Monu Thawait Vs State Of Chhattisgarh

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HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 1561 of 2015 Judgment reserved on 07/09/2022 Judgment delivered on 11/10/2022

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Mohammad Eliyas S/o Mohammad Shabir, Aged about 21 years, R/o Chhote Masjid Gali, Sarangarh, Tahsil Sarangarh, Civil and Revenue Distt. Raigarh, Chhattisgarh.

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Satish Bareth S/o Jagatram, Aged about 21 years, R/o Chhote Masjid Gali, Sarangarh, Tahsil Sarangarh, Civil and Revenue Distt. Raigarh, Chhattisgarh.

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---Appellants

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Versus

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State of Chhattisgarh through District Magistrate, Raigarh, Distt. Raigarh, Chhattisgarh.

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---Respondent

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For Appellants :- Mrs. Indira Tripathi, Advocate For State :- Mr. Sudeep Verma, Dy. G.A.

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Criminal Appeal No. 1647 of 2015

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Monu Thawait S/o Kishan Thawait, Aged about 22 years, R/o Chirki Gali, Sarangarh, Tahsil Sarangarh, Civil and Revenue District Raigarh, Chhattisgarh.

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---Appellant

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Versus

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State of Chhattisgarh through Station House Officer, Police Station Sarangarh, Distt. Raigarh, Chhattisgarh.

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---Respondent

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For Appellant :- Mr. U.K.S. Chandel, Advocate For State :- Mr. Sudeep Verma, Dy. G.A.

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Criminal Appeal No. 532 of 2016

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Mohd. Bilal S/o Mohd. Shakir, Aged about 21 years, R/o in front of Tahsil Office Sarangarh, Tahsil Sarangarh, Police Station Sarangarh, Civil and Revenue District Raigarh, Chhattisgarh.

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---Appellant

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Versus

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State of Chhattisgarh acting through Officer-in-charge Police Station Sarangarh, Distt. Raigarh, Chhattisgarh.

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---Respondent

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For Appellant	:-	Mr. Manoj Kumar Sinha, Advocate
For State	:-	Mr. Sudeep Verma, Dy. G.A.

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sachin Singh Rajput C.A.V. Judgment

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Sanjay K. Agrawal, J.

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Since all of these criminal appeals have arisen out

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impugned judgment dated 07/11/2014 passed by learned Additional Sessions Judge Sarangarh, Distt. Raigarh in Sessions Trial No. 34/2014, therefore, they have been

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clubbed together, heard together and are being decided by this common judgment.

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The two appellants in Criminal Appeal No. 1561/2015 namely Mohammad Eliyas (A-2) and Satish Bareth (A-4); the sole appellant in Criminal Appeal No. 1647/2015 namely Monu Thawait (A-3); and the sole appellant in Criminal Appeal No. 532/2016 namely Mohammad Bilal (A-1); all have preferred these appeals under Section 374(2) of CrPC calling in question the validity, legality and correctness of the judgment impugned whereby each of them has been convicted for offence punishable under Section 302/34 of IPC and sentenced to undergo life imprisonment with fine of Rs. 1000/- in default to pay fine further R.I. for one year; under Section 364/34 of IPC and sentenced to undergo R.I. for 7 years and fine of Rs. 500/- in default to pay fine further R.I. for six months; and under Section 201/34 of IPC and sentenced to undergo R.I. for 5 years with fine of Rs. 500/- in default to pay fine, further R.I. for six months.

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Case of the prosecution, in brief, is that on the intervening night of 28-29/08/2014 within the ambit of Police Station Sarangarh, the appellants/accused persons, in furtherance of their common intention of causing death of Tiharu Patel, abducted him and strangulated him with a plastic rope on account of which he succumbed to death and thereafter, in order to screen themselves from the offence, drowned the dead body of the deceased in Heerakund Dam and threw

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the shirt worn by him at the time of the incident on the road, and thereby, committed the aforesaid offences.

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Further case of the prosecution is that on 29/08/2014, Nawdhalal Patel (P.W.-1) lodged a report at Police Station Sarangarh that his younger brother Tiharu Patel used to work at Abbas Ali Petrol Pump, Sarangarh and he had married Gauri Patel (P.W.-9) prior to 8-10 years from the incident but they had no issue. Tiharu Patel owned a Bolero bearing No. CG-13-U-2813 and he had kept Mohammad Bilal (A-1) as a driver for the said vehicle for the past three years, who had developed illicit relationship with the wife of Tiharu Patel namely Gauri Patel (P.W.-9) on account of which dispute arose between Mohammad Bilal (A-1), Tiharu Patel (deceased) and his wife Gauri Patel (P.W.-9) frequently and it was known by the whole family of the deceased. On 29/08/2014, Tiharu Patel (deceased) had gone to work in the Petrol Pump but he did not return home at night. When Nawdhalal Patel (P.W.-1) enquired at the Petrol Pump, he was told that his brother Tiharu Patel had returned to go home after completing his work at 8 PM and thereafter, Nawdhalal Patel (P.W.-1) lodged FIR for offence punishable under Section 364 of IPC vide Ex. P/1 and pursuant thereof, the wheels of investigation started running.

