High Court allowed appeal acquitting appellant convicted for murder. Found extrajudicial confession unreliable as made under fear/police presence and seized weapons lacked forensic nexus, granting benefit of doubt under Section 302 IPC.
Impugned judgment set aside; appellant acquitted of murder charge; to be set free forthwith as he was in jail.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 254 of 2015
---- Appellant
In Jail
Versus
---- Respondent
For Appellant : Shri Arun Kochar, Advocate. For Respondent/State : Shri Ravindra Agrawal, G.A.
Hon'ble Shri Justice Pritinker Diwaker Hon'ble Shri Justice Gautam Chourdiya
Judgment On Board By Justice Pritinker Diwaker
09/08/2018:
This appeal arises out of the judgment of conviction and order of sentence dated 26.11.2014 passed by the III Additional Sessions Judge, Balodabazar in ST No.37/2014 convicting the appellant under Section 302 of IPC and sentencing him to undergo imprisonment for life and to pay a fine of Rs.500/- with default stipulation.
appellant talking to his wife Hemlata and then chased him carrying axe in his hand. Out of fear the appellant fled from there and took shelter in the house of one Ganesh, who was his maternal uncle in relation. However, in the next morning at about 8.30-9.00 Santosh again chased the appellant, on which the appellant while running away entered the house of Sevakram (deceased) and when Sevakram objected to his entry into his house and started shouting, he (appellant) assaulted him with iron (press) and club as a result of which he died. At that time, PW-5 Ku. Varsha, daughter of the deceased, returned from her school, saw the dead body of her father and then she immediately rushed to the house of her neighbour PW-4 Raju Yadav and informed him about the incident. After seeing the dead body, Raju Yadav in turn informed about the same to Shivram Yadav (PW-1) over telephone and also informed other villagers. In the meanwhile, the appellant was confined in the room by bolting the door from outside by one Deendayal. Further case of the prosecution is that number of villagers had gathered there and in their presence the appellant was shouting that it is he who killed Sevakram by assaulting him with iron (press) and club. Soon thereafter the police also reached there and arrested the appellant from the spot. At 10 am FIR (Ex.P/2) was lodged on 21.3.2014 by PW-1 Shivram Yadav, brother of the deceased, against the appellant u/s 302 of IPC. Thereafter, at 10.15 am merg intimation Ex.P/1 was registered at the instance of PW-1. Inquest over the dead body was conducted vide Ex.P/4 on 21.3.2014 and thereafter the dead body was sent for postmortem which was conducted on the same day by PW-8 Dr. S. Sachdev vide Ex.P/14 who noticed as many as 10 lacerated wounds over right eyebrow with orbital bone fracture, over nasal root with nasal
bone fracture, over left cheek, near right nostril with fracture of maxilla, right side of chin with fracture of mandible, left side of upper lip, left side of lower lip, over occipital region with occipital bone fracture, right middle finger, dorsum left palm; contusion over right side of chest and breaking of upper & lower incisor and canine teeth. In his opinion, the cause of death was complication of intracerebral hemorrhage due to head injury and that the death was homicidal in nature.
On 21.3.2014 memorandum of the accused/appellant was recorded vide Ex.P/6 which led to recovery of one iron (press) and one club having stains like blood. However, there is no FSL report on record. While framing charge, the trial Judge charged the appellant u/s 302 of IPC.
(i) that there is no eyewitness account to the incident and conviction of the appellant is based on circumstantial evidence but none of the circumstances from which inference of guilt of the appellant could be drawn has been proved beyond reasonable doubt and therefore, there
can be no inference that it was the appellant who committed murder of the deceased.
(ii) the main piece of evidence against the appellant is the so-called extra-judicial confession of the appellant before PW-1 Shivram Yadav, PW-2 Harishanka Sahu, PW-3 Dinesh Yadav and PW-4 Raju Yadav, however, a bare perusal of their statements would reveal that they have falsely implicated the appellant.
(iii) it appears that while the appellant was running away from his brother Santosh and entered the house of Sevakram to save himself, the person who had killed the deceased, taking advantage of the situation, might have bolted the door from outside to implicate him in this offence.
(iv) that the appellant had taken a specific plea in his statement u/s 313 of CrPC that when he was passing through the house of the deceased, he saw a girl coming out from the house of the deceased and when he entered the said house, somebody bolted the door from outside and as such, he has been falsely implicated.
