Kanwaljit Singh Ahluwalia, JChhaju Ram (P.W.1) was married with Chhamli Devi. From the loins of Chhaju Ram and womb of Chhamli Devi two sons namely, Rameshwar (P.W.7) and Netram deceased were born. Both the brothers were married with two sisters namely Prem Devi and Madhu Devi accused appellants and daughters of Devi Sahai. Rameshwar (P.W.7) was married with Prem Devi, whereas Netram was married with Madhu Devi. The case of the prosecution is that on 23.3.2007, Netram went to the house of his in-laws and in the morning of 24.3.2007, he left in-laws house and thereafter was not found. On 29.3.2007, Chhaju Ram (P.W.1) had submitted a missing report (Exhibit-P/1) before Mohan (P.W.12), who was then posted as SHO, Police Station Narainpur, District Alwar. Thereafater, on 5.4.2007 at 7:30 PM, he had submitted a written report (Exhibit-P/2) before Mohan (P.W.12), on the basis of which a formal FIR (Exhibit-P/3) bearing No. 16/07 was registered at Police Station Narainpur, District Alwar. According to the prosecution, Prem Devi and Madhu Devi were having illicit relations with Ramniwas and Murli, respectively and furthermore, Devi Sahai father of two sisters namely Prem Devi and Madhu Devi, along with paramour Murli and Ramniwas had facilitated murder of Netram. On the basis of above allegations, Madhu Devi, Prem Devi along with their paramour Murli, Ramniwas and father Devi Sahai were sent for trial.

2. The court of Additional Sessions Judge (Fast Track) No. 1, Alwar, vide impugned judgment dated 6.9.2010 acquitted Ramniwas of offence under Section 109 and 302 read with Section 120-B IPC and acquitted Devi Sahai of offence under Sections 109 IPC. However, the trial court held Murli S/o. Matadeen, Madhu Devi and Prem Devi both daughters of Devi Sahai guilty of offence under Sections 302 and 201 IPC. The trial court having convicted Murli, Prem Devi and Madhu Devi for the aforesaid offences, vide a separate order of even date sentenced them as under:-

"U/s 302 IPC- to undergo life imprisonment and to pay a fine of Rs. 5,000/- each, in default of payment of fine to further undergo one year additional imprisonment.

U/s 201 IPC- to undergo five years S.I. and to pay a fine of Rs. 2,000/-, in default of payment of fine to further undergo six months additional imprisonment."

All the sentences were ordered to run concurrently.

3. Aggrieved against their conviction and sentence the appellant Murli preferred D.B. Criminal Appeal No. 728/2010, whereas Prem Devi and Madhu Devi instituted D.B. Criminal Appeal No. 751/2010 assailing their conviction pronounced and sentence awarded by the trial court vide impugned judgment dated 6.9.2010. The complainant Chhaju Ram had filed D.B. Criminal Appeal No. 44/2011 to assail the acquittal of Devi Sahai and Ramniwas. Since in all the three appeals common judgment has been assailed, we shall decide all the three appeals together.

4. In missing report (Exhibit-P/1), Chhaju Ram (P.W.1) stated that his son on 23.3.2007 had gone to the house of in-laws to bring back his wife Madhu Devi. They waited for him till 26.3.2007, thereafter, made inquiries from his in-laws, who disclosed that Netram came and thereafter he had left their house and they are not aware about his whereabouts.

5. Chhaju Ram (P.W.1) on 5.4.2007, submitted the written report (Exhibit-P/2) on the basis of which formal FIR (Exhibit-P/3) was registered. The said written report (Exhibit-P/2) when translated into English, reads as under:-

"To

SHO, Narainpur (Alwar).

Subject:- for lodging First Information Report.