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During the course of the investigation, it was found that prior to 5-6 months of the incident, Gauri Patel (P.W.-9), wife of deceased, had given birth to a daughter and on the

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pretext of the daughter being born out of the illicit relationship between Mohammad Bilal (A-1) and Gauri Patel (P.W.-9) which was going on for two years, dispute arose between the appellant/accused Mohammad Bilal (A-1) and the deceased and on that account, on 28/08/2014 at about 08:00 PM, Mohammad Bilal (A-1) along with the three coaccused persons, with the intention of causing death of Tiharu Patel, took him to Mohan Dhaba owned by Mohanlal Chauhan (P.W.-8) on the pretext of giving party and administered sleeping pills in the cold drink/liqour consumed by deceased Tiharu Patel and when he became unconscious, all the four accused persons took him to Heerakund Dam in his Bolero and in the intervening night of 28-29/08/2014, strangulated him with plastic rope and thereafter, drowned his dead body in the dam and threw the shirt worn by the deceased on the National Highway.

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On the basis of the memorandum statement of Mohammad Bilal vide Ex. P/4, the dead body of deceased Tiharu Patel was recovered from Heerakund Dam vide Ex. P/30 and plastic rope was recovered from the spot vide Ex. P/16 and the shirt worn by the deceased was recovered from the Highway vide Ex. P/15. Thereafter, offence punishable under Sections 302 and 201 r/w 34 of IPC were also added in the FIR (Ex. P/1) against the four accused persons and merg intimation was registered vide Ex. P/2. Nazri Naksha was prepared vide Ex. P/26 and inquest was conducted vide

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Ex. P/3. The dead body of deceased Tiharu Patel, after being identified, was subjected to postmortem, which was conducted by Dr. B.P. Sai (P.W.-14) and as per the postmortem report (Ex. P/28), cause of death is said to be asphyxia due to strangulation and nature of death is homicidal.

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Upon further investigation, one black coloured Micromax mobile phone was seized from accused Mohammad Bilal (A1) vide Ex. P/17 and White coloured Bolero vehicle bearing Registration No. CG-13-U-2813 was seized vide Ex. P/5 and one black coloured Nokia mobile phone was seized from accused Monu Thawait (A-3) vide Ex. P/18 and one black coloured Samsung mobile phone was seized from accused Satish Bareth (A-4) vide Ex. P/19. The seized articles were sent for chemical examination vide Ex. P/31 but no FSL report has been brought on record. After due investigation and after recording the statements of the witnesses, the appellants/accused persons were charge-sheeted for offence punishable under Sections 302/34, 364/34 and 201/34 of IPC which was presented before the Jurisdictional Criminal Court and ultimately, it was committed to the Court of Session for hearing and disposal in accordance with law. The appellants/accused persons abjured their guilt and entered into defence.

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In order to bring home the offence, prosecution examined as many as 17 witnesses and exhibited 36 documents on

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record. The statements of the accused persons were recorded wherein they denied guilt, however, they examined none in their defence but exhibited the statements of Nawdhalal Patel (P.W.-1) as Ex. D/1, Lakeshwar Patel (P.W.5) as Ex. D/2 and Ramesh Kumar Patel (P.W.-7) as Ex. D/3.

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Learned trial Court, after appreciating the oral and documentary evidence on record, finding the death of deceased Tiharu Patel to be homicidal in nature and further finding the appellants/accused persons to be the perpetrators of the crime, convicted them for offences punishable under Sections 302/34, 364/34 and 201/34 of IPC and sentenced as aforesaid.

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10. Mr. Manoj Kumar Sinha, learned counsel appearing for appellant/accused Mohammad Bilal (A-1) in Criminal Appeal No. 532/2016, would submit that there is no direct evidence available against accused Mohammad Bilal (A-1) and he has been convicted on the basis of memorandum statement (Ex. P/4) which is inadmissible in evidence. Moreover, the dead body of deceased Tiharu Patel is said to have been recovered by fishermen whereas neither any fisherman nor any witness residing nearby the Heerakund Dam has been examined and the police personnels/Investigating Officer already knew about the dead body of the deceased prior to the memorandum statement of the accused (Ex. P/4) which makes it inadmissible, as such, it could not have been relied upon by

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the trial Court to convict the appellants/accused persons for the aforesaid offences. He would also submit that though the shirt worn by the deceased was recovered from National Highway vide Ex. P/15, but it could not be proved as no FSL report has been brought on record by the prosecution, therefore, the impugned judgment recording conviction of the appellants/accused persons for the aforesaid offences and awarding sentences accordingly is liable to be set aside and the appellants/accused persons deserve to be acquitted of the charges levelled against them.

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11. Mrs. Indira Tripathi and Mr. U.K.S. Chandel, learned counsels appearing for the appellants/accused persons Mohammad Eliyas (A-2), Satish Bareth (A-4) in Criminal Appeal No. 1561/2019 and Monu Thawait (A-3) in Criminal Appeal No. 1647/2015, would submit that only Mohanlal Chauhan (P.W.-8), who is the owner of Mohan Dhaba, has named the appellants/accused persons to be seen with the deceased on the night of the incident, as such, his sole testimony cannot be relied upon. They would further submit that the three appellants/accused persons namely Mohammad Eliyas (A-2), Monu Thawait (A-3) and Satish Bareth (A-4) could not have been convicted on the basis of memorandum statement of Mohammad Bilal (A-1) in accordance with Section 30 of the Evidence Act in absence of any other incriminating evidence available against them in light of the decision rendered by the Supreme Court in

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the matter of Haricharan Kurmi v. State of Bihar 1, as such, the conviction of Mohammad Eliyas (A-2), Monu Thawait (A-3) and Satish Bareth (A-4) for the aforesaid offences is liable to be set aside.

