UMRAO ALIAS LANDIYA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) ON referencethis is an appeal by ONe Umrao and has been placed before me ON a difference of opiniON between the Judges hearing the appeal in DivisiON Bench. Umrao was put ON trial in the court of the AdditiONal SessiONs Judge, Alwar ON two counts; ONe under sec. 302 Indian INDIAN PENAL CODE, 1860 and the other under sec. 201 Indian INDIAN PENAL CODE, 1860. The learned AdditiONal SessiONs Judge found Umrao guilty under sec. 302 of the Indian INDIAN PENAL CODE, 1860 , but acquitted him of the other charge observing that an act of cONcealing the dead body of the deceased was not screening the offender as the accused himself was the offender. The learned trial Judge relied ON State vs. Mohanlal (l) for his cONclusiON that a murderer by removing a dead body from a place of murder to another place cannot be held to screen himself as the persON to be screened must be somebody else than the offender within the meaning of sec. 201 Indian INDIAN PENAL CODE, 1860.

(2.) THE convict appealed and the appeal was heard by a Division Bench consisting of V. P. Tyagi and J. P. Jain JJ. While Tyagi J. held that the accused was responsible for causing the death of the deceased Gulla and had, therefore, been rightly convicted by the trial court for the offence of murder under sec. 302 Indian INDIAN PENAL CODE, 1860 , Jain J. held that the evidence was not of such a character as to exclude every hypothesis but the one proposed to be proved by the prosecution namely, that of the accused being the murderer of Gulla. As regards the count under sec. 201 Indian INDIAN PENAL CODE, 1860 while Tyagi J. did not make any observation, Jain J. thought that in the circumstances the accused could be held guilty for causing disappearance of the evidence of the crime of murder and he could be punished under sec. 201 Indian INDIAN PENAL CODE, 1860 , but he felt that there was a difficulty in convicting him of that charge as he had been acquitted by the trial court and there had been no appeal against the accused's acquittal under sec. 201 Indian INDIAN PENAL CODE, 1860. In the result he was of the opinion that the appeal be allowed and the accused acquitted of the charge under sec. 302 Indian INDIAN PENAL CODE, 1860 as well.

(3.) JAIN J. dissented. He prefaced his discussion by referring to the principles regarding circumstantial evidence. He observed that the circumstantial evidence must be such as from which the inference of the guilt of the accused is irresistible and inescapable. The entire chain of circumstantial evidence must be conclusive as to give rise to the only inference of the guilt of the accused and it must not be consistent with any hypothesis of his innocence and it is only when there is such an evidence on record that an accused can be convicted on the basis of the circumstantial evidence. He referred to a recent case of the Supreme Court Kaliram vs. State of Himachal Pradesh (2 ). Then he embarked on the discussion of the various pieces of evidence relied on by the learned trial Judge. Regarding the motive JAIN J observed that there was not an iota of evidence to prove that there was enmity between the deceased and the accused. Referring to the statement of P. W. 13 Maujiram, Station House Officer, Bansur, he observed that all that: the witnesses stated was about registration of a case of theft against Birbal, Fakira and Deena on a report made by Gulla and he also deposed that he had put up a challan, but the witness did not state as to what happened in that case or what were the actual allegations made by Gulla. Further a copy of Gulla's report had not been placed on record. He observed that the contents of the first information report cannot be assumed without legal proof of the same. Then he referred to the statement of the accused under sec. 342 Criminal Procedure Code. He observed that the accused had, no doubt, stated that the allegations against him were false and he had been implicated on account of 'ranjish', but the accused was not asked to explain what P. W. 13 Maujiram had deposed, nor was any question put to him about the litigation. The circumstance brought out against the accused regarding the motive could not thus be availed of by the prosecution. As regards the extra judicial confession he agreed with Tyagi J. that the same has not been established. However he dissented from the conclusion reached by Tyagi J regarding the testimony of P. W. 2 Sheoram, P. W. 3 Lila and P. W. 4 Ram Kanwar for establishing the presence of the accused near the site of the occurrence. He subjected their statement to a close scrutiny and found that they were unnatural. When these witnesses heard the cries Sheoram shouted as to who was making the cries and then Umrao accused came there and on enquiry informed him that it was he who was making the cries and accepting the explanation of the accused the witnesses proceeded ahead This was, according to JAIN J. an unnatural conduct of the witnesses. Regarding P. W. 2 Sheoram, JAIN J. observed that he was hostile right from the beginning and when he was confronted with the statement made by him in the committing court Ex. P/l he admitted that Umrao had told him that there was a quarrel between him and Gulla and it was the cause of the noise. From this statement, according to JAIN J , it could not be spelt out that he had seen Gulla at that place and further even accepting his statement made in Ex, P/l it was only the word of Umrao which disclosed that there was a quarrel between him and Gulla. Lila P. W/3 deposed that the cry that he and others heard was 'ram Re, Toba Re, Hay Re" and it was on hearing this cry that the witnesses shouted to find out as to what was the cause of the noise. But when Umrao had come near them and alter he had told them that there was exchange of abuses between him and Gulla, the witnesses merely advised him not to fight. This was most unnatural. His lordship observed that it should have aroused their suspicion and they should not have gone away by merely accepting what Umrao had told them. Then there was some discrepancy about the distance between the witnesses and Umrao, one said it was 1000 paces, the other said 200 paces and the third said 50 paces, this lordship concluded the discussion by observing : " It was only the word of Umrao which informed them (witnesses) that he was exchanging abuses with Gulla. In my opinion this short of testimony is of hear-say character. "