Sir,

I Chhaju Ram S/o. Gopal by caste Gurjar, resident of Dhani Bahlot Tan Kharkadi, Tehsil Thanagazi, Police Station Narainpur, Alwar. Sir, it is submitted that on 23.3.2007 my son Netram had gone to bring back his wife from the house of his in-laws in Bisa Ka Bas (Nimadi). He had not returned till today. Yogesh Khatik resident of Kharkadi on 25.3.2007 informed me that Netram and his brother-in-law had gone to earn their livelihood. Then I had gone to the house of my son-in-law and searched for Netram. I was informed by him Netram had not come to him. Thereafter, I again went to the house of in-laws we were informed by mother-in-law of Netram that Netram came in the morning of 24.3.2007. He slept for the night in the house. In the morning at what time he woke up and left the house, she was not aware. I was informed by his father-in-law, Devi Sahai that in the morning Netram was with them, then they came to bus stand Nimadi. He left him there and thereafter, nothing is known to him.

Few days ago, Murli S/o. Matadeen, resident of Bisa Ka Bas had come to our house. He had gifted a mobile to Madhu Devi. Two days later, Madhu Devi went to her maternal house. After the marriage of Netram, whenever Madhu Devi was at our house, Murli used to visit us. My son saw Murli and Madhu sleeping together. Murli had threatened him that in case he tell this to anybody, he will be liquidated. This was told to me by my son. Thereafter, Murli had given beating to my son in the fair of Talvriksh Hanumanji. Murli had threatened that he and Ramniwas bricklin owner have relations and they will remain as it is and Netram cannot harm them. Prem Devi wife of my elder son, from the last two years is also living at his fathers house. She is not being sent. Hence, from above facts, I not only have doubt but believe that my son Netram has been murdered by Devi Sahai, Shri Ram, Latta, Omi, Madhu, Prem and Birdi and Murli S/o. Matadeen and Ramniwas and either he has been murdered or has been abducted.

Therefore, I poor person requests to you that legal action be taken against above persons and my son be got recovered dead or alive."

6. On the basis of above written report (Exhibit-P/2) formal FIR (Exhibit-P/3) bearing No. 16/07 was registered at Police Station Narainpur for offence under Section 143, 365 and 120-B IPC, investigation commenced and during investigation Murli and Madhu were arrested on 10.4.2007 vide arrest memo Exhibit-P/13 and Exhibit-P/14 respectively. Smt. Prem Devi and Ramniwas were arrested on 11.4.2007 vide Exhibit-P/55 and Exhibit-P/56 respectively. Devi Sahai was arrested on 15.4.2007 vide memo Exhibit-P/15.

7. On the basis of disclosure statements made by Murli and Madhu vide Exhibit-P/57 and Exhibit-P/58 respectively, the dead body/skeleton was recovered from the well in village Dwarpura vide memo Exhibit-P/9.

8. According to Dr. Phool Singh Choudhary (P.W.17), the dead body was not identifiable. It has also come in evidence that only skeleton was recovered. In the present case, the first and foremost issue which this Court has to determine is whether Netram S/o. Chhaju Ram (P.W.1) has died and if so, whether the dead body/skeleton recovered was of Netram son of Chhaju Ram (P.W.1) and Chhamli Devi or not

9. The prosecution to secure conviction of appellants had relied upon motive, evidence of extra-judicial confession, last seen and recovery of dead body/skeleton at the instance of appellants Madhu and Murli. We may notice here that the trial court has disbelieved the evidence of extra-judicial confession emerging in the testimony of Yogesh (P.W.2), Banwari (P.W.3) and Krishna (P.W.13). The evidence of motive has emerged in the testimony of Chhaju Ram (P.W.1), father of the deceased Netram, Rameshwar (P.W.7) brother of Netram deceased and other residents of village. To prove evidence of last seen, the prosecution has relied upon the testimony of Shashikant (P.W.19) and Amar Singh (P.W.20).