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12. Mr. Sudeep Verma, learned State counsel, would submit that prosecution has brought ample evidence on record to prove the motive of offence. Moreover, pursuant to memorandum statement of appellant/accused Mohammad Bilal (A-1) vide Ex. P/4 [duly proved by memorandum witnesses Nawdhalal Patel (P.W.-1) and Ramesh Kumar Patel (P.W.-7)], the dead body of deceased Tiharu Patel was recovered from Heerakund Dam vide Ex. P/30, plastic rope was recovered from the spot vide Ex. P/16 and the shirt worn by the deceased was recovered from the Highway vide Ex. P/15, which has also been proved by seizure witnesses Lakeshwar Patel (P.W.-5) and Ramesh Kumar Patel (P.W.-7). As such, the appellants/accused persons Mohammad Eliyas (A-2), Monu Thawait (A-3) and Satish Bareth (A-4) have rightly been convicted for the aforesaid offences on the basis of memorandum statement of Mohammad Bilal (A-1) in light of the decision rendered by the Supreme Court in the matter of State of Maharashtra v. Suresh 2 which has been followed with approval in Ningappa yallappa Hosamani and others v. State of Karnataka and others 3.

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1 AIR 1964 SC 1184

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2 (2000) 1 SCC 471

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3 (2009) 14 SCC 582

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13. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

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14. The first question that requires consideration is, whether the death of deceased Tiharu Patel was homicidal in nature ?

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15. Learned trial Court has recorded an affirmative finding in this regard and held that the death of deceased was homicidal in nature relying upon the medical evidence of Dr. B.P. Sai (P.W.-14) and the postmortem report (Ex. P/28). A careful perusal of the statement of Dr. B.P. Sai (P.W.-14) would show that while conducting postmortem of the deceased, he has made the following observations :-

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“3@ eqag v/k[kqyk Fkk nksuksa vka[k can Fkk] vka[k lwt x;k Fkk dUtdvkbok dUtLVM Fkk iqryh QSy x;h FkhA gksaB lwtu gks x;k Fkk vkSj uhyk gks x;k FkkA eqag vkSj ukd ls [kwu feDl >kx fudy jgk Fkk psgjk] iwjk 'kjhj Qwy x;k FkkA xys ij jLlh ds fu'kku Fkk tks FkkbjkbM dkfMZyst ds uhps xys ds pkjks vksj gksfjtsUVyh FkkA jLlh ds fu'kku ds uhps dkVus ls CyM tek gqvk FkkA Vªsfd;k dUtLVM Fkk vkSj mlesa >kx FkkA QQksys cka;s gkFk vkSj Nkrh ds cka;s lkbM esa FkkA

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4@ gkFk ds uk[kwu ij uhykiu fy;s gq;s FkkA [kjkst 7 xq.kk 3-5 ls-eh- Nkrh cka;s lkbM Fkk nwljk [kjksp 11 xq.kk 6 ls-eh- isV ds cka;s lkbM esa FkkA efl'd dk flYyh dUtLVM FkkA nkfguk vkSj cka;k QsQM+k dUtLVM FkkA gkVZ ds cka;s lkbM [kkyh Fkk nkfgus lkbM esa FkksM+k CyM FkkA isV ij v/kipk [kkuk FkkA ;dr Iyhgk xqjnk dUtLVM FkkA xys ij jLlh ds fu'kku jLlh ls vk;h Fkh tks eR;q ds igys dk FkkA isV vkSj mlds vanj ds oLrq;sa lhy can dk iqfyl dks jklk;fud tkap ds fy;s lkSaik FkkA

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5@ esjs erkuqlkj xyk ?kksVus ls lkal :dus ds dkj.k eR;q gqbZ Fkh tks gR;kRed izdfr dk FkkA e`R;q ih-,e- djus ds 24 ls 40 ds njE;ku dk FkkA esjh fjiksVZ izih&28 gS ftlds v ls v Hkkx ij esjs gLrk{kj gSA ”

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16. Thereafter, in paragraph 5 of his statement, Dr. B.P. Sai (P.W.-14) has clearly opined that the death of deceased Tiharu Patel was caused due to asphyxia and the nature of death is homicidal. In our considered opinion, the finding recorded by the trial Court that the death of deceased Tiharu Patel was homicidal in nature, relying upon the statement of Dr. B.P. Sai (P.W.-14) as well as the postmortem report (Ex. P/28), is a finding of fact based on evidence available on record which is neither perverse nor contrary to the record. Moreover, the fact that death of the deceased was homicidal in nature has also not been seriously disputed by learned counsel for the appellants, as such, we hereby affirm the finding recorded by the trial Court and hold that the death of deceased Tiharu Patel was indeed homicidal in nature.

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17. The next question for consideration is, whether the appellants are the perpetrators of the crime in question ? In order to answer this question, we shall consider the case of each of the appellants/accused persons one-by-one.

