Manohar Bargah and another Vs State Of Chhattisgarh

¶1

1

¶2

NAFR

¶3

HIGH COURT OF CHHATTISGARH, BILASPUR

¶4

Criminal Appeal No. 1164 of 2016

¶5

{Arising out of the judgment dated 26.02.2016 passed in Sessions Trial No.31/2015 by the IV^th Additional Sessions Judge, Ambikapur}

¶6

1. Manohar Bargah, S/o. Shiva Bargah, Aged About 26 Years, R/o. Near Dhobinala Godhanpur, Police StationGandhi Nagar, Ambikapur, District Surguja, Chhattisgarh.

¶7

2. Amar Prajapati, S/o. Chhattar Prajapati, Aged About 28 Years, R/o. Kumharpara, Jhingomana, Raipur, At Present R/o. Bauripara, Police Station- City Kotwali, Ambikapur, District- Surguja, Chhattisgarh.

¶8

---Appellants

¶9

Versus

¶10

State Of Chhattisgarh, Through District Magistrate Ambikapur, District (Revenue & Civil) - Surajpur, Chhattisgarh.

¶11

---Respondent

¶12

(Cause Title taken from Case Information System)

¶13

For Appellants : Mr. Vaibhav Shukla & Mr. Akhilesh Mishra, Advocate/Panel Lawyer appointed by the C.G. High Court Legal Aid Committee.

¶14

For Respondent : Mr. Ankur Kashyap, Dy. G.A.

¶15

(Division Bench)

¶16

Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal

¶17

Judgment On Board (06.03.2024)

¶18

Sanjay K. Agrawal, J.

¶19

1. This criminal appeal preferred by the two appellants under Section 374(2) of Cr.P.C. is directed against the

¶20

2

¶21

impugned judgment dated 26.02.2016 passed by learned IV^th Additional Sessions Judge, Ambikapur, in Sessions Trial No.31/2015, by which, the appellants herein have been convicted for offence under Section 302/34 of I.P.C. and sentenced to life imprisonment and fine of Rs.300/- each, in default of payment of fine, 1 month’s additional rigorous imprisonment.

¶22

2. Case of the prosecution, in brief, is that in the intervening night of 20/21.03.2014, the two appellants along-with absconded co-accused Suraj Kujaur suspecting that Sanjay @ Suraj Bhagat (now deceased) have relationship other than marriage with the wife of absconding accused Suraj Kujaur and in furtherance of their common intention, assaulted the deceased by hammer, by which, he suffered grievous injuries and died and in order to screen themselves from the legal punishment, they caused disappearance of the evidence and thereby committed the offence. Smt. Anju Bhagat (PW-1) sister of the deceased reported the matter to the police and on next day, she was informed that dead body of deceased Sanjay is lying at Shivdhari pond, behind Panchanan hotel, she reached to the spot and identified his brother, he had sustained grievous injuries and blood was oozing. The first information

¶23

3

¶24

report was registered vide Ex.P-1, merg intimation was recorded vide Ex.P-2, inquest was conducted vide Ex.P19 and dead body of deceased Sanjay was subjected to post-mortem, which was conducted by Dr. K.R.Tekam (PW-4), who proved the post-mortem report Ex.P-9, according to which, cause of dead was stated to be head injury leading to cardio pulmonary arrest and death was homicidal in nature. Pursuant to memorandum statement of the appellant No.1, hammer was seized from the house of absconding co-accused Suraj vide Ex.P-3 and the clothes of the appellants were also seized, which were sent for chemical examination to FSL and as per the FSL report (Ex.P32), blood was found on the seized articles. After due investigation, both the appellants were charge-sheeted for the aforesaid offences to the jurisdictional criminal court and the case was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which the appellants abjured their guilt and entered into defence stating that they have not committed any offence and they have been falsely implicated.

¶25

3. In order to bring home the offences, prosecution examined as many as 8 witnesses and exhibited 32

¶26

4

¶27

documents and the appellants-accused in support of their defence have not examined any witness but have exhibited the document Ex.D-1 & Ex.D-2.

¶28

4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellants for the aforesaid offences and sentenced them as mentioned in the opening paragraph of this judgment against which the present appeal has been preferred.

¶29

5. Mr. Vaibhav Shukla & Mr. Akhilesh Mishra, learned counsels for the appellants would submit that the appellants have been convicted on the basis of last seen together allegedly proved by Ramnath (PW-2) and furthermore, seizure of hammer and clothes of appellants, blood has been found and that has been taken as incriminating circumstances and on the basis of memorandum statement of Manohar Bargah (appellant No.1), the other co-accused Amar Prajapati (appellant No.2) has been convicted. As such, on the basis of memorandum statement of Manohar (A-1), Amar Prajapati (A-2) could not have been convicted with the aid of Section 30 of the Indian Evidence Act and therefore, the appellants are entitled for acquittal on the basis of benefit of doubt.

¶30

5

¶31

6. Mr. Ankur Kashyap, learned State counsel would submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the learned trial Court has rightly convicted the appellants for the aforesaid offence and, as such, the appeal deserves to be dismissed.

¶32

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

¶33

8. The first question for consideration as to whether the death of deceased Sanjay @ Suraj was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-9), proved by Dr. K.R. Tekam (PW-4), according to which, cause of death was stated to be head injury leading to cardio pulmonary arrest and death was homicidal in nature, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding.

