1988 P Cr (PLP)

5. The learned trial Court after taking into consideration the evidence adduced by the prosecution came to the conclusion that deceased Bansimal was done to death by injuries caused by a sharp cutting weapon. It also came to the conclusion that appellant Shirimati Seetan and absconding accused Chandarmal had committed murder by intentionally causing death of Bansimal by giving him the above injuries. Additionally the learned trial Court came to the conclusion that both the appellant and absconding accused had tried to destroy the evidence of murder of Bansimal by throwing the pieces of his dead body in the canal. All this was done by each of them in pursuance of their common intention. I have heard Mr. Sobho Gianchandani, Advocate for the appellant and Mr. M.I. Qarni, counsel for the State and Mr. Amanullah private counsel for Mangatmal.

6. The medical evidence in this case consists of the evidence of Dr. Yar Mohammad Shaikh of Taluka Hospital Pano Akil Ex.36 and post-mortem report Ex.37. The post-mortem report shows that P.C. Qurban Ali had brought the pieces from Pir Wah Canal, the body of the deceased. The pieces that were brought consisted of head, trunk, both arms and both legs. The male organ was missing. He started post-mortem at 9-00 a.m. and finished at 10-00 a.m. In his deposition in the trial Court he has changed his version and said that he had received only the trunk of the body of the deceased earlier and started its post-mortem examination at 9-00 a.m. and finished it at 10-00 a.m. The remaining parts of the dead body were received by him at 1-00 p.m. on the same day with a separate letter and the post-mortem was conducted later on, on the same day. He has not mentioned at what time he started post-mortem examination of the remaining parts of the body and at what time he finished the same. He has further stated that he had first prepared rough notes of the two instalments of post-mortem examination of dead body and then mortem report. Those rough notes do not not believable that separate timings mentioned in these rough notes would have escaped the Medical Officer's attention when preparing fair post-mortem notes. The medical evidence therefore in itself has become doubtful on account of this inconsistency. Moreover it has made the pointation of the head and limbs of the dead body by the appellant, which was alleged to have taken place at 1-00 p.m., highly doubtful. It is stated by the Medical Officer that the male organ of the deceased was missing and therefore it was not possible for him to say as to whether he was a Hindu or Muslim. He has also excluded the possibility of the death being due to strangulation and has mentioned that no marks of ligature were present on the neck which belies the story given by Mst. Nanki in her 161, Cr.P.C. statement and by the appellant in her judicial confession that first they had strangulated the deceased to death and then had cut his dead body into pieces next day and thrown into the canal. He has further clarified that all the injuries were ante mortem and therefore there remains no doubt as to the fact that the death was solely due to the injuries which were caused by sharp cutting weapon and the possibility of his having been first done to death by strangulation and then cutting his dead body in pieces is out of question.