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Case of Mohammad Bilal (A-1)

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18. The instant case is based on circumstantial evidence as there is no direct evidence available on record. As contended by learned State counsel and as held by the trial Court, prosecution has alleged and duly proved the motive of offence. Appellant/accused Mohammad Bilal (A-1), who was driver of Bolero vehicle owned by the deceased Tiharu

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Patel, had illicit relationship with Gauri Patel (P.W.-9), wife of the deceased, and six months prior to the date of the incident, she had delivered a baby which had strengthened the suspicions of the deceased and his family members due to which dispute arose frequently between the deceased and accused Mohammad Bilal (A-1). As such, motive of offence against accused Mohammad Bilal (A-1) stands established.

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19. It is the case of the prosecution, which has also been found proved by the trial Court, that on the intervening night of 28-29/08/2014, appellant/accused Mohammad Bilal (A-1) came to the Petrol Pump at about 08:30 PM where the deceased used to work and on the pretext of giving party, he took the deceased as well as the three co-accused persons namely Mohammad Eliyas (A-2), Monu Thawait (A-3) and Satish Bareth (A-4) to Mohan Dhaba, owned by Mohanlal Chauhan (P.W.-8), wherein all of them ate dinner together and then, the appellants/accused persons administered sleeping pills in the cold drink/liqour served to the deceased. After having the said drink, the deceased became unconscious and all the appellants/accused persons took him to Heerakund Dam and thereafter, strangulated him with a plastic rope and in order to screen themselves, the appellants/accused persons threw the shirt worn by the deceased on the National Highway and drowned his dead body into the dam.

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20. A careful perusal of the statement of Abbas Ali (P.W.-2), who is the owner of the Petrol Pump where the deceased used to work, has clearly stated before the Court that on 28/08/2014, the deceased completed his duty from 02:00 PM to 08:00 PM and thereafter, left the Petrol Pump. On the next day, i.e. 29/08/2014, when Nawdhalal Patel (P.W.-1), elder brother of deceased, came to the Petrol Pump and enquired about the deceased, Abbas Ali (P.W.-2) informed him that after completing his work, he had left the Petrol Pump for his home and on the advice of Abbas Ali (P.W.-2), report had been lodged at the Police Station by Nawdhalal Patel (P.W.-1).

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21. Duleshwar Patel (P.W.-3), co-worker of the deceased, has stated before the Court that on 28/08/2014, he and deceased both had gone to the Petrol Pump at 02:00 PM and after completing their work at about 08:00 PM, when he asked the deceased to accompany him for going home, the deceased refused stating that he will go to a party. Thereafter, Duleshwar Patel (P.W-3) went to his home whereas the deceased went to party.

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22. Similarly, Kartikeshwar Patel (P.W.-11), who is also coworker of the deceased, has clearly stated before the Court that on 28/08/2014, when he came to the Petrol Pump to start his shift from 8:00 PM, at the time of meter closing, deceased told Dileshwar Patel (P.W.-3) to go home. When Kartikeshwar Patel (P.W.-11) asked the deceased whether

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he will not go home, the deceased replied to him saying that he is going to party with friends. Thereafter, Kartikeshwar Patel (P.W.-11) has stated that after 10 minutes, when he went to eat paan at the paan shop in front of Petrol Pump, he saw that the Bolero vehicle owned by the deceased stopped in front of Police Station and the driver Mohammad Bilal (A-1) came out and was standing there, although he could not see who was sitting inside the vehicle. Thereafter, he returned to the Petrol Pump to continue his work.

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23. Mohanlal Chauhan (P.W.-8), owner of Mohan Dhaba, has clearly stated in his statement before the Court that on 28/08/2014 between 9 to 10 PM, all the four appellants/accused persons along with one other person, whom he does not know, had dinner together at the Dhaba.

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24. Gauri Patel (P.W.-9), wife of the deceased, has stated that on 28/08/2014, when the deceased did not return home after completing his shift at the Petrol Pump at 8 PM, she called him on his mobile phone by taking the phone of a boy residing in the village named Nanu, and when she asked the deceased as to where he was, he had replied that he was at the Dhaba and was having dinner and when she asked as to who he was with, the deceased told her that he was with Mohammad Bilal (A-1), Mohammad Eliyas (A-2), Satish Bareth (A-4) and one other person whose name she could not remember. After sometime, when he still did not return

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home, she called him again but this time, his phone was switched off.

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25. After taking into consideration the testimony of the aforesaid witnesses, it has clearly been established that on the fateful day, Mohammad Bilal (A-1) had come to pick the deceased from the Petrol Pump after the end of his shift in the Bolero vehicle owned by him and thereafter, all the four appellants/accused persons as well as the deceased had gone to Mohan Dhaba, owned by Mohanlal Chauhan (P.W.8). When the deceased did not return home, FIR was lodged by his brother Nawdhalal Patel (P.W.-1) and the wheels of investigation started running and pursuant to the memorandum statement of Mohammad Bilal (A-1), the dead body of deceased Tiharu Patel was recovered from Heerakund Dam vide Ex. P/30 and his t-shirt was recovered from the National Highway vide Ex. P/15 and plastic rope was recovered from the spot vide Ex. P/16.

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26. It has been contended by learned counsel for the appellants/accused persons that the memorandum statement of the accused Mohammad Bilal (A-1) recorded vide Ex. P/4 is inadmissible in evidence as the dead body of the deceased has been recovered from Heerakund Dam which was already known by the Police.

