Back
1998 Supreme(P&H) 1357
PUNJAB & HARYANA HIGH COURT
V.K.Bali and B.Rai JJ.
Hari Kant
Versus
State Of Haryana
Criminal Appeal No. 291 of 1995,
Decided On : NOVEMBER 3, 1998
Extra-judicial confessions made jointly to persons with whom the accused has no intimacy are generally viewed with suspicion and cannot be relied upon for a conviction.
Headnote:
CRIMINAL APPEAL - SECTION 302, 34, 201 IPC - MURDER OF A CHILD - JOINT CONFESSION - LAST SEEN EVIDENCE - CIRCUMSTANTIAL EVIDENCE - CREDIBILITY AND RELIABILITY - CONVICTION SET ASIDE - APPELLANTS ACQUITTED.
Fact of the Case:
Appellants Hari Kant and Kalia were convicted under Sections 302, 34, and 201 of the Indian Penal Code for the murder of a child, Aspatali, son of Sham Bihari. The prosecution's case was based on a joint extra-judicial confession made by the appellants before Jogi Ram and Kunj Bihari, as well as the testimony of Vidyarthi, who claimed to have last seen the child with the appellants.
Finding of the Court:
The court found that the chain of circumstances was incomplete and insufficient to establish the appellants' guilt beyond a reasonable doubt. The joint confession was deemed unreliable as it was made to persons with whom the appellants had no intimacy. The court also found inconsistencies in the statements of the witnesses and questioned the credibility of the last seen evidence.
Issues: 1. Whether the joint extra-judicial confession made by the appellants was admissible and reliable. 2. Whether the testimony of the witness who claimed to have last seen the child with the appellants was credible and sufficient to establish their guilt. 3. Whether the circumstantial evidence presented by the prosecution was strong enough to support a conviction.
Ratio Decidendi: 1. The court held that the joint extra-judicial confession was not credible as it was made to persons with whom the appellants had no intimacy. Such confessions are generally viewed with suspicion and cannot be relied upon for a conviction. 2. The court found that the testimony of the witness who claimed to have last seen the child with the appellants was not reliable. The witness's statement contained inconsistencies and lacked sufficient detail to establish the appellants' guilt beyond a reasonable doubt. 3. The court concluded that the circumstantial evidence presented by the prosecution was not strong enough to support a conviction. There were gaps and inconsistencies in the evidence, and the court could not rule out the possibility that other individuals may have been involved in the child's disappearance and death.
Final Decision: The court allowed the appeal, set aside the conviction and sentence recorded by the Additional Sessions Judge, and ordered the appellants to be set at liberty forthwith.
V.K.BALI, J.
1. Appellants Hari Kant and Kalia who have been held guilty of an offence under Section 302 read with Section 34 of the Indian Penal Code as also under Section 201 read with Section 34 of the Indian Penal Code and sentenced to undergo imprisonment for life as also to pay a fine of Rs. 5,000/- each and R. I. for two years and a fine of Rs. 500/- or in default of payment of fine to further undergo R.I. for six months vide orders passed by the Additional Sessions Judge, Sirsa dated 6th and 7th of April,1995 have filed this appeal with an obvious prayer to set aside the judgment and order of conviction and sentence recorded by the learned Additional Sessions Judge and acquit them of the charges framed against them.
2. Sham Bihari PW-1 father of Aspatali lodged F.I.R. with regard to missing of his son from 30-6-1994 at Police Post Khairpur on 4-7-1994. In his statement so made, he stated that he was residing at Village Khairpur and was employed in G.T.M. Sirsa. He was living along with his children in village Khairpur. He has two children, the eldest namely Aspatali was aged about 2 years and younger to him Lachhmi was aged 1.1/4 months. On 30-6-1994, he had gone on his duty and his wife was preparing meals at home. At about 7.45/8.00 P.M. his son Aspatali was playing near the road outside the house with other small children. After some time, his wife Savitri Devi went to take his son but he was not present there. His wife came to G.T.M. and told him about entire matter. Thereafter, they searched for their son Aspatali for a long time but no clue could be found. On 1-7-1994, he had lodged report regarding the missing of his son at police post, Khairpur. Till today they have been searching for their son every where in the city and in the nearby villages but no clue of his son was found. He had suspicion that some unknown persons had taken away his son Aspatali with intention to kill him.
3. From the statement made by Sham Bihari, it thus, transpires, that his son Aspatali had gone out of the house on roadside in 30-6-1994 and could not be traced till such time F.I.R. was lodged on 4-7-1994. The special report with regard to the incident was received by the concerned Magistrate on 4-7-1994 at 11.48 PM. The police after investigation arrested the appellants and charged them for an offence under Section 302 read with Section 34 as also under Section 201 read with Section 34 IPC. They were, thus, sent for trial with the result as indicated above.
4. The prosecution in its endeavour to bring home the offence against the appellants examined Sham Behari first informant and the father of Aspatali as PW-1. He deposed in tune with the F.I.R. lodged by him. In his cross-examination he stated that the appellant Harikant used to live in his neighbourhood and used to ply rickshaw. No ransom for release of his son was ever demanded from him by the appellants or any other person. He admitted that news of disappearance of his son had spread in the locality on the night of 30-6-1994 itself. He had informed Jogi Ram and Kunj Bihari on 3-7-1994 about the disappearance of his son. The prosecution examined Jogi Ram as PW-2. He stated that he was the President of G.T.M. and Distt. INTUC, Sirsa. On 1-8-1994, he was in his house. Kunj Bihari General Secretary of INTUC was with him. Appellants came to him and told him that they had committed a mistake and that on 30-6-1994 at about 8/8.30 PM they had kidnapped a male child of Sham Bihari aged two years and Hari Kant had taken him to village Bajekan to the appellant Kalia and both of them had kept the child there for two days and then they brought back the child. Fearing that if they returned the child in Khairpur, the police might apprehend them, they strangled the child and threw the dead body in the canal and ran away to U.P. They also told him that when they saw Haryana Police in U.P., they returned from there and narrated the aforesaid facts to them. The witness further stated that a