7. The ocular evidence in this case is furnished only by P.W. Mst. Nanki, who is the real daughter of the appellant. At the time of incident she was hardly 14 years of age. The Investigating Officer states that he had made inquiries from 61st. Nanki before the arrest of the appellant. This statement of the Investigating Officer does not appear to be convincing. He has not mentioned the date on which he had examined Mst. Nanki. Even during his statement in the trial Court first the I.O. had narrated all about the arrest of the appellant and the discoveries made by her and then he had stated, obviously on afterthought that he had examined Mst. Nanki before the arrest of the appellant. Mst. Nanki has herself admitted in cross-examination F that her statement was recorded by the 1.0. after the arrest of the appellant. In her 161, Cr.P.C. statement she has alleged that the appellant and the absconding accused Chandarmal had first strangulated his father to death by means of a rope and on the next morning cut his dead body into pieces and in three rounds took it away from the nouse ire a box. On 16-2-1977 the 164, Cr.P.C. statement of Mst. Nanki was recorded before a local .Magistrate. This statement is translated as under:- "For the last 5/6 months my father at the instance of other persons used to quarrel with my mother Shirimati Seetan every day on household affairs and was not giving her maintenance except occasionally. About 4 days back during the night time my father came to the house as usual, took meals, quarrelled, abused and slept. For the last 1; months Chandar son of Dharmoo Soonaro resident of Kadirpur Taluka Ghotki who is my masat had started living in our house. I, my mother and Chandar slept away. At about 10-30 there was a cry. I got up and saw that my mother Shirimati Seetan and masat were slaughtering my father Bansimal with a Kati. They told me not to raise cries. On account of fear I kept quiet and slept away. In the morning I saw dead body of my father Bansimal which was lying in pieces and my mother and Chandarmal kept it in a trunk and took it out from the house in three rounds. They told me that I should not disclose it to anybody. After 3 days my mother Shirimati Seetan went to Pano Akil and gave report of the murder of my father. Police came and made inquiries from me whereupon I disclosed this fact to them." Her deposition in the Court is inconsistent and contradictory in material particulars with her 164 Cr.P.C. statement which is inconsistent with her 161 Cr.P.C. statement. She has also made a number of improvements in her deposition in trial Court vis-a-vis her sections 161 and 164, Cr.P.C. statements. She has introduced for the first time in the trial Court the theory of Jeo Mal coming to their house which was being objected to by her father and thereon there used to be quarrel between the two. She has added that 3/4 months before the incident her mother had mixed poison in the milk and given it to her father which eras taken by a cat, which died then and there. Thereafter the deceased had started cooking his own meals. Regarding the actual incident she has said that when she went to the room or hearing the cries of 'bachao bachao' of her father she saw her mother Shirimati Seetar, catching hold of the legs of her father who was lying on the mat on the ground and Chandarmal was standing there with a kati. She saw the head of her deceased father severed from the neck. He was dead and bleeding. She became unconscious. .After 12 hours she regained senses, She freed both of her sisters from a trunk in which they were locked by Chandarmal. She herself was also locked in a room but from the outer door she peeped. She found her mother and Chandarmal in the same room and the dead body of her father in a trunk and blood coming out from it. First her mother took some parts of the body and thereafter Chandarmal took away the remaining parts of the dead body in two rounds during the night. On the following morning the two accused washed the blood from the room and burnt tire rope. On 3-11-1977 she had given affidavit before IIIrd Class Magistrate wherein she had stated that P.W. Chandarmal and Nlangatmal had wrongfully confined her and had outraged her modesty and attacked upon her for sexual intercourse. They also wanted to forcibly give her in Marriage. They had taken away the gold as well as silver ornaments and cash and all other articles of her father after his death. She was confronted with this affidavit in the trial Court. She had admitted having signed it but denied its contents. The evidence of Mst. Nanki is that of a chila witness and as such not readily acceptable. Investigating Officer had not examined her immediately on the lodging of the F.I.R. although she was available. P.yV. Chandarmal, the husband of her sister also admits having reached the deceased's house immediately on coming to know of the fact that Bansimal was missing i.e. at least 3 days before finding of the corpus delicti but he did not make enquiries from Mst. Nanki. Even N(st. Nanki herself did not come forward to l disclose this fact to Chandarmal, although he was the husbanc of! her sister, a relative of confidence for a girl. Her statement appears! to be given by her not only as an afterthought but seems to have been procured by inducement, misrepresentation or may be by coercion. 1 It is not only inconsistent and contradictory to what she has stated in her 161 and 164, Cr.P.C. statements but is even inconsistent and contrauictory to the version alleged to have been given by the appellant in her judicial confession and for that matter by absconding accused Chandarmal in his judicial confession. It is quite apparent that after the arrest of the appellant mist Nanki has been made to give statement against her. The fact of her having been locked in the room by her mother and after three days Investigating Officer's coming to rescue her from this confinement is not testified even by the Investigating Officer. He on the contrary stated that he sent for the minor children but they did not give any clue. Her alleged confinement is nothing but a figment of imagination of Chandarmal. The statement is such that it does not inspire any confidence whatsoever and cannot be believed by a judicial mind.