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27. At this stage, it would be appropriate to notice Section 27 of the Indian Evidence Act, 1872, which states as under :-

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“ 27. How much of information received from accused may be proved. - Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”

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28. As such, it appears that Section 27 of the Evidence Act is applicable only if the confessional statement relates distinctly to the fact thereby discovered.

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29. The Supreme Court in the matter of Asar Mohammad and

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others v. State of U.P. 4, with reference to the word “fact” employed in Section 27 of the Evidence Act, has held that the facts need not be self-probatory and the word “fact” as contemplated in Section 27 of the Evidence Act is not limited to “actual physical material object”. It has been further held that the discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge of the mental awareness of the informant as to its existence at a particular place and it includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence. Their Lordships relying upon the decision of the Privy Council in the matter of Pulukuri Kotayya v. King Emperor5 observed as under :-

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“13. It is a settled legal position that the facts need not be self-probatory and the word “fact” as contemplated in Section 27 of the Evidence Act is not limited to “actual physical material object”. The discovery of fact arises by reason of the fact that

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4 AIR 2018 SC 5264

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5 AIR 1947 PC 67

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the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place. It includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence. It will be useful to advert to the exposition in the case of Vasanta Sampat Dupare v. State of Maharashtra⁶ , in particular, paragraphs 23 to 29 thereof. The same read thus :

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“23. While accepting or rejecting the factors of discovery, certain principles are to be kept in mind. The Privy Council in Pulukuri Kotayya v. King Emperor (supra) has held thus : (IA p. 77)

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“... it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that “I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.”

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30. In the matter of Suresh (supra) qua the situation where recovery of a dead body is recovered when an accused points out the place, Their Lordships of the Supreme Court has pointed out three possibilities in such a circumstance and held in paragraph 26 of the report as under :-

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6 (2015) 1 SCC 253

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“26. we too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by himself. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well-justified course to be adopted by the criminal court that the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act.”

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31. Following the principle laid down in Suresh (supra), in the

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matter of Ningappa Yallappa Hosamani (supra), Their Lordships of the Supreme Court have held that since dead body of deceased was recovered in furtherance of voluntary information furnished by the accused persons, the natural presumption, in absence of explanation by them, was that it was these two persons who had murdered the deceased and buried his dead body. It has been held in paragraphs 22 and 23 as under :-

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“22. The time at which this incident is stated to have happened is at about 11 p.m. on 30-1-2005 and later the same persons were seen near the canal with both the motorcycles. Therefore the story of gunny bag containing the jaggery block is not believable. As held by the courts below it must have contained the dead body of Namadev. Taking into consideration this factor, we find that the prosecution has conclusively proved that Accused 1, 2, 6 and 7 had disposed of the dead body of

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Namadev by putting it in a gunny bag and burying it at a place near the canal, which was detected in furtherance of the voluntary information furnished by Accused 1 and 2.

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It is also proved that the motorcycle of Namadev was drowned in the river by the accused, which was later recovered in furtherance of the voluntary information furnished by Accused 6. As regards Accused 1 and 2, since the dead body of Namadev was recovered in furtherance of the voluntary information furnished by them, the natural presumption, in the absence of explanation by them is that it was those two persons, who had murdered Namadev and had buried the dead body.”

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32. Reverting to the facts of the present case in light of the principle of law laid down by their Lordships of the Supreme Court in Suresh (supra) which has been followed in Ningappa Yallappa Hosamani (supra), it is quite vivid that the memorandum statement of appellant/accused Mohammad Bilal (A-1) was recorded at 8 PM on 29/08/2014 and the dead body of deceased Tiharu Patel was recovered from Heerakund Dam at 08:45 AM on 30/08/2014 vide Ex. P/30, which has been proved by Nawdhalal Patel (P.W.-1). Moreover, the shirt worn by the deceased was also recovered from Bargarh National Highway on 30/08/2014 at about 10 AM vide Ex. P/15, which has also been duly proved by the seizure witnesses namely Ramesh Kumar Patel (P.W.-7) and Lakeshwar Patel (P.W.-5). As such, the dead body of the deceased as well as the shirt worn by him, both were recovered pursuant to the voluntary information furnished by Mohammad Bilal (A-1) and they have duly been proved by prosecution witnesses.

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33. The next incriminating circumstance pointed out by learned counsel for the State is the FSL report dated 21/10/2014 which has though been brought on record but it has not been exhibited by the trial Court. In the said report, the article A which was sent for examination is viscera of the deceased i.e. stomach and its contents in which nitrazepam and ethyl alcohol have been found. Nitrazepam is a strong sedative and an anticonvulsant.

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34. Learned State counsel relies upon the FSL report dated 21/10/2014, but it has been strongly opposed by learned counsel for the appellants on the ground that the copy of the said FSL report has though been brought on record but neither it has been exhibited by the trial Court nor it has been put to question before the appellants in their statement under Section 313 of CrPC, therefore, it cannot be relied upon at this stage.

¶112

35. It is correct to say that though the FSL report has been brought on record, but it has not been exhibited as a document on behalf of the prosecution. The FSL report dated 21/10/2014, which is a duly signed report by a scientific expert from the State Forensic Science Laboratory, is an evidence within the meaning of Section 293(1) of CrPC and it may be used in trial by virtue of Section 293(1) of CrPC, unless the said scientific expert is required to be examined by virtue of Section 293(2) of CrPC, but the fact remains that the copy of the said report has to be supplied

¶113

21

¶114

to the other side and it has to be put to the accused under Section 313 of CrPC, which has not been done in the present case.