10. First we will take note of medical evidence and shall examine as to whether the skeleton recovered was of Netram and whether the prosecution has proved by leading evidence that deceased has expired or has been murdered

11. Dr. Phool Singh Choudhary (P.W.17) on 10.4.2007 being posted as Medical Jurist being member of Medical Board along with Dr. V.R. Mathur, had conducted autopsy on the dead body. He has proved on record the Post Mortem Report (Exhibit-P/50). It is noted in the Post Mortem Report that the body of subject was decomposed and was fully autolysed. Head was separated from body at junction of skull and cervical vertebrae. Left lower limb was separated from hyoid bone. Eyes were absent. Left upper limb was separated at shoulder joint. Right upper limb was separated from scapula. Few maggots were present at place of body. Wall, ribs and cartilages being soft tissues - skin muscles, vessels were autolysed and decomposed. Pleura was autolysed and decomposed. Larynx, trachea, right and left lung, pericardium, heart and large vessels, abdomen walls, peritonium, mouth pharynx and oesophagus, stomach and its contents, small and large intestines and their contents, liver, spleen, both kidneys, bladder and genital organs internal and external were also autolysed and decomposed. In the Post Mortem Report (Exhibit-P/50), following two injuries were noted on the person of deceased:-

"(i) Blackening present on parietal region in 10 x 3 cm area.

(ii) Temporo-parietal structure loose on right side in 2cm length."

12. As per opinion of the Medical Board, no definite opinion regarding cause of death could be given. Blackening of skull showed burning of the body. The Board further opined that skeleton was of male, aged 20-25 years.

13. In cross-examination, Dr. Phool Singh Choudhary (P.W.17) admitted that it was difficult to identify the dead body. This witness further admitted in the cross-examination that the dead body was not identifiable. The exact words of the witness (P.W.17) are as under:-

14. Dr. Phool Singh Choudhary (P.W.17) in the court further deposed that bones of the dead body were taken for DNA fingerprinting. This witness further opined that as per report of SFSL (Exhibit-P/51) no poison was found in the viscera of the deceased. On 25.5.2007, he had taken blood samples of Chhamli Devi wife of Chhaju Ram (P.W.1). He had also taken specimen fingerprints of Chhamli Devi (Exhibit-P/52). Similarly, blood sample of Chhaju Ram (P.W.1) was taken vide memo Exhibit-P/53 along with his fingerprint for DNA profiling. Dr. Phool Singh Choudhary (P.W.17) further stated that he had received report of DNA Test and as per report (Exhibit-P/54), the dead body found was not of son of Chhaju Ram (P.W.1) and his wife Chhamli Devi. It will be apposite here to reproduce the report of DNA (Exhibit-P/54) as under:-

"Conclusion

The DNA test performed on the exhibits provided is sufficient to conclude the DNA profile of the source of exhibit A (bone powder) is not from the biological son of the sources of exhibit B (smt Chamli Devi) and exhibit C (shri Chaju Ram)."

15. Chhaju Ram (P.W.1) appearing in the court has also admitted that only bones were recovered without any skin. However, he feigned ignorance whether he had identified the dead body before the police or not The exact words of the witness (P.W.1) are as under:-

16. Thus, it is apparent that the skeleton which was recovered from the well was not of son of Chhaju Ram (P.W.1) and his wife Chhamli Devi. Therefore, on the basis of skeleton recovered, the prosecution has failed to prove death of Netram. We are equally cautious that recovery of corpus delicti is not necessary to infer murder. Therefore, we will proceed with the prosecution evidence to arrive at the conclusion whether the prosecution has succeeded to prove that Netram was only murdered by the appellants or not

17. Now, we shall take evidence of extra-judicial confession.

18. Banwari (P.W.3) in the court deposed that deceased Netram was brother of his wife. Netram was married at Bisa Ka Bas (Nimania). Devi Sahai accused is father-in-law of Netram. On 27.3.2007, Rameshwar (P.W.7) eldest brother of his wife came to his village and inquired about Netram. This witness stated that Rameshwar told him that earlier he had received a telephonic call from Netram and he had stated that he is going to house of brother-in-law (husband of sister) for earning livelihood at Delhi. Rameshwar further told that four days ago, Netram had gone to the house of his in-laws and thereafter, he had not returned. This witness and Rameshwar had gone to search for Netram. This witness stated that name of wife of Netram is Madhu Devi, whereas name of wife of Rameshwar is Prem Devi. While searching they reached near bricklin of Ramniwas, where he was standing alone with Murli. Murli was saying to Ramniwas that "on your asking, I have done the work of Netram, now it is for you to save us or get punished". This witness stated that hearing above conversation, he had asked Murli that they are talking about which Netram. Upon which, the accused reprimanded and asked him as to who is he to ask about Netram and turned the witness out from the said place.