8. The next piece of evidence is the judicial confession given by the appellant before Mohammad Azeem, Nlukhtiarkar and First Class Magistrate Pano Akil on 16-2-1977 as well as the judicial confession given by absconding accused Chandarmal before the same Magistrate. In short the appellant has stated therein that her deceased husband Bansimal used to quarrel with her on household affairs and had stopped giving maintenance to her. She and absconding accused Chandarmal therefore pounced upon the deceased when he entered into his room at 11-00 p. m. on 22-1-1977 and put a rope around his neck and also tied his arms and feet and strangulated him to death till blood started coming out of his nostrils and mouth. Both of them then took a kati and cut his dead body in pieces and discarded in Pir Wah Canal at about 12-00 noon. Thereafter they washed the blood-stained articles. Absconding accused Chandarmal has also repeated the same story. The story given in these two judicial confessions is not readily believeable. It cannot be believed that a Hindu woman would go to the extent of murdering her husband simply because he used to quarrel with her on household affairs or had stopped giving maintenance to her. The version of tying a rope in the neck of the deceased and strangulating him to death has been falsified and disproved by the medical evidence. If the deceased would have been done to death by cutting his throat in a room the blood must have sprouted and must have soiled the walls and the roof of the room. The deceased according to Medical Officer was a man of about 40 years of age and was of average built. His blood would not have flowed in such a small quantity that it could have been washed without leaving any stain on the surrounding walls or roof. Moreover it is not possible to believe that a Hindu woman that too goldsmith 'would resort to cutting the dead body of a man who was her husband into pieces. Such a conduct could have been expected from a butcher or habitual criminal, which admittedly the appellant was not. The judicial confession of the appellant was virtually the copy of her Section 161 Cr. P. C. statement. It was recorded without F observing the usual formalities. It is admitted by the Magistrate that both the accused were made to sit in the same room and the confession of one accused was recorded in presence of the other accused. The confession of one accused, if it is recorded in presence of another accused, causes serious doubt on its voluntariness. Similar view wasd taken by the Supreme Court in the case of Dhani Bukhsh v. The State, reported in P L D 1975 SC 187, where it has been stated as under: - "The mode and method of recording the confession of one accused in the presence of the other casts serious doubt on its voluntariness which is the basic requirement of law as also for its appeal to the judicial conscience. The whole object of legal and judicial insistence on the meticulous observance of all the necessary formalities and precautions laid down with minute particularity is to ensure that the confessional statement should be absolutely free from the slightest tinge or taint of extraneous influence such as threat, promise or inducement and the Courts are placed under an obligation to affirmatively satisfy themselves that it is free and voluntary. The way the confessional statement was recorded right in view of his co-accused at a distance of about 30 feet from him possibly within his ear-shot which possibility was of course denied by the' Magistrate and at a time when the confessional statement of the acquitted accused had already been recorded in the admitted presence of confessing accused who was made to stand in a corner of the Court room, it is difficult to infer that the appellant remained altogether uninfluenced by the conduct of his co-accused in the matter of his own confessional x fi-'statement. It is not difficult to appreciate the psychological influence on the mind of the appellant or may be even his guilty conscience, of what had already transpired in Court in his view and within his ear-shot. The preceding confession of his co-accused must necessarily have exercised some persuasive if not compelling force on his mind to follow suit. In that view of the matter, the confessional statement of the appellant cannot be characterised as free and voluntary having been made in an absolutely free and uninhibited manner." In Bano v. The State 1972 P Cr. L J 775 a Bench of Lahore High Court held that where judicial confession of an accused was suffering from defects of form and substance and was retracted at earliest opportunity and was also not corroborated by independent evidence in any material particulars, it cannot be relied upon and the conviction and sentence was set aside: The confessions were retracted at the earliest opportunity and are not supported by independent and reliable evidence. These I confessions do not give a ring of truth and therefore cannot be relied upon.