¶115

36. It is well-settled law that any incriminating circumstance against the accused has to be put to the accused in his statement under Section 313 CrPC, otherwise, that piece of evidence has to be excluded from consideration because the accused did not have any chance to explain it. This principle of law has been constantly held by the Supreme Court in a catena of judgments including way back in the year 1953 in the matter of Hate Singh Bhagat Singh v. State of Madhya Pradesh 7 wherein their Lordships of the Supreme Court have held that any circumstance in respect of which the accused was not examined under Section 342 of old CrPC, it cannot be used against him.

¶116

37. In the matter of Harijan Megha Jesha v. State of Gujarat 8,

¶117

the Supreme Court has held that the report of Serologist cannot be used against the accused if it has not been put to the accused in his statement under Section 342 of the old CrPC, which states as under :-

¶118

“3.... In the first place, he stated that on the personal search of the appellant, a chadi was found which was blood stained and according to the report of the serologist, it contained human blood. Unfortunately, however, as this circumstance was not put to the accused in his statement under Section 342, the prosecution cannot be permitted to rely on his statement in order to convict the

¶119

7 AIR 1953 SC 468

¶120

8 AIR 1979 SC 1566

¶121

22

¶122

appellant particularly after he had been acquitted by the Trial Court.”

¶123

38. The aforesaid principle of law laid down in Harijan Megha Jesha (supra) has been followed with approval in the matter of Sharad Birdhichand Sarda v. State of Maharashtra 9.

¶124

39. However, at this stage, learned State counsel would submit that the appellate Court can also put the said FSL report to the appellants/accused persons and thereafter, it can be relied upon, as held by the Supreme Court in the matter of State (Delhi Administration) v. Dharampal 10 followed in State of Punjab v. Swaran Singh 11.

¶125

40. The aforesaid submission made by learned State counsel deserves to be rejected as the trial Court has not relied upon the FSL report as an incriminating circumstance against any of the appellants/accused persons as the said circumstance has not been put to them in their statements under Section 313 of CrPC.

¶126

41. In the matter of Harijan Megha Jesha (supra), the Supreme Court has declined to rely upon the Serologist's report as it was not put to the accused under Section 313 of CrPC, particularly, after the accused has been acquitted by the trial Court.

¶127

42. In the instant case also, the trial Court did not rely upon the FSL report dated 21/10/2014 to convict the

¶128

9 AIR 1984 SC 1622

¶129

10 (2001) 10 SCC 372

¶130

11 AIR 2005 SC 3114

¶131

23

¶132

appellants/accused persons for the offence in question and in that view of the matter, since the FSL report has not been put to any of the appellants/accused persons under Section 313 of CrPC and no explanation has been sought from any of them, the said incriminating circumstance in the form of FSL report dated 21/10/2014 cannot be read into evidence as no opportunity of hearing has been afforded to the appellants/accused persons and that too, in the appeals preferred by the appellants/accused persons. As such, the argument raised by learned State counsel to accept the FSL report dated 21/10/2014 as an incriminating circumstance against the appellants/accused persons is hereby rejected.

¶133

43. Reverting finally to the facts and circumstances of the present case in light of the aforesaid legal discussion, we are of the considered opinion that prosecution has proved the motive of offence against the appellant/accused Mohammad Bilal (A-1) beyond reasonable doubt and learned trial Court is absolutely justified in relying upon the memorandum statement of the appellant/accused Mohammad Bilal (A-1) which has been found duly proved in accordance with Section 27 of the Evidence Act pursuant to which dead body of deceased Tiharu Patel was recovered vide Ex. P/30 and the shirt worn by the deceased was also recovered from Bargarh National Highway vide Ex. P/15 and thereby, convicting him for the aforesaid offences. As

¶134

24

¶135

such, appeal of Mohammad Bilal (A-1) deserves to be dismissed.

¶136

Case of Mohammad Eliyas (A-2), Monu Thawait (A-3) and

¶137

Satish Bareth (A-4) :-

¶138

44. The three accused persons namely Mohammad Eliyas (A-2), Monu Thawait (A-3) and Satish Bareth (A-4) have been convicted by the trial Court with the aid of Section 30 of the Evidence Act by recording the following finding in paragraph 68 of the impugned judgment, which states as under :-

