Allowed

Pardeshi @ Ratiram @ Raturam v. State of Chhattisgarh

Chhattisgarh HC7 Nov 2024CRA/1239/2019

Case brief

AI extract

What is this about?

Four appellants convicted of murder and causing disappearance of evidence solely on confessional memorandum statements. The High Court held such statements inadmissible and co-accused confessions weak evidence requiring corroboration; the panchsheel of circumstantial proof was not satisfied. Convictions set aside and all appellants acquitted on benefit of doubt.

What did the court decide?

Convictions and sentences under Sections 302 & 201/34 IPC set aside; all appellants acquitted on benefit of doubt; appellant No.1 to be released from jail forthwith.

Pardeshi @ Ratiram @ Raturam Vs State of… — Murder and Culpable Homicide | Chhattisgarh HC (2024)

¶1

Page No.1 of 25 IN CRA-1239-2019

¶2

2024:CGHC:43670-DB

¶3

Digitally signed by SAIFAN SAIFAN KHAN Date: KHAN 2024.11.11 13:31:11 +0530

¶4

HIGH COURT OF CHHATTISGARH, BILASPUR

¶5

NAFR

¶6

Criminal Appeal No. 1239 of 20 19

¶7

[Arising out of judgment dated 29.04.2019, passed in Sessions Case No.26 of 2018 (State of Chhattisgarh v. Pardeshi @ Ratiram @ Raturam and 03 others), by the Additional Sessions Judge, Gharghoda, District Raigarh (C.G.)]

¶8

1. Pardeshi @ Ratiram @ Raturam S/o - Shri Jagmohan Korwa Aged About 27 Years R/o - Village Kuma, Raskoriya, ThanaKapu, District Raigarh (Chhattisgarh)

¶9

2. Vifal Korwa S/o - Shri Dharmu Korwa Aged About 35 Years R/o - Village Kuma, Raskoriya, Thana- Kapu, District Raigarh (Chhattisgarh)

¶10

3. Jagdish Korwa S/o- Shri Mangalsai Korwa Aged About 26 Years R/o - Village Kuma, Raskoriya, Thana- Kapu, District Raigarh (Chhattisgarh)

¶11

4. Shobhit Korwa S/o - Shri Mangalsai Korwa Aged About 19 Years R/o - Village Kuma, Raskoriya, Thana- Kapu, District Raigarh (Chhattisgarh)

¶12

---- Appellants (A-1 in Jail & A-2 to A-4 on Bail)

¶13

Versus

¶14

State of Chhattisgarh, through Station House Officer, Police Station Kapu, District Raigarh (Chhattisgarh)

¶15

---- Respondent

¶16

[Cause-title taken from Case Information System (CIS)]

¶17

---------------------------------------------------------------------------------For Appellants : Mr. B.P. Rao, Advocate For Respondent : Mr. Pankaj Singh, Panel Lawyer

¶18

Division Bench

¶19

Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Amitendra Kishore Prasad Judgment on Board (08.11.2024)

¶20

Sanjay K. Agrawal, J

¶21

Page No.2 of 25 IN CRA-1239-2019

¶22

(1) Feeling aggrieved and dissatisfied by the impugned judgment of conviction and order of sentence dated 29.04.2019, passed in Sessions Case No.26 of 2018 (State of Chhattisgarh v. Pardeshi @ Ratiram @ Raturam and 03 others), by the Additional Sessions Judge, Gharghoda, District Raigarh (C.G.), 04 accused-appellants herein have preferred this consolidated criminal appeal under Section 374(2) of Cr.P.C., by which they have been convicted and sentenced as under:

¶23

Appellant No.01- Pardeshi @ Ratiram @ Raturam:

¶24

Conviction	Sentence
U/s. 302 of IPC	Imprisonment for life Rs.500/- and, in default fine, sentenced to unde rigorous imprisonment fo	with fine of of payment of rgo additional r 02 months.
U/s. 201/34 of IPC	Rigorous imprisonment fo fine of Rs.500/- and, payment of fine, sentenc additional rigorous impri months.	r 05 years with in default of ed to undergo sonment for 02

¶25

[Both the sentences were directed to run concurrently ]

¶26

Appellant No.02 to 04:

¶27

Conviction	Sentence
U/s. 201/34 of IPC	Rigorous imprisonment for 05 years with
	fine of Rs.500/- each and, in default of
	payment of fine, sentenced to undergo
	additional rigorous imprisonment for 02
	months each.