19. Krishna (P.W.13) in the court stated that he had seen Prem Devi at the bricklin in the office of Ramniwas before death of Netram. Murli came to bricklin of Ramniwas and told Ramniwas that we should murder Netram. Upon which Ramniwas agreed and said in case murder is done, he will see the consequences.

20. The trial Judge while disbelieving both the above witnesses has given the following reasoning:-

21. We find that the reasoning given by the trial court is just and is possible on the law and facts of the case. We may also add here that Banwari (P.W.3) in the court stated that for the first time, he had given statement to the police on 7.4.2007 and had not narrated the whole facts to the Investigating Officer.

22. Now, we shall deal with evidence of last seen.

23. The prosecution has examined Shashikant (P.W.19) and Amar Singh (P.W.20) to say that they had seen Netram with Ramniwas and Murli.

24. Shashikant (P.W.19) in the court stated that his son had fallen from the roof, therefore, he was treated at Jaipur. He was suffering from urinary problem. Amar Singh (P.W.20) came to his house and told him that they should visit Hanumanji Ka Mandir in Dhani Jaisingpura near Bairath to seek blessings of Hanumanji for curing the ailment of his son Shubham. This witness stated that he along with Amar Singh (P.W.20) had gone to temple. When he was returning to village in the evening at 5:00-6:00 PM, he had seen Netram and Ramniwas together and Murli was standing at a distance of 10/5 steps. They were returning to their village, while sitting on the roof of jeep.

25. In cross-examination, this witness stated that he had told about the last seen to the police after 1 1/2 or 1 3/4 months. The exact words of the witness are as under:-

26. Thus, long delay in giving information regarding evidence of last seen to the police, to us is fatal to the prosecution. Shashikant (P.W.19) had admitted that he was daily visiting police and he had participated in the agitation to pressurize the police to find whereabouts of the deceased. Curiously enough, this witness had not disclosed to the police officials about the fact that he had seen Ramniwas and Murli last with Netram deceased. This witness stated in the court that after 3/4 days when the rumour regarding murder of Netram had spread out, he had told family members of Netram that he had seen Netram at Nimadi bus stand, but as to why this fact was not disclosed by the family members to the police, there is no explanation. This witness further stated that since the police was not taking any action, he along with villagers had gone to the police station. He had come to the police station 2 to 4 times. They have also done Ghairav of the police station. This witness further stated that he heard that the police jeep was burnt. This witness further admitted to be correct that the residents of village had threatened the Investigating Officer and Dy. Superintendent of Police. He further admitted that he had given threat to the police that dead body be recovered otherwise, they will set the police station on fire. This witness stated that after 5/7 days of going to the police station, he had informed that he had seen Netram deceased along with Ramniwas etc. at Nimadi bus stand.

27. Similarly, Amar Singh (P.W.20) reiterated as to what was stated by Shashikant (P.W.19). However, this witness in cross-examination stated that after he learnt about the murder of Netram, he had gone to the police station twice or thrice and he had disclosed to the police that he had seen Netram last with Ramniwas and Murli. However, the trial court had given a note that except the statement dated 11.5.2007 made by the witness to the police, no other statement made by him is available on record. Thus, we are of the view that the evidence of last seen for the first time surfaced on 11.5.2007, one month after the recovery of dead body on 10.4.2007, whereas, the occurrence pertains to 23/24th, March, 2007. Thus, the conduct of the witnesses is not acceptable for relaying upon evidence of last seen after such a long delay. Apparently, the evidence of last seen has been coined later, as a result of consultations and deliberations. Therefore, we are of the opinion that this piece of evidence can also not be taken into consideration as it is not safe to rely on the statement of Shashikant (P.W.19) and Amar Singh (P.W.20).

