' SADIQ HUSSAIN BHATTI, J.---Appellants/accused Mansingh son of Dholu Kohli and Dharshi son of Harchand Kohli, stood their trial in Sessions Case No,166 of 2003 which had arisen from F.I.R. No,79 of 2003 registered at Police Station Matli, which was lodged by complainant Harsan Kohli on 26-6- 2003 at 6-00 p.m. For offences under section 302/34, P.P.C.
' Brief facts arising out of the above F.I.R. Are as under:-- "The complainant Harsan Kolhi lodged F.I.R. On 26-6-2003 at 6-00 p.m., stating therein that he is Hari of one Khalil Rajput and have five sons and two daughters from the wedlock. His son Rai Chand aged about 18/19 years is third one. The house of one Darshi Kolhi is adjacent to his house and he has doubt that his daughter-in-law namely Shrimati Hareyna has illicit terms with his son Rai Chand. During the night hours at about 10-00 P.M. Darshi Kolhi and his relative Man Singh exchanged harsh words with Rai Chand and also gave him kicks and fists blows. Thereafter, his son Rai Chand and accused went outside the house. When Rai Chand did not return home on the next day of the morning, complainant and his sons namely Prem and Megho went in search of Rai Chand. During search at about 12-00 noon, they found dead body of Rai Chand in the Sugarcane crop of Khalil Rajput and deceased had burnt marks on his body, legs, arms and back' side side of Neck. They took dead body of deceased Rai Chand to - their house and then went to Matli and informed their. Zamindar Khalil Rajput about the incident who advised them to lodge F.I.R. Hence complainant appeared before the Police and alleged that present accused Darshi and Man Singh by way of giving electric shocks committed murder of his son and thrown his dead body in the Sugarcane crop as they have doubt about illicit relation between Rai Chand and Shrimati Hareyna."
3. Learned trial Court supplied the relevant documents to the accused before the commencement of trial as required under section 265-C, Cr.P.C, on execution of such receipt vide Exh.Q1. Charge Exh.03 was framed against the accused for allegedly committing. The offence under section 302/34, P.P.C. They both pleaded not guilty and claimed to be tried vide pleas Exhs.4 and 5.
4. Prosecution in order to substantiate their charge examined the followings P. Ws:-- ' P.W.I. Harsan Kolhi at Exh.09, complainant (father of deceased). He produced F.I.R. As Exh.10.
' P.W.2. Sono Kolhi at Exh.11, Extra judicial confession of both accused.
' P.W.3. Prem Kolhi at Exh.12, B/o deceased. Motive. P.W.4. Mauji Kolhi at Exh.14, mashir.
' P.W.5. Govachand Kolhi at Exh.14, Mashir. He produced Inquest report Exh.15, Place where dead body was thrown Exh.16, Dead body Exh.17, clothes of deceased Exh.18, memo of arrest of both accused Exh.19, production of electric wire used in the offence by accused Darshi and by accused Mansingh.
' P.W.6. A.S.-I. Muhammad Yousif at Exh.31, Investigating Officer.
' P.W.7. Dr. Ghazi Amanullah at Exh.32, Medical Officer. P.W.B. Bhomo at Exh.33, Tapedar. Produced sketch Exh.34.
' P.W.9. LNC Haji Khan at Exh.35, corpse bearer. Receipt Exh.36.
' P.W.10. A.S.-I. Gulsher Qambrani at Exh.37, recorded F.I.R. Exh.10.
' Thereafter, prosecution closed its side vide Exh.39.
5. Statement of accused Mansingh recorded under section 342, Cr.P.C. At Exh.40 and statement of accused Darshi recorded under section 342, Cr.P.C. At Exh.41. Both the accused totally denied the prosecution allegations and pleaded their innocent and they stated that they are involved in this case due to matrimonial dispute. Both the accused neither examined themselves on Oath nor examined any D.W.
6. The trial Court after hearing the arguments advanced at bar by the learned advocates and examining the relevant record, passed the sentence, convicting both the accused to suffer imprisonment for life in addition to pay Rs,50,000 each as compensation to the L.Rs, of the deceased and in default whereof to suffer R.I. For six months more. However, both the accused were given the benefit of section 382-B, Cr . P. C .
7. The appellants/accused being highly aggrieved and dissatisfied by the above judgment dated 1-6-2007 passed by the trial Court, preferred this Criminal appeal. During the course of arguments, the learned counsel for the appellants/accused raised the following contentions: -
(i) That the trial Court has misconceived the evidence and erred in determining the fate of the case.
(ii) The points of the last seen and extra judicial confessions are purely pieces of evidence and cannot be taken into account unless strongly supported by any other independent testimony.
(iii) The various pieces of evidence adduced by prosecution are in the form of circumstantial evidence, without any material, ocular or documentary evidence.
(iv) The trial Court has not properly considered the point of last seen with accused evidence and the conclusion drawn, is entirely resting upon presumptions.
(v) Articles 133 and 71 Q.S.O. Provide clear view that such type of evidence require other independent evidence, otherwise merely words have no legal force.
(vi) The evidence of mashir of recovery is not reliable in view of material contradictions.
