Partly allowed

Kartikram v. the State of M.P.

Chhattisgarh HC7 Aug 2012CRA/937/1996

Case brief

AI extract

What is this about?

Appeals against conviction under Section 302 IPC for murder. Held Jaisingh guilty based on credible extra-judicial confession and seized weapons. Held Kartikram acquitted as evidence was insufficient and confession could not sustain conviction alone.

What did the court decide?

Conviction and sentence of Kartikram set aside and he is acquitted. Bail bonds cancelled. Conviction of Jaisingh affirmed.

Kartikram Vs the State of M.P. — Murder and Culpable Homicide | Chhattisgarh HC (2012)

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HIGH CQURT QF CHHATTISGARH AT BILASPUR

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D.B.: Hon'ble Shri Justice Sunil Kumar Sinha and Hon'ble^hri Jystice Radhe Shyam Sharma

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.fs

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Criminal Appeal No.936 ofl996 Jaisingh versus State of Madhya Pradesh (Now Chhattisgarh)

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Criminal Appeal No.937 of 1996 Kartikram versus State of Madhya Pradesh (Now Chhattisgarh)

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JUDGMENT FOR CONSIDERATION

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Sd/^S. Sharaia Judge

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Hon 'ble Shri Sunil Kumar Sinha. J.:

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SdA " Sunii Kiiniar Sinha Judge

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Postfor 9--08-2012

Sd/JUDG&^7-08-2012

.'^s^?-^ -^ WSS-f S •^?"J./ ,-x .'l^

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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D.B.: Hon'ble Shri Justice Sunil Kumar Sinha and Hon'ble Shri Justice Radhe Shyam Sharma

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Criminal Appeal No.936 ofl996

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Appellant

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Jaisingh, son of Baliram Dhanwar, aged about 36 years, occupation labourer, resident of Semarapali, Police Station Sarangarh, District Raigarh

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versus

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Respondent

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State of Madhya Pradesh (Now Chhattisgarh)

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Present:

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Smt. Savita Tiwari, counsel for the appellant. Shri J.A.Lohani, Panel Lawyerforthe State/respondent.

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Criminal Appeal No.937 of 1996

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Appellant

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Kartikram, son of Nankiram Dhanwar, aged about 30 years, occupation labourer, resident of Semarapali, Police Station ^arangarh, District Raigarh

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versus

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Respondent

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State of Madhya Pradesh (Now Chhattisgarh)

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Present:

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Smt. Savita Tiwari, counsel for the appellant. Shri JA.Lohani, Panel Lawyerforthe State/respondent.

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Criminal Appeals under Secfion 374(2) of the Code of Criminal Procedure

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JUDGMENT ^. / (Delivered on _2^August, 2012) "^,

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Per RadheShvam Sharma.J.:

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These appeals are directed againstjudgment dated 22-2-1996

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passed^{by2"AdditionalSessionsJudge,RaigarhinSessionsTrial} No.41/1995. By theimpugned judgment, accused

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persons/appellants Jaisingh and Kartikram have been convicted under Section 302 read with Section 34 of the Indian Penal Code and sentenced to undergo imprisonment for life.

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Case of the prosecution, in brief, is as under:

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On 11-12-1994, at about 9 P.M., appellant Jaisingh went to Sukhdas (PW-1) and admitted before him that he committed murder of deceased Dhaneshram Bariha a'nd threw his dead body in Sakti Nala. Sukhdas (PW-1) took appellant Jaisingh to Up-Sarpanch Bhagwatiya (PW-4). Appellant Jaisingh admitted his guilt before Bhagwatiya (PW-4) also. Sukhdas (PW-1) lodged report in Police Station Sarangarh. Merg Intimation (Ex.P-1) was recorded in Police Station Sarangarh. The Inyestigating Officer reached the place of occurrence, gave notice (Ex.R-2) to Panchas and prepared inquest (Ex. P-3) on the dead body of the deceased. The dead body was sent to Government Hospital, Sarangarh for post mortem examination vide Ex.P-28. Dehati Nalishi (Ex.P-29) was recorded. Dr. S.K.Tiwari (PW-7) conducted post mortem examination on the dead body of the deceased and gave his report (Ex.P-15), in which, he found 4 lacerated and 1 incised wounds.