(v) that PW-5 Versha who first saw the dead body of the deceased in the house, has categorically stated that when she entered the house, no one was there inside the house nor any voice was being raised by anyone. She also denied to have seen anyone assaulting the deceased. She states that after seeing the dead body, she informed Raju Yadav (PW-4) about the same. In these circumstances, it appears that the appellant has been falsely implicated. Even otherwise the offence of extrajudicial is considered to be very weak in nature unless the same is corroborated by other cogent evidence.
certain articles has been made but in absence of FSL or serological report, the seizure loses its significance.
brother Dinesh Yadav (PW-3) reached the house of the deceased and found the dead body of Sevakram lying in the house. Thereafter, they informed about the same to their grand-father Shivram (PW-1) over telephone from the grocery shop of one Kanhaiya (not examined) and then returned to the place of occurrence. However, by that time, crowd had gathered there, the appellant was confined in the house of the deceased from where he was shouting that he had killed the deceased. In cross-examination, he admits the suggestion that after being informed by PW-5 Versha Yadav, he along with his brother Dinesh reached the spot within 15 minutes and by that time, there was no other person present in the said house, they watched the dead body for about 10 minutes and thereafter went out to inform their grandfather. Even during this period also no person came there and police came to the spot after about half an hour of their arrival. He admits that he has not seen anyone assaulting the deceased and since the appellant was confined in the room, they took him as perpetrator of the crime and that he is also not aware as to who confined him in the room and as to when Deendayal reached the place of occurrence.
there, arrested the appellant and took him to police station.
Munnibai, wife of the deceased, was not present in the house in question at the time of occurrence and had gone to jungle. PW-10 Bhuneshwar Prasad Sahu, Patwari, prepared the spot map Ex.P/9. PW-11 Brajesh Kumar Tiwari, investigating officer, has supported the prosecution case.
'It is settled position of law that extrajudicial confession, if true and voluntary, it can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extrajudicial 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 earlier judgment in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, : 1954CriLJ910 this Court again in Maghar Singh v. State of Punjab, : AIR1975SC1320 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., : 1985CriLJ1862 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 be itself not weaken the case of the prosecution based upon such a confession. In Kishore Chand v. State of H.P., : 1990CriLJ2289 this Court held that an unambiguous extrajudicial confession possesses high probative value force as it emanates from the person who committed the crime and 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 suspicious circumstances to circumvent Sections 25 and 26. The Court is retired 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, : 1990CriLJ2643 . After referring to the judgment in Piara Singh v. State of Punjab, : 1977CriLJ1941 this Court in Madan Gopal Kakkad v. Naval Dubey, : [1992]2SCR921 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.'
Nadu, (2012) 6 SCC 403 , the Supreme Court held as under:
“14. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra- judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration.
15.1. In Balwinder Singh v. State of Punjab [1995 Supp. (4)
SCC 259], this Court stated the principle that:
“10. An extra-judicial confession, by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extrajudicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance.”
15.2 In Pakkirisamy v. State of T.N. [(1997) 8 SCC 158], the
Court held that:
“8. ...It is well settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession.”
15.3. Again in Kavita v. State of T.N. [(1998) 6 SCC 108], the Court stated the dictum that:
15.4. While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extrajudicial confession, this Court in the case of State of Rajasthan v. Raja Ram [(2003) 8 SCC 180] stated the principle that:
The Court, further expressed the view that:
“19. ... Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused...”
15.5. In the case of Aloke Nath Dutta v. State of W.B. [(2007) 12 SCC 230], the Court, while holding the placing of reliance on extra-judicial confession by the lower courts in absence of other corroborating material, as unjustified, observed:
“87. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that for the said purpose the court has to satisfy itself in regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession; (iii) corroboration.
XXX XXX XXX
15.6. Accepting the admissibility of the extra-judicial confession, the Court in the case of Sansar Chand v. State of Rajasthan [(2010) 10 SCC 604] held that :-
“29. There is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material. [Vide Thimma and Thimma Raju v. State of Mysore, Mulk Raj v. State of U.P., Sivakumar v. State (SCC paras 40 and 41 : AIR paras 41 & 42), Shiva Karam Payaswami Tewari v. State of Maharashtra and Mohd. Azad v. State of W.B.]
has been corroborated by the other material on record. We are satisfied that the confession was voluntary and was not the result of inducement, threat or promise as contemplated by Section 24 of the Evidence Act, 1872.”
15.7. Dealing with the situation of retraction from the extrajudicial confession made by an accused, the Court in the case of Rameshbhai Chandubhai Rathod v. State of Gujarat [(2009) 5 SCC 740], held as under :
“53. It appears therefore, that the appellant has retracted his confession. When an extra-judicial confession is retracted by an accused, there is no inflexible rule that the court must invariably accept the retraction. But at the same time it is unsafe for the court to rely on the retracted confession, unless, the court on a consideration of the entire evidence comes to a definite conclusion that the retracted confession is true.”