9. The circumstantial evidence in this case is furnished by the alleged pointation of the room by the appellant and the mat which had a blood stain on 15-2-1977 at about 11-00 a.m. and the discovery of the box at her, instance from a heap of fodder which contained the Kati, rope and hammer. She is also said to have pointed out the parts of dead body and clothes of the deceased at 12-00 noon in Pir Wah Canal. These discoveries do not inspire `any confidence. The absolute absence of blood on the floor, walls or, roof of the room goes in favour of the appellant. The Kati, hammer and rope as well as the clothes were also without any blood stains whatsoever. The recoveries of articles which are not stained with human blood cannot be treated as incriminating. Similar view was taken in 1973 PCr.LJ (AJ&K) 156 (D.B.) Nlst. Kaisari v. Sarkar, where it has been held as under: - "The recovery of the axe at the instance of the accused does not lend any support to the statement of approver as the source of blood could not be identified by the Serologist. It was recovered from the same house where the deceased was done to death. Mst. Kaisari being wife could have knowledge of the axe lying in the house at any particular place. Recovery of the axe at her instance without proof of human blood on it would not lead to an inference of guilt or corroborate the evidence of the approver." Even if the kati and hammer would have been washed the possibility of the presence of human blood on the same could not be ruled out and if they were actually used in the commission of this crime the presence of blood by chemical analysis and microscopic examination could have been detected. The post-mortem report shows that the parts of the dead body had reached the hospital before 9-00 a.m and the post-mortem examination had started at 9-00 a. m. and was completed J by 10-00 a.m. Hence the pointation of the parts of the dead body at 12-00 noon by the appellant would be highly doubtful and against the documentary medical evidence.

