Chhotu Singh v. State Of Rajasthan .

Order

1. Chhotu Singh, the appellant before us, and one Smt Phooski were tried by the Sessions Judge, Churu for the murder of Prabhu Ram, husband of Phooski, and for concealing his dead body in a pit dug on their land. The trial ended in conviction of both of them under Sections 302 and 201 of the Indian Penal Code. Aggrieved thereby, they preferred an appeal which was dismissed by the High Court. The above order of the High Court is under challenge in this appeal at the instance of the appellant.

2. In the absence of any eyewitness to the murder, the prosecution rested its case upon the following circumstances:

(i) the appellant had an illicit relationship with Phooski;

(ii) the appellant confessed his guilt to Hanuman (PW 9), brother of Phooski, in the presence of Beg Singh (PW 1) and Dhoodh Singh (PW 2); and

(iii) pursuant to the statement made by the appellant, the dead body of Prabhu Ram was recovered from a pit dug on their land.

3. The Sessions Judge held that the prosecution succeeded in proving all the above three circumstances and as, according to the learned Judge, the circumstances unerringly pointed to the guilt of the appellant, held him guilty of the offences against him. The High Court, however, found that the prosecution failed to prove the first circumstance alleged against the appellant, but concurring with the other findings of the Sessions Judge, upheld his conviction.

4. Since we are in complete agreement with the High Court that the prosecution failed to prove the first circumstance, the questions that fall for our determination are whether the other two circumstances stand proved, and if so, whether they, taken together, unerringly point to the guilt of the appellant. So far as the second circumstance is concerned, PW 9 did not support the case of the prosecution and, therefore, we feel that we will not be justified in relying upon the retracted extra-judicial confession on the basis of the testimony of PWs 1 and 2.

5. That brings us to the third circumstance. The statement made by the appellant before the investigating officer — to the extent it is admissible under Section 27 of the Evidence Act, 1872 — only proves that he had buried the dead body in the pit knowing that the offence of murder was committed but does not, in the absence of any other material, conclusively prove that he committed the murder. We, therefore, set aside the conviction of the appellant under Section 302 IPC but affirm his conviction and sentence under Section 201 IPC. The appeal is thus disposed of.