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In further investigation, memorandum statement of appellant Jaisingh was rgcorded under Section 27 of the Evidence Act vide ./ Ex:P-4&nfl at his instance, Tangiya and Lungiwere seized from him vide Ex.P-8. MemorandunT statement of appellant Kartikram was also recorded under Section 27 of the Evidence Act vide Ex.P-13 and Danda was seized from him vide Ex. P-7. Lungi was also seized from him-vide Ex.P-10. Plain soil and blood stained soil were seized

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from the place of occurrence vide Ex.P-11. A tape-recorder was seized from Kamal Singh vide Ex.P-12. Patwari Jawaharlal prepared spot-map vide Ex.P-21. Regular First Information Report (Ex.P-19) was registered in Police Station Sarangarh. The seized articles were sent to Forensic Science Laboratory, Raipur for examination vide Ex.P-30. Report (Ex.P-32) was received therefrom. In Ex.P-32, articles A - Tangi, B - Lungi, C - Danda, E - Stone, F - Danda, G - Blood Stained Soil, 11 - Lungi, 12 - Underwear and 13 - Baniyan were found stained with blood. The above articles were sent for serological examination. Report was received therefrom. In the Serological Report, articles mentioned at SI.No.45, i.e., Lung; (Article B), at SI.No.46, i.e., Danda, at SI.No.49, i.e., blood stained soil, at Sl.No.50, i.e., Lungi and at SI.No.51, i.e., Baniyan were found stained with human blood.

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After completion of the investigation, charge sheet was filed against the appellants in the Court of Judicial Magistrate First Class, Sarangarh, who, in turn, committed the case to the Court of Session, Raigarh, from where it was received on transfer by 2 Additional Sessions Judge, Raigarh, who conducted the trial and convicted and sentenced the appellants as mentmned above.

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Smt. Savita Tjwari, learned counsel for the appellants argued ./ that leamect trfal Court did not properly appreciate the evidence of the prosecutioh witnesses. The'evidence of extra judicial confession is aweak piece of evidence and it is not reliable. The confession made.by bneaccusedcannot be used against co-accused. The

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prosecution utterly failed to prove the guilt against the appellants. The appellants deserve to be acquitted.

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Shri J.A.Lohani, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentenpe awarded by the learned Additional Sessions Judge do not warrant any interference by this Court.

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We have heard learned counsel for the parties at length and have perused the record of Sessions Trial No.41/1995. Admittedly, there is no eye witness to the incident and the case of the prosecution is based on the circumstantial evidence.

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In Bodhraj alias Bodha and others vs. State of Jammu and Kashmir, (2002) 8 SCC' 45,- the Hon'ble Supreme Court has observed as under:

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"17. ........ The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (SCC p. 185, para 153)

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the circumstances from which the conclusion of (1) guilt is to be drawn should be fully established. The cireumstances concerned must or should and not may be established;

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(2) '- the facts so established should be consistent only ^^^^^^^ M/ the hypothesis, of the guilt of the accused, that is to say, the^ should not be explainable on any other hypothesis except that the accused is

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the circumstances should be of a conclusive (3) , .nature and tendency;

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(4)

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they should exclude every possible hypothesis except the one to be proved; and

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(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and 'must show that in all human probability^{the.actmusthavebeendonebythe} accused."

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In Hatti Singh vs. State of Haryana, (2007) 12 SCC 471, the Hon'ble Supreme Court has observed as under:

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"27. In Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172, this Court noticed: (SCC p. 181,paras27-28)

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"27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility'of any person other than the accused being the author of the crime becomes impossible. Even in such a case courts should look for some corroboration.

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In State of U.P. v. Saffs/?, (2005) 3 SCC 114, this Coyrt observed: (SCC p. 123, para 22)

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'22. The last-seen theory comes into play where the time gap between the point of .tirne when the accused and the deceased were last seen alive and when the deceasedjs found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in - some cases to positively establish that the deceased was last seen with the accused

when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to condude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. ..........."