¶28

(2) The case of the prosecution, in a nutshell, is that between

¶29

Page No.3 of 25 IN CRA-1239-2019

¶30

08.03.2018 to 08.04.2018, prior to one day of Holi festival, at Village Kuma, Raskoriya, which comes within the ambit of Police Station Kapu, Dharamjaigarh, District Raigarh (Chhattisgarh), firstly the appellant No.01 with the intent to kill one Kawalsai Korwa (hereinafter referred to as the “deceased”) assaulted him by means of hand, fist and crowbar and, thereafter, in order to screen himself from the legal punishment of committing murder of the deceased, with the help of appellants No.02 to 04 , buried the deadbody of the deceased and, thereby, said to have committed the aforesaid offences.

¶31

(3) It is further case of the prosecution that initially on 19.03.2018, J. Lakda (PW-05) lodged missing report of the deceased vide Ex.P/12, pursuant to which, wheels of investigation started running and, meanwhile, on 08.04.2018, when the dead-body of the deceased was recovered, merg intimation vide Ex.P/13 was registered. Thereafter, when memorandum statement of the appellant No.01 vide Ex.P/01 was recorded, he narrated the incident and disclosed that after committing murder of the deceased, he alongwith other appellants No.02 to 04 have buried the dead-body of the deceased. Pursuant to which, FIR (Ex.P/14) was registered against the appellants and they were arrested vide Ex.P/17 to Ex.P/20 respectively. Memorandum statements of the appellants No.02 to 04 were also recorded vide Ex.P/03 to P/05. respectively, in which, they have also admitted that the appellant

¶32

Page No.4 of 25 IN CRA-1239-2019

¶33

No.01 has killed the deceased and they have helped him in burying the dead-body. Spot panchnama was prepared vide Ex.P/06. The dead-body of the deceased was sent for postmortem examination, which was conducted by Dr. Abhishek Gupta and, as per PM report (Ex.P/11), it has been opined that cause of death of the deceased is traumatic asphyxia as a result of throttling and ribs facture and nature of death is homicidal. At the instance of the appellant, one sabbal (crowbar) has been seized vide Ex.P/02. However, the same has not been subjected to chemical examination for the reasons best known to the prosecution. After statements of witnesses were recorded and investigation was completed, the police filed chargesheet against the appellants in the competent court of criminal jurisdiction and, ultimately, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellants/accused abjured their guilt and entered into defence by stating that they are innocent and have been falsely implicated.

¶34

(4) The prosecution in order to prove its case examined as many as 06 witnesses and exhibited 20 documents, whereas the appellants-accused in support of their defence, neither examined any witness nor exhibited any document.

¶35

(5) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant No.01 for offences under Sections 302, 201/34 of IPC, whereas convicted the appellants No.02 to 04 for offence under

¶36

Page No.5 of 25 IN CRA-1239-2019

¶37

Section 201/34 of IPC and sentenced them as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellants-accused questioning the impugned judgment of conviction and order of sentence.

¶38

(6) Mr. B.P. Rao, learned counsel appearing for the appellants submits that the learned trial Court is absolutely unjustified in convicting the appellant for the aforesaid offences, as the prosecution has failed to prove the same beyond reasonable doubt. He further submits that as per merg intimation (Ex.P/13) the deadbody of the deceased has been noticed on 08.04.2018 and same was recovered by the police authorities and, therefore, it cannot be said that the dead-body of the deceased was recovered at the instance or pursuant to the memorandum statement of the appellant No.01. Though, in the memorandum statement, the appellant No.01 has admitted that he has killed the deceased, but said fact cannot form basis for his conviction as the same is inadmissible in evidence. Learned counsel vehemently argued that the memorandum statements of the appellants No.02 to 04 in implicating the appellant No.01 is also a weak piece of evidence and, in absence of corroboration, the same cannot be relied upon. By placing reliance on the decision of the Supreme Court rendered in Haricharan Kurmi v. State of Bihar1 followed in Dipakbhai