(vii) The trial Court has passed the impugned judgment in haste without considering the important aspect of the case which actually suffers from legal and factual infirmities.
(viii)That under these circumstances the conviction awarded by learned trial Court is based upon surmises.
8. On the other hand, the learned State Counsel has supported the impugned judgment on the ground that prosecution has placed sufficient reliable evidence on record which is sufficient to warrant conviction.
9. Having heard the learned counsel for the appellants/accused and State and have also gone through the evidence so produced by the prosecution before the trial Court to substantiate accusation against accused. At the very outset, it is to be noted that in criminal cases it is always the primary duty of the prosecution to establish its own case independently instead of depending upon the weakness of defence.
10. Death of deceased Raichand son of complainant Harsan Kolhi is proved through the evidence of mashir Govachand Exh.14, who produced the inquest report in respect of deceased Rai Chand as Exh.15. He identified the dead body of deceased which was lying on a cot in front of the house of complainant Harsan, father of deceased. Deceased had burn injuries over different parts of his body.
11. P.W.7, Dr. Ghazi Amanullah examined at Exh.32, deposed that on 26-6-2003, he was working as C.M.O. At Taluka Hospital Matli, on that day he received the dead body of deceased Raichand son of Harsan for conducting the postmortem examination and report, along with Inquest report. On external examination, he found following injuries on the person of deceased Raichand.
(1) An electric burn injury with burning tattoning. Wound of entrance and exist on left hand.
(2) An electric burn injury with burning tattoning due to close contact wound of entrance and exist left elbow.
(3) An electric burn injury with burning tattoning on both the eyes.
(4) An electric burn injury with burning tattoning due to close direct contact on back of neck.
(5) Same type of injury on right kne.
(6) Same type electric burn injury on left foot blackening tattoning present on affected party.
' Other organs were found normal and healthy. However, minute hemorrhage was found in memberances.
' OPINION:--From external as well as internal examination of the dead body, he was of the opinion that the death of deceased has occurred due to consequences of the above injuries, as a result of applying close electric phase wire as a result of which the death occurred immediately, due to paralysis of central nervous system and also paralysis of respiratory muscle and filerittetan of heart causing sudden stoppage of heart. The electrical burn are usually accidental or suicidal and in very rare cases they are Homicidal and that depend on the circumstances. Death of the deceased was immediate. M.O. Has categorically shown suspicion that such type of burn wounds are usually accidental or suicidal and are very rare homicidal. Thus M.O. Has shown suspicion, which cannot be ruled out. In the cross-examination, the witness deposed that it is incorrect to suggest that the injuries were sustained by deceased after B his death.
12. From the reading of above evidence, it is quite clear that deceased Raichand died unnatural death, as described above.
13. Now to find out who caused these injuries by applying live electric wire on various parts of the body of deceased.
14. The prosecution case hinges upon the following pieces of evidence:--
(i) Last seen with accused.
(ii) Extra judicial confession.
(iii) Recoveries of pieces of electric wire.
(iv) Motive.
(v) Medical evidence.
15. As so far medical evidence is concerned, it has already been discussed in early para.
16. It has come through the evidence of complainant Harsan and other P.Ws. That both the accused used to reside adjacent to the house of complainant within same enclosure.
17. According to complainant Harsan, accused suspected deceased to have illicit relations with Shrimati Hareyana. Complainant Harsan deposed that due to this suspicion both accused had beaten deceased who became annoyed and left his house to unknown destination. Complainant further deposed that his son was followed by accused. When he did not return that night next day in the morning at 8-00 a.m., they started for his search and ultimately found the dead body of deceased Raichand lying in Sugarcane cultivation of Khalil Rajput in water course. Complainant deposed that they went and informed the facts to Khalil Rajput who advised him to lodge the F.I.R.
And he accordingly lodged the F.I.R. At. Police Station Matli. Complainant stated that he suspected the present accused to have had in this incident.
18. P.W.3., Prem examined at Exh.27, is son of the complainant and brother of deceased and deposed the same version as of his father. He further deposed that the distance between his house and place where dead body was lying could be about five acres.
19. The above two witnesses are examined by prosecution to prove that deceased was last seen with accused. Complainant has deposed that since he was suspected to have illicit relations with Shrimati Hareyana and was threshed by accused hence due to annoyance deceased left the, house. Now these three houses of both the accused and complainant are so close and within the same enclosure. Hence it cannot be safely said that deceased was last seen with accused. Both the witnesses have deposed that accused chased the deceased but strangely complainant party remained quiet and unmoved, they did not follow the accused to prevent any further untoward incident, but contrary had sound sleep and on the following morning started search. So in my opinion this piece of evidence does not fall within the ambit of the last seen.