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(See also State of Goa vs. Sanjay Thakran and another, (2007)3 SCC 755.)

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Now, we shall proceed to examine the circumstantial evidence adduced by the prosecution in order to prove the offence against the appellants and to see whether the prosecution has been able to prove the offence against the appellants in conformity with the above principles.

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Sukhdas (PW-1) deposed that on 11-12-1994, in the morning, appellant Jaisingh came to him and told that he killed the deceased. On being asked why did he kill the deceased, appellant Jaisingh told that the deceased had entered his house with intent to commit rape, therefore, he killed him.

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Tularam Pariha (PW-3) deposed that when the deceased reached at the house of appellant Jaisingh, appellant Jaisingh was not present there. The wife of appellant Jaisingh was present inside ,/ the hQuse^,,The deceased was caused to drink liquor and he was detained in the house of ap^llant Jaisingh. The wife of appellant Kartikram shouted that the deceased and the wife of appellant Jaisingh were detained in the house of appellant Jaisingh. On this,

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a panchayat was convened in the village and fine was imposed upon the deceased.

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Looking to the evidence of Sukhdas (PW-1) and Tularam (PW-3), it appears that appellant Jaisingh used to suspect that there was illicit relationship between his wife and the deceased. Therefore, the above circumstance goes to show that there was a motive for appellant Jaisingh to commit murder of the deceased.

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Sukhdas (PW-1) deposed that on 11-12-1994, in the morning, appellant Jaisingh came to him and told that he killed the deceased. On being asked why did he kill the deceased, appellant Jaisingh told that the deceased had entered his house with intent to commit rape, therefore, he killed him. l-1e took appellant Jaisingh toUp-Sarpanch Bhagwatiya (PW-4). On being asked by Bhagwatiya (PW-4), appellant Jaisingh told him that he l^illed the deceased and threw his dead body in Sakti Nala.

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Bhagwatiya (PW-4) deposed that at about 7-8 A.M., Sukhdas (PW-1) brought appellant Jaisingh to him. Appellant Jaisingh told himthat he killed the deceased with a Lathi and threw his dead body in Sakti Nala.

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Extra-Judicigl Confession:

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In Gi/ra Singh vs.State of Rajasthan, (2001) 2 SCC 205, the Hon'ble Supreme Court o'&served as follows:

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"6. It is settled position of law that extrajudicial confessto'n, iftrue andvoluntary, it can be relied upon by the court to convict the accused for the commission of the •- crirEie alleged. Despite inherent weakness of extrajudicial

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confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. Relying upon an earlierjudgment in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1954 SC 322, this Court-again in Maghar Singh v. State of Punjab, (1975) 4 SCC 234, held that the evidence in the form of extrajudicial confession- made by the accused to witnesses cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone. In Narayan Singh v. State of M.P., (1985) 4 SCC 26, this Court cautioned that it is not open to the court trying the criminal case to start with a presumption that extrajudicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time.when the confession is made and the credibility.of the witnesses who speak for such a confession. The retraction of extrajudicial confession which is a usual phenomenon in criminal cases would by itself not weaken the case of the prosecution based upon such a confession. In Kishore Chand v. State of H.P., (1991) 1 SCC 286, this Court held that an unambiguous extrajudicial confession possesses high probative value force as ^t erfianates from the person who committed the crime ^nd is admissible in evidence provided it is free from suspicion and suggestion of any falsity. However, before relying on the'alleged confession, the court has to be satisfied that it is voluntary and is not the result of inducement, threat or promise envisaged under Section 24 of the Evidence Act or was brought about in suspieioys circumstances to circumvent Sections 25 and

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The court is required to look into the surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggesting that it may not be true. All relevant circumstances such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made have to be scrutinised. To the same effect is the judgment in Baldev Raj v. State of Haryana, 1991 Supp (1) SCC 14. After referring to the judgment in Piara Singh v. State of Punjab, (1977) 4 SCC 452, this Court in Madan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204, held that the extrajudicial confession which is not obtained by coercion, promise of favour or false hope and is plenary in character and voluntary in nature can be made the basis for conviction even without corroboration."