¶39

Jagdishchandra Patel v. State of Gujarat and another 2 , learned

¶40

1 AIR 1964 SC 1184

¶41

2 AIR 2019 SC 3363

¶42

Page No.6 of 25 IN CRA-1239-2019

¶43

counsel submits that merely on the basis of confessional statements, conviction cannot be recorded that too for an offence under Section 302 of IPC. As such, the impugned judgment of conviction and order of sentence passed by the learned trial Court is liable to be set aside and the appellants deserves to be acquitted from the said charges on the basis of benefit of doubt.

¶44

(7) Per-contra , learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. He further submits that in view of prosecution witnesses coupled with other evidence available on record, the learned trial Court has rightly convicted the appellants for the aforesaid offences. Thus, the conviction and sentence passed by the learned trial Court against the appellants is well merited and, therefore, present appeal deserves to be dismissed.

¶45

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

¶46

(9) The first and foremost question is as to whether the death of the deceased persons is homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/11), wherein it has been opined cause of

¶47

Page No.7 of 25 IN CRA-1239-2019

¶48

death of the deceased is traumatic asphyxia as a result of throttling and ribs facture and nature of death is homicidal , which is duly proved by the statement of Dr. Abhishek Gupta (PW-04). Accordingly, taking into consideration the postmortem report (Ex.P/11) and the statement of Dr. Abhishek Gupta (PW-04), who has conducted the postmortem of the dead-body of the deceased, we are of the considered opinion that the death of the deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding.

¶49

(10) Now, the next question would be whether the accusedappellants herein are the authors of the crime in question, which the learned trial Court has answered in affirmative on the basis of following finding as culled out in Para-15 of the impugned judgment, which states as under:

¶50

“15. अतः्ቚ करणमें्ቚ स्तुतउपरो्ሹ समस्तसाቌኚयकेवि�्ቨे षणउपरांतयह तथ्य्ቚ कटहोरहेहैंविकमृतकक�लसायवि नांक 08.03.2018 सेगुमशु ा थाए�ंमृतककेभतीजेआरोपीजग ीश्ቛ ाराक�लसायकीगुमशु गीके संबंधमेंवि नांक 19.03.2018 कोथानाकापूमेंसूचना ीगयीथी। तत्प्ቐात्ቇ ामकुमाकेविन�ासीमृतकक�लसायकोढूंढनेहेतुवि नांक 08.04.2018 को्ቇ ामरासकुरिरयाकेजंगलमेंगयेए�ंउनलोगोंकेसाथ आरोपीजग ीश, वि�फलए�ंशोभिभतभीसाथमेंथे।उ्ሹ तीनोंआरोपीगण ारासा्ቌीसुरेशरावि:या (अ.सा. 1) ए�ंकुमाकेअन्यलोगोंकोयह जानकारी ीगयीविकआरोपीपर ेसी्ቛ ाराक�लसायकीहत्याकीगयीहै तथाआरोपीपर ेसीके बा�मेंउनलोगोंनेक�लसायकीलाशको रासकुरिरयाकेजंगलमें फनानेमेंसहयोगविकयाहै।तत्प्ቐातउ्ሹ तीनों आरोपीकीविनशान ेहीपरउसस्थानकीजानकारी्ቚ ा्቎ हुई, जहांपरमृतक ारा क�लसायकेश�को फनविकयागयाथा।तत्प्ቐातसा्ቌीपुलिलस्ቛ सा्ቌीसुरेशरावि:याकेसम्ቌ आरोपीगणकामेमोरेण्डमलेखब्ቍ विकयेजाने ारा कातथ्यसाቌኚयमेंअखंडिडतहै।यहउ्ቤेखनीयहैविकआरोपीपर ेसी्ቛ

