1.30 hours. When they came back, the drum was not there. On inquiry by Shambhu Singh (PW-3), Babu Lal told that Logar and Bagdiram shall deliver it afterwards. On further inquiry, it revealed that on 5th February, 1999, hot altercations had taken place between Babu Lal and deceased Dharam Chand for some money transactions and on carrying such drum, Babu Lal caused some suspicion. During the course of search, it was found that from a dry well, bad odour was emitting. When freshly cut branches and leaves of the teak tree were removed, the dead body of the deceased Dharam Chand was found. On the basis of Exhibit P73, formal FIR came to be registered on 11th February, 1999 at Police Station, Nimbahera.

3. After the investigation, chargesheet was filed against the four accused persons namely, Babu Lal, Devi Lal, Keshu Ram @ Panchiya Meena and Logar Rawat. All the four faced trial. The learned trial Judge by its impugned judgment acquitted the accused persons Keshu Ram @ Panchiya Meena and Logar Rawat holding accused Babu Lal guilty for the offence under Section 302 read with Section 34 and 120B IPC and appellant Devi Lal for the offence of Section 120B IPC, of hatching a conspiracy to commit murder.

4. The appeals preferred by both the appellants before the High Court came to be dismissed affirming their conviction and sentence vide judgment impugned dated 30th January, 2009.

5. Before adverting to the rival submissions, it would be apposite to first take analysis of the evidence on record.

6. The case of the prosecution is based on circumstantial evidence. The circumstances which lead the trial Judge to held the appellants guilty under Section 302 and 120B IPC and confirmed by the High Court is primarily based on the evidence of complainant Vijay Singh (PW-2), Vandna (PW-5) and Uma Devi (PW-10), daughter and wife of the deceased and also relied upon the extra judicial confession made by the co-accused Babu Lal to Shambhu Singh (PW-3).

7. At the outset, it may be noticed that neither in the initial complaint on which the missing report was lodged nor at the stage after inquiry, when the FIR came to be registered (Exh. P-73), the name of appellant Devi Lal surfaced. Even in the statement of Vandna (PW-5), while recording statement under Section 164 CrPC, (Exh. D5), no such reference was made of any conspiracy having been hatched by Devi Lal,