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In Aftab Ahmad AnsarFvs. State of Uttaranchal, (2010) 2 SCC 583, the Hon'ble Supreme Court observed as follows: r

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"52. Though extra-judicial confession is considered to be a weak piece of evidence by the courts, this Court finds that there is neither any rule of law nor of prudence that the evidence furnishing extra-judicial confession cannot be relied upon unless corroborated by some other credible evidence. The evidence relating to extra-judicial confession can be actgd upon if the evidence about extra-judicial confession comes from the mouth of a witness who appears to be unbiased and in respect of whpry even remotely nothing is brought out which may tend.to indicate that he may have a motive for attributing an untruthful statement to the accused.

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In Stete ofU.P. v. M.K.Anthony, (1985) 1 SCC 505, this Court, while explaining the law relating to extrajudieial confession, ruled that if the words spoken by the

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witness are clear, unambiguous and unmistakable, one showing that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a convictipn. According to this Court, in such a situation, to go in search of corroboration itself tends to cause a shadow of doubt over the evidence and if the evidence of extra-judicial confession is reliable, trustworthy and beyond reproaching, the same can be relied upon and a conviction can be founded thereon."

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We have carefully perused the evidence of Sukhdas (PW-1) and Bhagwatiya (PW-4). They specifically deposed that appellant Jaisingh went to the house of'Sukhdas (PW-1) and admitted before him that he killed the deceased.- On being asked by Sukhdas (PW1) and Bhagwatiya (PW-4), appellant Jaisingh admitted killing ofthe deceased by a Tangi. Their evidence iscorroborated by the medical evidence too. From the medical evidence, we find that the deceased had sustained 2 incised wounds and 3 lacerated wounds. He died due to shock and haemorrhage and his death was homicidal in nature. Therefore, the circumstantial evidence of extra judicial confession made by appellant Jaisingh before Sukhdas (PW-1) and Bhagwatiya (PW-4) is reliable and can be based for conviction. .. / 17. Now, we shall consider memorandum statements of the appellants and at their instances, seizure of blood stained Tangi from appellant Jaisingh and blood stained Lathi from appellant

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Kartikram.

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Sub-lnspector Shyam Sunder Sharma (PW-17) deposed that he recorded memorandum statements of the appellants under Section 27 of the Evidence Act. At the instance of appellant Jaisingh, Tangi and Lungi were seized from him vide Ex.P-8. Further memorandum statement of appellant Jaisingh was recorded and on the basis thereof, stone and Danthalwere seized from him.

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Jaisingh (PW-2) deposed that memorandum statements of appellant Jaisingh was recorded by Sub-lnspector Shyam Sunder Sharma (PW-17) vide Ex.P-4 and P-6 and at the instance of appellant Jaisingh, Tangi, stone and Danthal were seized from appellant Jaisingh.

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So far as appellant Jaisingh is concerned, he made extra judicial confession before Sukhdas (PW-1 ) and Bhagwatiya (PW-4) and at his instance, Tangi, Danth^l and stone were seized from him. In FSL Report (Ex. P-32), Tangi, stone and Danthal were found stained with blood.

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We have carefully perused the evidence of Sukhdas (PW-1) and Bhagwatiya (PW-4). They specifically deposed that appellant Jaisingh made extra judicial confession before them. In Merg Intimation (Ex.P-1) also, it is mentioned that appellant Jaisingh made extra ji^di^'al confession before them. Therefore, the prosecution has proved that appellan^Jaisingh assaulted the deceased with Tangi.

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^7.

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So far as appellant Kartikram is concerned, only evidence of memorandum statement and recovery of blood stained Lathi from him at his instance is on record.