10. The motive of the offence was initially given as constant quarrel of deceased Bansimal with appellant Shirimati Seetan on household affairs to an extent that he had stopped giving maintenance in the house and the appellant had been maintaining the house by earnings from cookies, sold through her son. Such quarrels amongst married couples of advanced ages are not uncommon and cannot be considered as a sufficient motive for commission of murder. Having realized this it appears that the persons who were behind the prosecution of the appellant had improved upon the motive at the trial stage by introducing letter Ex.8 alleged to have been written by the deceased to his brother in India who .had sent it back from there. This letter has been produced through Nanki. No doubt P.W. Nanki and P.W. Chandarmai have stated that this tette- is in the handwriting of the deceased but still it was the duty of the prosecution to have examined handwriting Expert to have proved the handwriting of the deceased Apart from this, the envelope, in which this letter was returned from India and the envelope in which it was sent from Pakistan by the deceased have not been produced. The D.P.P. did state that the former envelope was in his possession and he was ready to produce the same, but he did not produce it. Hence the prosecution by not having produced the envelope, which was in its possession, has failed to discharge the burden and has suppressed this important document and the presumption would therefore be that it would have gone against them if it was produced. The appellant was not confronted with this letter in her statement under section 342 Cr.P. C. and was not asked to explain the same. There are two stories about this letter, the first story is given by Nanki, according to which this letter was sent back by Choithmal from India to whom it was written; while the second story is given by Chandarmal who has stated that this letter could not be posted by the deceased and was found lying in his shelf. Nanki has stated for the first time in the trial Court that Jeo Mal used to visit their house which was objected by her deceased father and there used to be quarrel between her father and mother on this account. Three or four months prior to this incident her father started cooking his own meal as once her mother had mixed poison in the milk of her father. A cat had taken that milk and it died then and there. Because of this incident her father was afraid of his life. It may be pointed out that during the investigation there was no-mention of the name of Jeo Mal and the allegation of illicit relations between Jeo Mal and the appellant Shirimat: Seetan was never heard. It is for the first time that P.W. Chandarmal filed a direct complaint on 8-6-1977 alleging that a letter was found by him which could not be posted by the deceased wherein he had written about the illicit relations between the appellant and Jeo Mal. It was only thereafter that Nanki and for that matter the remaining witnesses namely P.Ws. Chandarmal and Mohammad Ismail have put forth the story of illicit connections between Jeo Mal and the appellant Shirimati Seetan. If this story would have been correct nothing could have prevented P.Ws. Nanki, Chandarmal and Mohammad Ismail from disclosing the same before the police at the time of investigation. It appears that throughout there are improvements and additions in the prosecution evidence which have been continued even during the trial of the case. Such inconsistencies, additions and improvements on material points throughout the investigation and even during the trial would shake the confidence of the Court in the bona fides of the prosecution. Mr. Amanullah Qureshi, private counsel for Mangatmal, contended that during the investigation the police records statements of witnesses in a slip-shod manner and therefore omissions in section 161 or 164 Cr.P.C. statements of minor details do not affect the testimony of the witnesses and cannot form basis for rejection of their evidence. He submitted that the credibility of the witnesses is, to be considered in the light of the evidence given by them at the trial as well as other circumstances. In this connection he relied' upon 1971 P Cr. L J 1121 Chakar v. The State, where it was held by a Single Judge of this Court as follows: -- "The statements under section 164, Cr.P.C. are generally recorded in slip-shod manner and such omissions are not unusual. The credibility of the witnesses has to be considered in the light of the evidence which they give at the trial as well as the other circumstances of the case. I am unable to agree with the learned counsel that these omissions could form the basis for the rejection of their evidence or the evidence of the remaining witnesses." There can be no cavil with this legal proposition. But in the present case the inconsistencies, contradictions and improvements are not on minor details but are on material points that go to the root of the case. Inconsistencies, discrepancies and improvements on material points always go against the prosecution and undermine the credibility of the witnesses and cannot be overlooked. This was the view taken in: - (1) 1981 S C M R 132 Nawazali and another v. The State, where Supreme Court had to interfere with the concurrent findings because both the lower Courts had ignored all evidence going against prosecution and set aside the sentence and conviction. (2) 1985 P Cr. L J 2025 (D.B) where there were improvements in prosecution story made by witnesses contradicting Investigating officer and against their own previous statements, the unavoidable inference went against the prosecution and conviction and sentence were set aside.

11. Then there is extra-judicial confession, alleged to have been made by appellant Shirtmati Seetan before P.W. Chandarmal. He has stated that she made the extra-judicial confession in the following words:

"On the night of incident Jewat was with me who was turned out by me from the house and thereafter I with the help of Chandarmal killed the deceased Bansimal." The extra-judicial confession is the evidence of weakest type. Apart from that Chandarmal had not stated about the same in these words in his 164, Cr.P.C. statement. In the 164, Cr.P.C. statement there was no mention of the presence of Jewat in the house and of his being turned out from the house. In his statement in the trial Court immediately thereafter Chandarmal stated that Shirimati Seetan also told him that Jewat had left the house after giving a knife blow to the deceased but the witness had the. audacity to say that the appellant had not stated so and that these words had come out of his mouth by mistake. I am therefore, not prepared to believe this piece of evidence.

12. On a general appraisal of the evidence led by the prosecution in this case I am of the clear view that each and every piece of the prosecution evidence is highly tainted and suspicious and therefore cannot corroborate each other. The investigation appears to be dishonest. There appear to be persons behind the scene who have influenced the investigation and have done good deal of padding in the prosecution evidence even during the trial. It was complained by the counsel for the appellant that this was done by the persons who have devoured enormous amount of gold and ornaments left by the deceased in his safe so that his real heirs may not be in a position to claim back the same I am therefore satisfied that the case against the appellant is highly doubtful. I therefore allow the appeal and set aside the conviction and sentence of the appellant. The appellant is acquitted. She is on bail. Her bail bonds are discharged. M.Y.H/S-167/K Appeal allowed.