28. Now, we shall deal with the recovery effected at the instance of accused.

29. Chhaju Ram (P.W.1) had admitted that on the second and third day, after his son had left the house, he had lodged the missing report (Exhibit-P/1). Thereafter, he had lodged the written report (Exhibit-P/2). The Investigating Officer assured him that two days time be granted to him and he will search for the dead body. Thereafter, four/five persons of the village had gone to Ashram of Guru Prasannadas. Thereafter, Ramniwas told the police that the dead body of Netram is in the well. The police recovered the dead body and made a telephonic call to Shrawan Singh. Then Shrawan Singh called him and took him to the well. There number of persons had gathered and the dead body was recovered from the well. The exact words emerged in the testimony of witness are as under:-

30. Rameshwar (P.W.7) in the court stated that before the recovery of dead body accused were already in custody for about 17/18 days.

31. Raghuveer Saini (P.W.18) is the investigating officer. This witness stated that Murli suffered disclosure statement (Exhibit-P/57) on 10.4.2007 at 7:15 AM, wherein he stated that the dead body of Netram wearing light pink vest, half burnt blue colour underwear was kept in a jute bag and the said jute bag was thrown in a well of Ramlal, in jungle of Dwarpura. To similar effect is the disclosure statement (Exhibit-P/58) made by accused Madhu Devi on 10.4.2007 at 7:25 AM. In pursuance of both the disclosure statements (Exhibit-P/57 and Exhibit-P/58) both the accused got the dead body recovered from a well vide memo Exhibit-P/9.

32. Matadeen (P.W.4) witness to the recovery memo (Exhibit-P/9) of dead body, in the court stated that well was having water upto height of 2-3-4 feet and the dead body was seen floating in the water of the well. This witness further stated to be true that the dead body not identifiable and same was identified from watch, underwear and vests. This witness further stated that such underwear, vests and watch are easily available in the market.

33. Gendaram (P.W.5) another witness to the recovery memo (Exhibit-P/9) in the court stated that on 10.4.2007, in the morning at 6:00 AM, he received a telephonic message from the police station that the dead body of Netram has been found, therefore, he should come to the police station. Upon which, this witness had gone to the police station. When he reached at the police station, at that time, Prem Devi, Madhu Devi, Ramniwas and Murli were sitting in the police station and police personnel told that they are taking accused at the place which has been disclosed by the accused where the dead body was thrown.

34. Two disclosure statements (Exhibit-P/57 and Exhibit-P/58) have been made on 10.4.2007 at 7:15 and 7:25 AM, respectively. Gendaram (P.W.5) stated that he received information from the police regarding recovery of dead body at 6:00 AM and if this statement is read with the statement of Matadeen (P.W.4), who in the court stated that the dead body was floating in the water, then only inference which can be drawn that the police knew about the place where dead body was lying and both the disclosure statements are manipulated.

35. In the case of Harjit Singh and Others Vs. State of Punjab, AIR 2002 SC 3040 : (2002) 3 Crimes 158 : (2002) 6 JT 123 : (2002) 5 SCALE 644 : (2002) 6 SCC 739 : (2002) 1 SCR 581 Supp : (2002) AIRSCW 3393 : (2002) 5 Supreme 378 , a Division Bench of this Court of which one of us (Kanwaljit Singh Ahluwalia, J.) was a Member relying upon the judgment of the Honble Apex Court in the case of Rameshwar and Dinesh @ Pillu v. State of Rajasthan, D.B. Criminal Appeal No. 158/2010, decided on 10.11.2014, has observed as under :-

"Having appreciated the evidence of the witness, it is to be noted that disclosure statement Ex-P/22 as made by Munesh is not attested by any witness what to say of any independent witness. Ex. P/22 is recorded on 31st July, 2006 at 11 P.M. It is only signed by SHO Police Station, Bhusawar Distt. Bharatpur. It was held in Harjit Singh and Others Vs. State of Punjab, AIR 2002 SC 3040 : (2002) 3 Crimes 158 : (2002) 6 JT 123 : (2002) 5 SCALE 644 : (2002) 6 SCC 739 : (2002) 1 SCR 581 Supp : (2002) AIRSCW 3393 : (2002) 5 Supreme 378 that disclosure statement should be signed by independent person and Investigating officer should not associate any eye witness with the recovery memos. In the present case, no witness was associated at the time when disclosure statement was made. It is necessary for the prosecution to prove that the disclosure statement was made voluntary without any duress or coercion. To justify voluntary character of disclosure statement, it ought to be recorded in the presence of witnesses, it is to be noted that Section 27 of Indian Evidence Act is an exception to Section 25 of the Indian Evidence Act which says that nothing stated to police is admissible in evidence. Since Section 27 carve out an exception, it is necessary that prosecution must show some material to the Court to be satisfied that same was not fabricated, therefore, it is necessary that it should have been made in presence of some witnesses."