15.8. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it. [Ref. Sk. Yusuf v. State of W.B. [(2011) 11 SCC 754] and Pancho v. State of Haryana [(2011) 10 SCC 165].
The principles
i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
ii) It should be made voluntarily and should be truthful.
iii) It should inspire confidence.
iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
vi) Such statement essentially has to be proved like any other fact and in accordance with law.”
(2015) 12 SCC 644 , it has been held by the Supreme Court as under:
“Principles in respect of evidentiary value and reliability of extra-judicial confession have been summarized by this Court in Sahadevan & Anr. vs. State of Tamil Nadu, (2012) 6 SCC 403, which reads as under:-
"i. The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution;
ii. It should be made voluntarily and should be truthful;
iii. It should inspire confidence;
Extra-judicial confession is a weak piece of evidence and the
courts are to view it with greater care and caution. For an extrajudicial confession to form the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. In the case on hand, extra-judicial confession allegedly made to PW-12 does not inspire confidence and cannot form the basis for the conviction.
prosecution. PW-3 Dinesh Yadav in his cross-examination has admitted the fact that when he alongwith Raju Yadav (PW-4) reached the house of the deceased, nobody was present in the said house and that Deendayal reached there after about five minutes of their arrival. He has further admitted the suggestion that when the villagers were shouting for beating the appellant, the appellant was requesting them to open the door and saying as to why he has been confined.
present crime based on the evidence adduced by it beyond all reasonable doubt and being so, he is entitled to be acquitted of the charge by giving him benefit of doubt.
Sd/
Sd/-
(Pritinker Diwaker) (Gautam Chourdiya) Judge Judge
Khan
3 issues framed by the court
Whether an extra-judicial confession made under fear and pressure of villagers can form the basis of conviction.
Whether prosecution proved the guilt of the appellant beyond reasonable doubt given lack of FSL reports on seized evidence.
Whether extra-judicial confession inspires confidence and is voluntary in circumstances where police was present.
Colour shows how this judgement treated each authority
Gura Sinah v. State of RajasthanReferred¶42
Gura Sinah v. State of Rajasthan (2001) 2 SCC 205 · Who else cites this
Maghar Singh v. State of PunjabReferred¶43
Maghar Singh v. State of Punjab, : AIR1975SC1320
Kishore Chand v. State of H.P.Referred¶43
Kishore Chand v. State of H.P., : 1990CriLJ2289
Baldev Raj v. State of HaryanaReferred¶43
Baldev Raj v. State of Haryana, : 1990CriLJ2643
Madan Gopal Kakkad v. Naval DubeyReferred¶43
Madan Gopal Kakkad v. Naval Dubey, : [1992]2SCR921
Sahadevan and another v. State of Tamil NaduExplained¶45
Sahadevan and another Vs. State of Tamil Nadu, (2012) 6 SCC 403 · Who else cites this
Balwinder Singh v. State of PunjabReferred¶49
Balwinder Singh v. State of Punjab [1995 Supp. (4) SCC 259] · Who else cites this
Pakkirisamy v. State of T.N.Referred¶52
Pakkirisamy v. State of T.N. [(1997) 8 SCC 158] · Who else cites this
Kavita v. State of T.N.Referred¶55
Kavita v. State of T.N. [(1998) 6 SCC 108] · Who else cites this
State of Rajasthan v. Raja RamReferred¶57
State of Rajasthan v. Raja Ram [(2003) 8 SCC 180] · Who else cites this
Aloke Nath Dutta v. State of W.B.Referred¶61
Aloke Nath Dutta v. State of W.B. [(2007) 12 SCC 230] · Who else cites this
Sansar Chand v. State of RajasthanReferred¶65
Sansar Chand v. State of Rajasthan [(2010) 10 SCC 604] · Who else cites this
Rameshbhai Chandubhai Rathod v. State of GujaratReferred¶69
Rameshbhai Chandubhai Rathod v. State of Gujarat [(2009) 5 SCC 740] · Who else cites this
Sk. Yusuf v. State of W.B.Referred¶71
Sk. Yusuf v. State of W.B. [(2011) 11 SCC 754] · Who else cites this
Pancho v. State of HaryanaReferred¶71
Pancho v. State of Haryana [(2011) 10 SCC 165] · Who else cites this
Vijay Shankar v. State of HaryanaExplained¶80
Vijay Shankar Vs. State of Haryana, (2015) 12 SCC 644 · Who else cites this
2 provisions across 2 enactments
Dilip Sonwani
State Of Chhattisgarh
Pritinker Diwaker
Gautam Chourdiya
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
