SULTAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE incident giving rise to this appeal relates to village Hanutpura. Appellants Sultan and Genda are father and son. THEy and the deceased Kalu owned adjacent fields there in the vicinity of Meenawali Kothi. It is alleged that almost a month before Kalu's death, accused Genda entered the house of his brother Hariya at night, where Hariya's wife Smt. Badami (p. w. 6) was sleeping. At that time Hariya was sleeping at Meenawali Kothi. Smt. Badami raised an alarm on seeing accused Genda, but he ran away. Kalu also heard Badami's shouts and he was informed by her that Genda had entered the house and had run away. Genda's father accused Sultan, who was sleeping at a short distance in his own house, came there. Kalu ran after Sultan and gave him a lathi-blow which fell under his ear. It is said that it was in that connection that both Sultan and Genda gave a threat to Kalu that they would kill him some day. This according to the prosecution, was the reason why on the night in between September 2 and September 3, 1963, when Kalu was sleeping in the field, near his cattle, the accused took him in front of their own house and there accused Sultan caught hold of him while accused Genda cut; away the right leg of Kalu at the thigh with axe Ex. 7. It is further alleged that thereafter accused Genda went to the temple where Sarpanch Kalyandas (P. W. 1) was sleeping, woke him up and told him, in the presence of Hanuman (P. W. 2) who was also sleeping near Kalyandas, that he and bis father Sultan had cut the leg of Kalu with an axe at Meenawali Kothi. Kalyandas asked him to call Up-Sarpanch Chiranjilal (P. W. 9) and, when Genda brought him. He reiterated what he had told the Sarpanch about the injury which he and his father had inflicted on the person of Kalu. Genda was then asked to fetch his father Sultan, but Sultan came there himself and he also told Kalyandas (P. W. 1) in the presence of Up-Sarpanch Chiranji Lal (P. W. 9) and Hanuman (P. W. 2) that he had caught hold of Kalu while Genda had cut his leg. Kalyandas then sent Up-Sarpanch Chirnjilal to inform the members of Kalu's family and also to visit the place of occurrence. Chiranjilal accordingly informed Bhairon (P. W. 3) and Hariya (P. W. 8), brothers of Kalu, about what had been reported, and took them as well as Narain (P. W. 10) to Meenawali Kothi. On reaching there, they found that Kalu was lying injured in front of the house of the accused and his right leg had been completely severed from the body at the thigh and was lying nearby. Chiranjilal and others asked Kalu what had happened and it is alleged that Kalu told them that accused Genda and Sultan had brought him from his hut after gagging him, Sultan caught hold of him, and that accused Genda cut off his leg at the thigh. He was bleeding profusely and so he was placed on a cot and Chiranjilal and others started taking him to the hospital at Amarsar. When they had gone only a few paces, Kalu complained of severe pain and expressed his desire that he may be left where he was and that the doctor may be brought there. He was placed on the cot under a 'bam-bool' tree, while his brothers Bhairon & Hariya rushed to fetch a doctor from Amarsar. Kalu, however, succumbed to his injuries within two hours, before the arrival of the doctor. Bhairon and Hariya came to know of it while they were still at Amarsar and thereupon Bhairon lodged report Ex P. 1 at Amarsar police out-post at 5. 30a. m. Head Constable Onkarnath (P. W. 14) copied out the report in the Roznamcha and sent the original report to police station, Shahpura, so that a case may be registered there. He took two constables with him and left in the company of Bhairon and Hariya to the place of occurrence. THEy had gone only a short distance from the out-post, when Bhairon and Hariya saw accused Genda going on the road and pointed this out to the Head Constable, who ran and arrested Genda. It is alleged that he was wearing 'dhoti' Ex. 5 and shirt Ex. 6 at that time and these were taken by the Head Constable in his custody because they were found to be stained with blood. THE seizure memo evidencing the recoveries is Ex. P. 11. THE seized articles were sealed on the spot. THE police party reached the place where the dead body of Kalu was lying on the cot and there-after the Head Constable claims to have recovered the axe Ex. 7 under memorandum Ex. P. 2 and it is alleged that it was also found to be stained with blood. Shortly after, Veer Baboo (P. W. 15) who was incharge of police station, Shahpura, reached the place of occurrence at 3 p. m. after registering a case in pursuance of the first information report. He took in his custody the sealed packet containing the 'dhoti' and the shrit of accused Genda as well as the other sealed packet containing the axe. He found the blood lying at the place of occurrence, in front of the house of the accused, and drew up two site-plans one of the place where the incident had taken place and the blood was lying in profuse quantity and the other of the place where the dead body was lying under the bambool tree. He took the blood stained earth also into his possession and prepared the inquest report Ex. P. 3. He arranged post-mortem examination of the dead body by Dr. P. K. Sinha (P. W. 13) the same day, at the field where was lying, and Ex. P. 9 in the post-mortem report.

(2.) THE same evening Veer Baboo arrested accused Sultan and took his 'dhoti' Ex. 9 in his possession and sealed it on the spot. THE prosecution has further alleged that accused Sultan gave the information to Veer Baboo that he had hidden his other 'dhoti' after washing it and that he could get it recovered. That information was recorded in memorandum Ex. P. 15, and it is said that Dhoti' Ex. 8 was recovered in pursuance thereof, at the instance of the accused, from his house. THE 'dhoti' was sealed on the spot. THE prosecution has also produced report Ex. P. 16 of the chemical examiner and report Ex. P. 17 of the serologist for the purpose of showing that the 'dhoti' and the shirt of accused Genda and the 'dhoti' of accused Sultan as well as the axe were found to be stained with human blood. It is with these allegations that accused Sultan and Genda were challaned by the police.

(3.) WE then proceed to consider the evidence regarding the alleged extrajudicial confessions of the two accused. As has been pointed out earlier, it is the allegation of the prosecution that it was accused Genda who first went to Kalyan Das and made a confession before him in the presence of Hanuman (P. W. 2) and re-iterated it on the arrival of Up-Sarpanch Chiranjilal (P. W. 9 ). It has then been alleged that accused Sultan came a little later and also confessed the guilt. WE have already dealt with the testimony of Chiranjilal (P. W. 9) and given our reasons why we accept it as correct. Kalyandas (P. W. 1) was the Sarpanch and Mr. Chatterjee has not been able to advance any argument against his testimony. He is an independent witness and we would accept his statement also as correct. The presence of Hanuman (P. W. 2) at the place of occurrence is quite natural because he was sleeping near Kalyandas (P. W. 1), in the same temple. No criticism has been offered against his statement and we are inclined to accept it also as correct. As their Lordships of the Supreme Court have laid down in Mulkraj vs. State of U. P. (3), it is enough if the substance of the extra judicial confession is given by the witnesses before whom it was made and it can be relied upon by the court alongwith the other evidence for the purpose of convicting the accused. As has been stated, the evidence of the dying declaration is reliable, and the extrajudicial confessions of the two accused further corroborate it. Mr. Chrtteriee has argued that the extra-judicial confessions have not been mentioned in the first information report, but the criticism is futile because that report was lodged by Bhairon and he was not present at the time when the confessions were made by the two accused.