TMI Blog1978 (8) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... instance of the appellant and set up a tea-stall in a portion of the shop of P.W. Bharat Lal in front of the College. He was assisted in the management of the Shop by his younger brother P.W. Dinesh. Smt. Kapoora whom the deceased married about two years before the date of the occurrence resided in a separate portion of the house belonging to the appellant in village Patra which is about 14 miles from Gorakhpur. The deceased used to accompany the appellant every evening to his village and to return to Gorakhpur next morning. Some two months before the occurrence the appellant who was a widower started casting evil-eyes on Kapoora and making indecent overtures to her. He would often talk in disparaging terms to Kapoora about the deceased and tell her that she would have a comfortable and happy life if she agreed to live with him. Once when Kapoora was alone in the house, the appellant went near her cot at about 9 or 10 p.m. and caught hold of her hands with a view to commit criminal assault on her but she hurled abuses at him and succeeded in extricating herself by pushing him aside. About 4 or 5 hours later on the same night, the appellant made another attempt to have sexual inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deceased, the appellant told her that he had not accompanied him because he was having stomach ache. The appellant chided Kapoora a little later for being morose and glum without her husband. Next morning the appellant left for Gorakhpur as usual and came back alone the same evening. On Kapoora's asking him as to why the deceased had not come, the appellant tauntingly told her as to how he would earn his livelihood if he would come back daily to the village. Earlier in the day when P.Ws. Dinesh and Bharat Lal inquired from him at the tea stall at Gorakhpur about Gorakh, the appellant told Dinesh that Gorakh had stayed behind as he was having an abdominal pain. On 4th and 5th of September, 1974 also, the appellant went to Gorakhpur in the morning and returned alone therefrom in the evening. While working in his field on the morning of Sept. 3, 1974, P.W. Shyam Lal was informed by one Mohammad that a dead body was lying in a pit near the field of Phool Chand. On receipt of this information, Shyam Lal went to the place indicated by the informant and saw a mutilated, disfigured, swollen, and unidentifiable dead body having a number of injuries on the left forearm, neck and other pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wound 6 X 4 Trachea, oesophagus and external and internal carolid vessels deep on both sides of neck and front. All above scrochin cut through and through cleanly. The wound was on left side. 2. Incised wound 1 X 1/4 on outer part of middle of left pina, skin and cartilage both cut through and through. 3. Abrasion wound area of 8 X 8 in front abdomen. 4. Abrasion wound area of 4 X 4 in front and middle of chest. 5. Incised wound 41/2 X 2 X muscle deep front of outer side of left forearm 3-3/4 X (3-3/4 ) above wrist joint. 6. External Organs of Generation. 3. The doctor made the following additional remarks on the post-mortem report:- Sealed bundle one underwear, one silk pyjama piece and one langot sealed and handed over to accompanying constable.' 4. In the opinion of the doctor, the death of the dead body brought to him was due to shock and haemorrhage resulting from the above noted injuries. The doctor was further of the opinion that the injury on the neck of the dead body was sufficient in the ordinary course of nature to cause the death and that injuries Nos. 1, 2 and 5 could be caused by Banki (Exh. 6). 5. After de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant and the prosecution case rests entirely on circumstantial evidence. It is also true that before a confessional statement made under Section 164 of the CrPC can be acted upon, it must be shown to be voluntary and free from police influence and that the confessional statement made by the appellant in the instant case cannot be taken into account, as it suffers from serious infirmities in that (1) there is no contemporaneous record to show that the appellant was actually kept in jail as ordered on Sept. 6, 1974 by Shri R.P. Singh, Judicial Magistrate, Gorakhpur, (2) Shri R.P. Singh who recorded the so called confessional statement of the appellant did not question him as to why he was making the confession and (3) there is also nothing in the statement of the said Magistrate to show that he told the appellant that he would not be remanded to the police lock up even if he did not confess his guilt. It cannot also be gainsaid that the circumstantial evidence relied upon by the prosecution must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. 11. In the present case, however, the following pieces of un-impeachable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt. 1 and 2, 1974 and his arrest by the Police in connection with the offence for which he has been convicted. Whereas on his arrival at the aforesaid unearthly hour at his house on the night intervening Sept. 1 and 2, 1974 he told Kapoora in reply to her query that the deceased had not come from Gorakhpur as he was having stomach pain, in answer to a query made by Dinesh and Bharat Lal on the morning of Sept. 2, 1974 at Gorakhpur, he told them that the deceased had remained be hind in his village as he was having abdominal pain. The assurance sought to be conveyed by the appellant to Kapoora through Satyanarayan when the latter went to Gorakhpur at the behest of Kapoora to enquire about the where abouts of the deceased is also not with out significance. Purchase of Banki (Exh. 6) by the appellant. 18. The purchase of Banki (Exh. 6) by the appellant before the occurrence is proved from the evidence of P.W. Vishwanath. The recovery of Banki (Exh, 6) at the instance of the accused. 19. It stands proved from the evidence of S.I. Anand Prakash and P.W. Shyam Lal that, Banki (Exh. 6) was re covered on Sept. 5, 1974 from a box lying in the room admittedly belonging to and in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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