¶34

9. The appellant No.1 has been convicted on the basis that he and deceased and absconded co-accused were seen together by Ramnath (PW-2) on the date of offence

¶35

6

¶36

at about 8:00 p.m. However, a careful perusal of the statement would show that PW-2 has simply stated that he has seen the appellant No.1 and one other person going towards their house and the deceased was coming from opposite direction and the altercation took place between the two appellants and deceased and both have gone their way thereafter. However, taking into the statement of Ramnath (PW-2) as it is, it is not established that the two appellants have taken the deceased along-with them and thereafter dead body was found. As such, there is no evidence at all that the two appellants have taken the deceased along-with them immediately after altercation and thereafter the dead body was found on 21.03.2014 and, as such, the theory of last seen together is not established. So far as the recovery of hammer is concerned, the trial Court itself has recorded a finding that it was seized from the house of absconded co-accused Suraj and as per the FSL report (Ex.P-32), blood was found on the hammer and also on the clothes of appellant. However, in view of the decision of the Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh1 , even if the recovery is proved beyond reasonable doubt and human blood was not found, recovery is of no use to 1 (2019) 7 SCC 781

¶37

7

¶38

the prosecution and only on the basis of recovery of bloodstained clothes, which has been one of the incriminating circumstances but that cannot be made basis for conviction for offence under Section 302 of I.P.C.

¶39

10. So far as the appellant No.2 is concerned, only on the basis of memorandum statement of appellant No.1 (Ex.P-5) where he has disclosed the name of Amar Prajapati (appellant No.2), the trial Court has convicted the appellant No.2 under Section 302 of I.P.C. in light of Section 30 of the Indian Evidence Act.

¶40

11. Now, the question would be, whether the trial Court is justified in convicting the appellant No.2 with the aid of Section 30 of the Indian Evidence Act, 1872, which states as under: -

¶41

“ 30. Consideration of proved confession affecting person making it and others jointly under trial for 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, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.

¶42

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

¶43

8

¶44

12. 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: -

¶45

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

¶46

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

¶47

13. Section 30 of the Evidence Act came up for consideration before their Lordships of the Supreme Court in Haricharan Kurmi v. State of Bihar2

¶48

AIR 1964 SC 1184

¶49

9

¶50

(Constitution Bench) in which their Lordships have considered the probative value of confession of coaccused 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: -

¶51

“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 coaccused 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. ...

¶52

10

¶53

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

¶54

… 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

¶55

11

¶56

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

¶57

14. The principle of law laid down in Haricharan Kurmi (supra) has been followed recently by the Supreme Court in Dipakbhai Jagdishchandra Patel v. State of Gujarat & Another3 . 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 4, Nathu v. State of Uttar Pradesh 5 and Govt. of NCT of Delhi v. Jaspal Singh 6.)

¶58

15. In the matter of Surinder Kumar Khanna v. Intelligence Officer, Directorate of Revenue Intelligence 7, their Lordships of the Supreme Court

¶59

AIR 2019 SC 3363

¶60

AIR 1952 SC 159

¶61

AIR 1956 SC 56

¶62

(2003) 10 SCC 586

¶63

(2018) 8 SCC 271

¶64

12

¶65

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

¶66

“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)

¶67

“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 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 Chuckerbutty⁸ a confession can only be used to “lend assurance to other evidence against a coaccused”. In Periaswami Moopan , In re⁹ Reilly, J., observed that the provision of Section 30 goes not further than this: (SCC OnLine Mad)

¶68

1930 SCC OnLine Mad 86 : ILR (1931) 54 Mad 75 at p. 77

¶69

ILR (1911) 38 Cal 559 at p. 588

¶70

13

¶71

‘… where there is evidence against the co-accused 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’.

¶72

In Bhuboni Sahu v. R.¹⁰ the Privy Council has expressed the same view. Sir John Beaumont who spoke for the Board, observed that: (SCC OnLine PC)

¶73

‘… 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 cross-examination. 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 can be put into the scale and weighed with the other evidence’.

¶74

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

¶75

1949 SCC OnLine PC 12 : (1948-49) 76 IA 147 at p. 155

¶76

14

¶77

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.”

¶78

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.¹¹

¶79

16. 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),

¶80

Dipakbhai Jagdishchandra Patel (supra) and

¶81

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

¶82

15

¶83

Surinder Kumar Khanna (supra) and considering the provisions contained in Section 30 of the Evidence Act, it is quite vivid that confessional statement of coaccused is a very weak piece of evidence, 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 and unless there is other evidence, ocular or circumstantial evidence available on record, merely on the basis of confessional statement of coaccused, conviction with the aid of Section 30 of the Evidence Act cannot be made by the courts.

¶84

17. In view of the judgments of the Supreme Court noticed herein above, the confessional statement of the coaccused is a very weak piece of evidence and in absence of other corroborative piece of evidence, the appellant No.2 could not have been convicted by the trial Court for the offence under Section 302/34 of I.P.C., as the shirt & pant seized from appellant No.2 vide Articles G-1 & G-2, no blood much-less human blood has been found in the FSL report (Ex.P-32).

¶85

18. In view of the aforesaid discussions, the impugned judgment of conviction and order of sentence dated

¶86

16

¶87

26.02.2016 is set aside. The appellants stand acquitted giving them benefit of doubt of the charge framed against them for the aforesaid offence and accordingly, they be released forthwith from jail, unless they are required in any other offence.

¶88

19. In the result, the appeal is allowed.

¶89

20. Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court for necessary information and action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellants are suffering the jail sentence.

¶90

Sd/Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

¶91

Ashok

Manohar Bargah and another v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Manohar Bargah and another v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Sohanlal Naurange Vs State Of Chhattisgarh

Shankar Sagar @ Ajay Vs State Of Chhattisgarh

Somaru Nag Vs State Of Chhattisgarh

Lukesh Nishad Vs State Of Chhattisgarh

Hemal Bagh Vs State Of Chhattisgarh

Raju Thakur Vs State Of Chhattisgarh