¶139

“68. vkjksihx.k ds fo}ku vf/koDrkx.k ds rdZ ds ifjizs{; esa mYys[kuh; gS fd bl izdj.k dh ifjfLFkfr;ka izR;{k lk{; dh ugh gS] cfYd ifjfLFkfrtU; lk{; ij vk/kkfjr gSA vkjksihx.k ds e/; lkekU; vk'k; dk xBu gqvk] bldk Hkh dksbZ izR;{k lk{; ugha gS] cfYd Hkh bldk vuqeku ifjfLFkfr;ksa ds vk/kkj ij gh gksxkA izdj.k ds voyksdu ls nf"Vxr gS fd ?kVuk ds iwoZ vkjksih eksgEen fcyky jkf= ds djhc 08%30 cts cksysjks okgu ds lkFk lkjax<+ iqfyl pkSdh ds ikl ns[kk x;k] blds ckn lHkh vkjksihx.k eksgu <kck esa ,d lkFk [kkuk [kk;sA vfHk;kstu] vkjksih eksgEen fcyky }kjk dh x;h laLohdfr dks lkfcr djus esa lQy jgk gS] ftlesa mlus 'ks"k rhuksa vkjksihx.k eksgEen bfy;kl] lrh'k cjsB ,oa eksuw FkokbZr dh Hkh lgHkkfxrk ds laca/k esa dFku fd;k gSA ;gka Hkkjrh; lk{; vf/kfu;e 1972 dh /kkjk 30 ds mica/k ds vkyksd esa vkjksih eksgEen fcyky }kjk dh x;h laLohdfr 'ks"k vkjksfi;ksa ds laca/k esa fopkj ;ksX; gSA vkjksih eksgEen fcyky lkfgr 'ks"k rhuksa vkjksihx.k ?kVuk ds iwoZ eksgu <kck esa Hkkstu fd;s rFkk ?kVuk dks vatke nsrs le; ,d lkFk ghjkdq.M Mse ij Hkh mifLFkr Fks rks mDr ifjfLFkfr;ksa esa ;gh bafxr djrh gS fd vkjksihx.k dk erd frgk: iVsy dh gR;k djus dk lkekU; vk'k; FkkA ”

¶140

45. At this stage, it would be appropriate to notice Section 30 of

¶141

the Indian Evidence Act, 1872, which states as under: -

¶142

“ 30. Consideration of proved confession affecting person making it and others jointly under trial for

¶143

same offence .—When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved,

¶144

25

¶145

the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.

¶146

Explanation .—“Offence”, as used in this section, includes the abetment of, or attempt to commit, the offence.”

¶147

46. A careful perusal of the aforesaid provision would show that the object of this provision is that where an accused person unreservedly confesses his own guilt, and at the same time implicates another person who is jointly tried with him for the same offence, his confession may be taken into consideration against such other person as well as against himself, because the admission of his own guilt operates as a sort of sanction, which, to some extent, takes the place of the sanction of an oath and so affords some guarantee that the whole statement is a true one. When a person admits his guilt to the fullest extent, and exposes himself to the pains and penalties provided therefore, there is a guarantee for his truth. The Court could use the confession of one accused against another accused only if the following two conditions are fulfilled: -

¶148

The co-accused should have been charged in the same case along with the confessor.

¶149

He should have been tried together with the confessor in the same trial.

¶150

47. Section 30 of the Evidence Act came up for consideration before their Lordships of the Supreme Court in Haricharan

¶151

26

¶152

Kurmi v. State of Bihar 12 in which their Lordships have considered the probative value of confession of co-accused and its use how to be made in joint trial. In Haricharan Kurmi (supra), their Lordships clearly held that though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act and observed as under: -

¶153

“11. … The basis on which this provision is founded is that if a person makes a confession implicating himself, that may suggest that the maker of the confession is speaking the truth. Normally, if a statement made by an accused person is found to be voluntary and it amounts to a confession in the sense that it implicates the maker, it is not likely that the maker would implicate himself untruly, and so, S. 30 provides that such a confession may be taken into consideration even against a co-accused who is being tried along with the maker of the confession. There is no doubt that a confession made voluntarily by an accused person can be used against the maker of the confession, though as a matter of prudence criminal courts generally require some corroboration to the said confession particularly if it has been retracted. With that aspect of the problem, however, we are not concerned in the present appeals. When S. 30 provides that the confession of a co-accused may be taken into consideration, what exactly is the scope and effect of such taking into consideration is precisely the problem which has been raised in the present appeals. It is clear that the confession mentioned in S. 30 is not evidence under S. 3 of the Act. ...

¶154

… It would be noticed that as a result of the provisions contained in S. 30, the confession has

¶155

12 AIR 1964 SC 1184

¶156

27

¶157

no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the Court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of S. 30, the fact remains that it is not evidence as defined by S. 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of co-accused person; 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 confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained is S. 30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh, 1952 SCR 526: (AIR 1952 SC 159) where the decision of the Privy Council in Bhuboni Sahu's case, 76 Ind App 147 (AIR 1949 PC 257) has been cited with approval.

¶158

… As we have already indicated, it has been a recognised principle of the administration of criminal law in this country for over half a century that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible, from the said evidence. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is

¶159

28

¶160

entitled to the benefit of doubt. That is precisely what has happened in these appeals.”

¶161

48. The principle of law laid down in Haricharan Kurmi (supra)

¶162

has been followed recently by the Supreme Court in

¶163

Dipakbhai Jagdishchandra Patel v. State of Gujarat and

¶164

another 13. It has also been held by their Lordships that confession of an accused person is not evidence, it cannot be made tile foundation of a conviction and can only be used in support of other evidence (see Kashmira Singh v. State of Madhya Pradesh 14, Nathu v. State of Uttar Pradesh 15 and Govt. of NCT of Delhi v. Jaspal Singh 16.)

