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1955 Supreme(J&K) 8
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Jia Lal Kilam,M.A. Shahmiri, JJ.
Arandatti - Appellant
Versus
State - Respondent
Cr. Ist Appeal No. 4/1955
Decided On : 22 February, 1955
Advocate For Appellant: Nand Lal Koul
Advocate For Respondent: Amicus Curiae
The court held that the approver's statement was not corroborated by independent evidence, the retracted confession of the appellant was not voluntary and reliable, the extra-judicial confession made by the appellant to her brother was not reliable, and the police investigation was not conducted properly.
Headnote:
CRIMINAL PROCEDURE CODE, 1898 - Sections 302, 201 - Murder and causing disappearance of evidence of murder - Conviction under S. 302 set aside - Conviction under S. 201 maintained - Corroboration of approver's statement - Independent evidence - Retracted confession - Circumstances under which recorded - Value - Recovery of dead body and clothes of deceased - Significance - Extra-judicial confession - Reliability - Police investigation - Criticism.
Fact of the Case:
The appellant, Mst. Arandatti, was convicted under Ss. 302 and 201 R. P. C. for respectively having caused along with her paramour, Mohd. Bhat approver, the death of her husband, Sri Kanth, Patwari, and disappearance of the evidence of this offence and sentenced to life imprisonment and to four years rigorous imprisonment. The case was also before the court for confirmation of the sentence of life imprisonment on a reference by the Sessions Judge, Kashmir, under S. 374, Criminal P. C.
Finding of the Court:
The court found that the appellant was entitled to the benefit of doubt so far as the offence under S. 302, R. P. C. was concerned. However, the offence under S. 201, R. P. C. was fully proved against her. Therefore, the court set aside the conviction and the sentence passed upon the appellant under S. 302, R. P. C. but maintained her conviction and sentence under S. 201, R. P. C.
Issues: 1. Whether the approver's statement was corroborated by independent evidence? 2. Whether the retracted confession of the appellant was voluntary and reliable? 3. Whether the recovery of the dead body and clothes of the deceased was significant? 4. Whether the extra-judicial confession made by the appellant to her brother was reliable? 5. Whether the police investigation was conducted properly?
Ratio Decidendi: 1. The court held that the approver's statement was not corroborated by independent evidence. The court noted that the approver had resiled from his statement before the Sessions Court and that there was no other evidence to show that he was seen in the house of the deceased on the fateful night or on a day or two preceding it. Further, the court found that the retracted confession of the appellant did not furnish material corroboration of the statement given by the approver. 2. The court held that the retracted confession of the appellant was not voluntary and reliable. The court noted that the appellant was sent to the Magistrate direct from the police custody and that she was expecting child birth at any moment. The court also noted that the appellant cried hoarse when spasm consequent upon these pains agonized her body and this spell, of excruciating pain lasted all through while her statement was being recorded. 3. The court held that the recovery of the dead body and clothes of the deceased was significant. The court noted that the deceased was murdered in the house and in all probability on the night intervening between the 27th and 28th of Phagan 2010. The court also noted that the appellant pointed out the place from where the clothes were recovered. 4. The court held that the extra-judicial confession made by the appellant to her brother was not reliable. The court noted that the confession was alleged to have been made on 29th Phagan but Prem Nath did not open his mouth till he, his father and Arandatti were arrested by the Police. The court also noted that Prem Nath is not a man on whose testimony implicit reliance can be placed. 5. The court held that the police investigation was not conducted properly. The court noted that the police did not raid the house and carefully search it at the earliest possible moment and that they did not pack and seal the clothes recovered from the pit and the bed room on the day when these were recovered and in the presence of the witnesses before whom these were recovered.
Final Decision: The appeal was partly allowed. The conviction and sentence passed upon the appellant under S. 302, R. P. C. was set aside. However, the conviction and sentence under S. 201, R. P. C. was maintained.
This is an appeal against an order of the Session; Judge, Kashmir, by which the appellant, Mst. Arandatti, has been convicted under Ss. 302 and 201 R. P. C. for respectively having caused along with her paramour, Mohd. Bhat approver, the death of her husband, Sri Kanth, Patwari, and disappearance of the evidence of this offence and sentenced to life imprisonment and to four years rigorous imprisonment. The case is also before us for confirmation of the sentence of life imprisonment on a reference by the Sessions Judge, Kashmir, under S. 374, Criminal P. C.
(2) The prosecution story, as mainly disclosed by Mohd. Bhat approver in his deposition before the committing Magistrate from which he resiled in the Sessions Court and which has been transferred to the Sessions file by the trial Judge under S. 288, Criminal P. C., is briefly as follows:
Mst. Arandatti, 24 years old, had been the wife of Pt. Sri Kanth Patwari, deceased, who was aged 55 for the last 15 years or so. She was now fully grown up and young, while her husband was old, ugly and one eyed. For sometime Sri Kanth, deceased attached her brother Prem Nath, P. W. 3, to himself for helping him in his patwar work. Towards the end of 2008 Sri Kanth became dissatisfied with Prem Nath. He thought he was pilferring things from his house and then Mohd. Bhat approver, P. W. 1, who was literate and had read upto the middle standard appeared on the scene. Sri Kanth took him as a substitute for Prem Nath and made him assist him in his work. Mohd. Bhat came to Sri Kanths house frequently and he did it even while the Patwari was absent from his house. Mohd. Bhat was only 23 and the two young people, Mst. Arandatti and he, soon grew fond of each other and it is alleged that an illicit intimacy developed between them.
This led them to devise plots for the removal of obstruction to their guilty love. Different schemes for doing away with the Patwari entered their minds. At first it was thought that the Patwari should be killed while he would be out on tour in his Circle. This, however, could not mature. Mohd. Bhat then, suggested to Arandatti to poison her husband. She would not accept this suggestion, because she felt that in these circumstances she would have to face the music all alone. Eventually it was decided to kill him in his house at Kulgam and then to bury his corpse in the ground floor. With a view to carry out this nefarious design, according to the approver, it was decided that he should live in the house concealed from all, a long time before the actual execution of the plot and so, as he puts it, he remained there concealed for 26 or 27 days and during this time he dug a pit in the Vatu (a small entrance chamber of the house in the first storey) on the right side of the door.
This pit was prepared about 10 or 15 days before the murder. It was then covered with small planks and earth. The approver says that he did not go out from this house during these days even to answer the call of nature and Arandatti did the scavenging for him. A few days before the occurrence the approver placed the knife which he had brought from Punjab for the commission of this offence with Arandatti and she kept it safe in a box.On 26th Phagan 2010 Sri Kanth went to the house of his wifes step-father, Deva Ham, at Mangalpora to condole with him on his fathers death. Arandatti could not go because she was pregnant. On 27th Phagan 2010 in the afternoon Sri Kanth deceased returned to his house at Kulgam. He purchased
some meat and other provisions from the Bazar and told his wife to prepare food for Badri Nath Patwari, P. W. 12 and Kashi Nath Girdawar, P. W. 13,
whom he had asked for midday meal on the next day.
Then he visited the temple in the evening. At that time Arandatti told the approver to conceal himself under a cot in their bed room on the second
storey. He did as he was told and the appellant covered the cot with a duree and gave the knife and a torch to