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Sub-lnspector Shyam Sunder Sharma (PW-17) deposed that on 16-12-1994, he recorded memorandum statement of appellant Kartikram and at the instance of appellant Kartikram, Lathi was seized from him. He further depose'd that the Lathi was sent to FSL, Raipur for chemical examination. Ex.P-32 is the FSL Report. In Ex.P-32, it is mentioned that the Danda (Article B) was stained with blood. In Serological Report also, it is mentioned that the Danda was stained with human blood.

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Now, we shall examine whether the above evidence is sufficient to connect appellant Kartikram to the crime in question?

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Memorandum statement (Ex.P-4) of appellant Jaisingh was recorded on 12-12-2004, in which, it is mentioned as follows:

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"^ tTSff TRT tRftuTT cti|@ct><i|t| •Efpfr •ptcTOT? ypft ^RRT ^N ^r ET^?T ~^ Fi'ldcti^; 3IFFT ^ TTR4te f^4 HSfT 'SWPt' ''11^ 11 ^ ET?RT ~^1 i^c^l^l ^ tISff <t'lR[cb';l*1 'S^S] ^r ~w 11"

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On the basis of memorandum statement (Ex.P-4) of appellant Jaisingh, me.morandum statement (Ex.P-13) of appellant Kartikram was reGQrded and Danda was recovered from appellant Kartikram. Except this, there is no other evidence against appellant Kartikram. 1 Even in extra judicial confession, appellant Jaisingh did notstate anything against appellant Kartikram. He stated against appellant

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,.-....--(

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Kartikram for the first time in his memorandum statement (Ex.P-4) recorded under Section 27 of the Evidence Act.

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In Pancho v. State of Haryana, 2012 Cri.L.J. 832 (SC), the Hon'ble Supreme Court observed as follows:

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"16. ..... This court further observed that Section 30 merely enables the court to take the confession into account. It is not obligatory.-on the court to take the confession into account. This court reiterated that a confession cannot be treated as substantive evidence against a co-accused. Where the prosecution relies upon the confession of one accused against another, the proper approach is to consider the other evidence against such an accused and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused, the court turns to the confession with a view to assuring itself that the conclusion which it is inclined to draw from the other evidence is right. This Court clarified that though confession may be regarded as evidence in generic sense because of the provisions of Section 30 of the Evidence Act, the fact remains that it is not evidence as defined in Section 3 of the Evidence Act. Therefore, in dealing with a case against an accused, the court cannot start with the confession of a co-accused; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to >-/ the donfession in order to receive assurance to the conclusion of guilt wRl&h the judicial mind is about to reach on the said other evidence."

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_ Applying the above principles to the instant case, we find that so far as appellaht Kartikram is concerned, except the evidence of

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belated discovery of Danda at his instance, there is no other evidence on record to connect him to the offence in question. The Danda recovered from appellant Kartikram was found stained with human blood in the Serological Report. The group of blood was not detected. When there is no other evidence on record establishing his involvement, he cannot be convicted on the basis of above solitary circumstance of memorandum statement and recovery of Danda. ;

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So far as appellant Jaisingh is concerned, there is extra judicial confession made by him before Sukhdas (PW-1) and Bhagwatiya (PW-4), which is credible and trustworthy. Therefore, the prosecution has been able to establish that he assaulted the deceased with Tangi apd the- deceased died due to the injury caused by appellant Jaisingh and, therefore, he is liable for punishment under Section 302 IPC.

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For the foregoing reasons, Criminal Appeal No.937/1996 of appellant Kartikram is allowed. His conviction and sentence under Section 302/34 IPC are set aside and he is acquitted of the charge framed against him. His bail bonds are cancelled and sureties stand discharged.

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Soiayas Criminal Appeal No.936/1996 of appellant Jaisingh is concerrred, it has no-.fgrce and is hereby dismissed. The conviction and sentence of appellant Jaisingh under Section 302

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IPC are affirmed.

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sd/- ^ ;.„' \ A.^ »rsva^ A Judge

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Sd/R.S.Sharma Judge

Kartikram v. the State of M.P.

Case brief

What is this about?

What did the court decide?

Kartikram v. the State of M.P.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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