¶165

49. In the matter of Surinder Kumar Khanna v. Intelligence

¶166

Officer, Directorate of Revenue Intelligence 17, their

¶167

Lordships of the Supreme Court have summarised the law relating to scope of Section 30 of the Evidence Act and observed as under: -

¶168

“11. The law laid down in Kashmira Singh (supra) was approved by a Constitution Bench of this Court in Haricharan Kurmi v. State of Bihar (supra) wherein it was observed: (Haricharan case (supra), AIR p.1188, para 12)

¶169

“12. As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon the confession of one

¶170

13 AIR 2019 SC 3363

¶171

14AIR 1952 SC 159

¶172

15AIR 1956 SC 56

¶173

16(2003) 10 SCC 586

¶174

17(2018) 8 SCC 271

¶175

29

¶176

accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, 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 person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbutty¹⁸ a confession can only be used to “lend assurance to other evidence against a co-accused”. In Periaswami Moopan , In re¹⁹ Reilly, J., observed that the provision of Section 30 goes not further than this: (SCC OnLine Mad)

¶177

‘… where there is evidence against the coaccused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence’.

¶178

In Bhuboni Sahu v. R.²⁰ the Privy Council has expressed the same view. Sir John Beaumont who spoke for the Board, observed that: (SCC OnLine PC)

¶179

‘… a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of “evidence” contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by crossexamination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it

¶180

18ILR (1911) 38 Cal 559 at p. 588 191930 SCC OnLine Mad 86 : ILR (1931) 54 Mad 75 at p. 77 201949 SCC OnLine PC 12 : (1948-49) 76 IA 147 at p. 155

¶181

30

¶182

can be put into the scale and weighed with the other evidence’.

¶183

It would be noticed that as a result of the provisions contained in Section 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; 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 confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in Section 30. The same view has been expressed by this Court in Kashmira Singh v. State of M.P. (supra) where the decision of the Privy Council in Bhuboni Sahu case (supra) has been cited with approval.”

¶184

The law so laid down has always been followed by this Court except in cases where there is a specific provision in law making such confession of a co-accused admissible against another accused.²¹

¶185

50. Reverting to the facts of the case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court in Haricharan Kurmi (supra), Dipakbhai Jagdishchandra Patel (supra) and Surinder Kumar Khanna (supra) and considering the provisions contained in Section 30 of the Evidence Act, it is quite vivid that

¶186

21For example: State v. Nalini, (1999) 5 SCC 253, paras 424 and 704 : 1999 SCC (Cri) 691

¶187

31

¶188

confessional statement of co-accused is a very weak piece of evidence, and unless other circumstantial evidence or ocular evidence is available, conviction cannot be rested only on the confessional statement of the co-accused with the aid of Section 30 of the Evidence Act, as it requires corroboration from other evidence as well either ocular or circumstantial. In the instant case, as noticed herein-above, the trial Court has held the three appellants/accused persons Mohammad Eliyas (A-2), Monu Thawait (A-3) and Satish Bareth (A-4) guilty for the aforesaid offences merely on the basis of the memorandum statement of appellant/co-accused Mohammad Bilal (A-1). No other evidence, ocular or circumstantial, has been established on record to hold them guilty except the memorandum statement of mohammad Bilal (A-1) whereas memorandum statement of co-accused has to be used only as a corroborative piece of evidence. In that view of the matter, we are of the considered opinion that trial Court is absolutely unjustified in convicting the co-accused persons namely Mohammad Eliyas (A-2), Monu Thawait (A-3) and Satish Bareth (A-4) with the aid of Section 30 of the Evidence Act relying upon the memorandum statement of Mohammad Bilal (A-1) vide Ex. P/4. Accordingly, we are unable to uphold the conviction of appellants/accused persons Mohammad Eliyas (A-2), Monu Thawait (A-3) and Satish Bareth (A-4) and we hereby set aside the impugned

¶189

32

¶190

judgment so far as it relates to these three appellants/accused persons and they are acquitted of the charges levelled against them. Since these three accused persons are already on bail, they need not surrender. However, their bail bonds shall remain in force for the period of six months in view of Section 437A of CrPC.

¶191

Conclusion :-

¶192

51. Criminal Appeal No. 1561/2019 and 1647/2019 filed by the appellants/accused persons Mohammad Eliyas (A-2) and Satish Bareth (A-4) and Monu Thawait (A-3), respectively, are hereby allowed and they are acquitted of the charges levelled against them whereas Criminal Appeal No. 532/2016 filed by appellant/accused Mohammad Bilal (A-1) stands dismissed.

¶193

Sd/-

¶194

Sd/-

¶195

(Sanjay K. Agrawal) (Sachin Singh Rajput)

Judge

Judge

Harneet

HIGH COURT OF CHHATTISGARH, BILASPUR

¶200

Order Sheet

¶201

CRA No. 1561 of 2015

¶202

Mohammed Eliyas and Anr. Versus State of Chhattisgarh

¶203

CRA Nos. 1647/2015 & 532/2016

¶204

DB Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sachin Singh Rajput

¶205

21.10.2022 Criminal Appeals No. 1561/2019 and 1647/2019 mentioned in paragraph 51 of judgment dated 11/10/2022 be read as Criminal Appeals No. 1561/2015 and 1647/2015 .

¶206

Sd/Sd/- (Sanjay K. Agrawal)l) (Sachin Singh Rajput) Judge Judge

¶207

Harneet

Monu Thawait v. State Of Chhattisgarh

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Monu Thawait v. State Of Chhattisgarh

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