20. On the point of extra judicial confession, prosecution has examined P.Ws. Sono Exh.11 and Maoji Exh.13.
21. P.W.2, Sono examined at Exh.11 has deposed that both the accused are his relatives. Accused Darshi is his brother-in-law and Mansingh is son of her mother's sister. One person by name Sono had come to him at Talhar and disclosed to him that some one had given electric shocks to deceased Raichand. He further deposed that thereafter', he went to Matli where both accused met him and disclosed to him that on the night of incident both accused and deceased had exchanged hot words and thereafter, deceased left the house and they both followed him and further disclosed to this P.W. That they went to Pir Wah minor where water pumping machine was installed which used to operate on electricity. Where they saw deceased was sleeping, they overpowered deceased and gave him electric shocks by means of live electric wire as such he died. Both accused further disclosed that they removed the dead body on their shoulders and threw it in dry water course in Sugarcane cultivation of Khalil Rajput. This P.W. Further deposed that both accused threatened him not to disclose the same to any one, if he narrated the facts to anyone, he shall face the same consequences.
' In the cross-examination he stated that the house of complainant and land of Khalil Rajput is situated at a distance of 5 Km away from Matli town. At the time of incident he used to reside at Talhar about 25/26 Km away from Matli. He admitted that deceased Raichand was son of his sister Ajoo married to complainant Harisan. Both accused had made their extra judicial confession before this P.W. On the same day of the incident at 4-30 P.M. The P.W. Further disclosed that I had disclosed the above facts to complainant after 15 days of the incident. He also deposed that he attended the funeral of deceased for continuous ten days as the deceased was his maternal nephew. He also admitted that on hearing the demise of his maternal nephew he went to attend funeral at Matli. Police had recorded his statement after 13 days of the incident.
22. P.W.4, Maoji examined at Ex.13, has deposed that about more than three years back, he heard that Raichand son of Harsan was murdered by accused Mansingh and Darshi by giving him electric shocks. He came to Matli, where both accused Mansingh and Darshi met him and disclosed to him that they both had committed the murder of deceased Raichand by giving him electric shocks. They also disclosed that during the night hours deceased was sleeping at the electric machine of Ghulam Hussain where they overpowered him and gave him electric shocks and thus committed his murder. Thereafter, they left the dead body of deceased in the land of Khalil Rajput in water course. In cross-examination, he admitted that he resides one Kilometer away from Matli. The distance between the village of this P.W. And complainant could be 6 Km. He came to know about the incident on the very same day in the morning through difference sources but not from complainant side. He further deposed that in the evening he came to Matli at 5-00 P.M. Where both accused confessed their guilt before him. But he informed the police after 11/12 days of the above confessional narration passed on to him by both accused. He admitted that he attended funeral ceremony and condoled the death of deceased. On the next day of the meeting with accused, he met complainant at Matli. He admitted that deceased Raichand was his sister's son.
23. On examination of this piece of evidence which is led by prosecution on extra judicial confession is quite miserable. Both witnesses are maternal uncle of deceased but for reasons best known to them, they did not disclose the facts to bereaved family even did not disclose the same 12 to 15 days after the accused disclosed to them their involvement in the offence, though during this period they remained with bereaved family and met complainant on number of occasions.
Their evidence is full of inconsistencies and inspiring no confidence and cannot be used as tangible evidence.
24. Even otherwise why two accused shall come before the maternal uncle of deceased and confess their guilty, if they were pricked by their conscience it would have been more better to go and confess the matter before police or any Magistrate of the local area.
25. This extra judicial confession cannot legally be taken into account as the same is in the nature of joint extra judicial confession as according to above witness, both the accused jointly confessed their guilt at the same time. Such confessional statements have no legal credence hence cannot be used against accused.
26. The complainant and his son Prem also did not corroborate the testimony of the above P.Ws. As regards the extra-judicial confession of both accused, in the statements.
27. Another piece of evidence is recoveries of two pieces of electric wires. On this point, mashir Govachand is examined. He did not say specifically when, how and from where these pieces of electric wires were produced by accused but in a cursory manner deposed that police recovered these two pieces.
28. Electric wires are common articles and are easily available in every nook and corner of any small market.
29. The recovery of electric wires is attributed to accused after 13 days of the arrest of accused.
Under these circumstances, the recoveries are futile and have no legal sanctity. Hence cannot be termed legally as recoveries.
30. Motive is also not proved as Shrimati Hariyan, daughter-in-law of accused Dharshi Kolhi who is alive. Her statement with regard to the motive is not recorded nor appeared as witness. The word enmity cannot be considered as sufficient motive for commission of offence and it can easily be used for false implication as well.
31. Medical evidence as discussed above creates suspicion that it could be case of accidental or suicidal. In fact the above case hinges on the circumstantial evidence, which is like a chain. In such cases, there should be complete sequence, and if any piece of chain is missing the whole thing collapse.
32. Moreover, the edifice of the prosecution story has been raised on extra judicial confession of both the accused. The extra judicial confession is generally a weak piece of evidence and has to be received with caution. It can only be worthy of credit if (a) it comes from an unimpeachable source or (b) it is corroborated by any piece of credible evidence.
33. For the aforesaid reasons, I am afraid the conviction of the appellants, accused cannot be sustained on the basis of the evidence which has been laid in this case. Resultantly, this Criminal Appeal is allowed and, the impugned judgment dated 1-6-2007 passed by IInd Additional Sessions Judge, Badin is set aside. The appellants/accused who are in jail, shall be released forthwith if they are not required to be detained in any other case.