36. In the present case, both the disclosure statements (Exhibit-P/57 and Exhibit-P/58) are not attested by any witness. Thus, it is not safe to rely upon the disclosure statements and the recovery made in pursuance thereof. Be that as it may, even if we assume that the dead body was recovered at the instance of accused, according to the DNA report (Exhibit-P/54), it stands conclusively proved that the dead body was not of Netram son of Chhaju Ram (P.W.1) and Chhamli Devi. Thus, recovery of dead body is of no consequence.

37. Once, we hold that the prosecution has not proved recovery of the dead body of Netram, at the instance of accused, remaining recoveries i.e. Recovery of knife in pursuance of disclosure statement (Exhibit-P/59) and memo Exhibit-P/28 at the instance of Murli recovery of lugadi which was used to wipe the floor of blood in pursuance of disclosure statement (Exhibit-P/60) and memo Exhibit-P/35 are of no consequence. Similarly, recovery of motorcycle and patrol cannot be relied upon. Matadeen (P.W.4) and Gendaram (P.W.5) have not deposed regarding recovery of knife and lugadi. Krishna (P.W.13) another witness to the recovery memos has already been disbelieved by the trial court qua the evidence that he overheard the accused talking about the murder of deceased. Once, this witness could not be relied qua significant part of prosecution evidence, he cannot be believed qua recoveries also. Dhanna witness to the recoveries have not been examined. Thus, we also rule out the recoveries at the instance of the accused out of consideration.

38. So far evidence of motive is concerned, it has come in evidence of Rameshwar (P.W.7), it has also been stated in the FIR that Prem Devi wife of elder son of Chhaju Ram (P.W.1) was staying with her parents for the last two years. Both Chhaju Ram (P.W.1) and Rameshwar (P.W.7) had not specified as to on which date both the daughters of Devi Sahai had left their matrimonial home. We find that regarding illicit relations of Prem Devi and Madhu Devi, neither panchayat was held nor any authority was informed and nor any complaint was made to the relations. Even if otherwise, deceased Netram was aware of illicit relations between Madhu Devi and Murli, there was no need for him to go to the house of in-laws to bring back Madhu Devi to matrimonial home. The story of motive was put later and has been concocted.

39. Thus, seeing from any angle, in the present case, the prosecution has failed to bring any cogent and reliable evidence on record to connect the appellants with the crime.

40. Consequently, as a result of above discussion, D.B. Criminal Appeal No. 728/2010 preferred by Murli and D.B. Criminal Appeal No. 751/2010 instituted by Madhu Devi and Prem Devi are accepted. The conviction pronounced and sentence awarded by the trial court upon the appellants Prem Devi, Madhu Devi and Murli is set aside and they are acquitted of all the charges.

41. Having discarded the prosecution evidence against convicted accused, we are of the view that nothing survives in the appeal [D.B. Criminal Appeal No. 44/2011] filed by Chhaju Ram (P.W.1) against acquittal of Devi Sahai and Ramniwas. Once we have held that the prosecution evidence was not reliable and have acquitted the accused namely Madhu Devi, Prem Devi and Murli, the acquittal of Ramniwas and Devi Sahai cannot be distinguished. Therefore, we are constrained to dismiss D.B. Criminal Appeal No. 44/2011 preferred by Chhaju Ram (P.W.1) also. Thus, D.B. Criminal Appeal No. 44/2011 Chhaju Ram v. State of Rajasthan stands dismissed being devoid of merit.