¶51

Page No.8 of 25 IN CRA-1239-2019

¶52

ाराक�लसाय वि येगयेमेमोरेण्डम ( शF पी. 1) मेंयहउ्ቤेखहैविकउसके्ቛ कोहाथ-मु्ሪा�लातसेसीनेमेंचोटपहुंचाकरहत्याकारिरतकीगयीहै। ारा अन्यआरोपीगण्ቛ ारावि येगयेमेमोरण्डममेंयहउ्ቤेखहैविकउनके्ቛ मृतकक�लसायकीलाशको फनानेमेंआरोपीपर ेसीकासहयोगविकया गयाहै।उ्ሹ संबंधमेंसा्ቌीसुरेशरावि:याए�ंअनुसंधानअडिधकारीजे० लकड़ा्ቛ ारा्ቚ स्तुतसाቌኚयपरस्परसमቕኌथतहोकरअखंडिडतहै।यह उ्ቤेखनीयहैविकआरोपीगण्ቛ ारा ीगयीजानकारीकेपरिरणामस्�रूपही मृतकक�लसायकीहत्याकेतथ्यकीजानकारीहुईहैतथा्ቚ करणमें उपलब्धसंपूणF साቌኚयकेपरिर्ቚेቌኚयमेंउ्ሹ जानकारीक�लसायकीहत्यातथा उसकेश�को फनानेकेतथ्यसेस्प्ቖतयासंबंडिधतहै।अतःअभिभयु्ሹगणसे ा्቎ उ्ሹ जानकारीकोधारा 27 भारतीयसाቌኚयअडिधविनयमकेतहतसाविबत माननेमेंकोईवि�डिधकअड़चन्ቚ कटनहींहोरहीहै।डिचविकत्सीयसा्ቌीडॉ. अभिभषेकगु्቎ा (अ.सा. 4) ारा्ቚ स्तुतडिचविकत्सीयसाቌኚयकेआधारपरइस तथ्यकीपुवि्ቖ होरहीहैविकमृतककीमृत्युश�परी्ቌणअ�डिधसेएकसेडेढ़ माहकेपहलेविकसीके्ቛ ारागला बानेकारणगलेकीह्ቂीटूटजानेके फलस्�रूप्ቫ ासरूकजानेसेहुईहैए�ंउ्ሹ मृत्युकी्ቚ कृडितहत्यात्मकहै। अनुसंधानअडिधकारी्ቛ ाराअनुसंधानसंबंधीकोई्ቔु विटयाअविनयविमतताभी नहींकीगयीहै।अतःउ्ሹ समस्तआधारोंपरयहपायाजाताहैविक अभिभयोजनअपनेमामलेकेअंतगFतयुवि्ሹयु्ሹ सं ेहसेपरेयह्ቚ माभिणतकरने मेंसफलरहाहैविकआरोपीपर ेसी्ቛ ारावि नाँक 08.03.2018 सेवि नांक 08.04.2018 केमध्यहोलीत्यौहारकेएकवि नपहल्ቇ ाम-कुमा रासकुरिरया, थाना-कापू, धरमजयगढ़, जिजलारायगढ़्ቌे्ቔ ाडिधकारमेंक�लसाय कोर�ाकीहत्याकरनेकेआशयसेअथ�ाउसीऐसीशारीरिरक्ቌ डितकरनेके आशयसेजिजसकेबारेमें�हयहजानताथाविकमृत्युकारिरतहोनासम्भाव्य है, क�लसायकोर�ाकोहाथ- मु्ሪासेए�ंसीनेमेंलातमारकरक�लसाय कीहत्याकारिरतकीगईए�ंआरोपीपर ेसीउफF रडितरामउफF रातूराम, वि�फल, जग ीशए�ंशोभिभत्ቛ ारावि नाँक 08.03.2018 सेवि नांक 08.04.2018 केमध्यहोलीत्यौहारकेएकवि नपहल्ቇ ाम-कुमा रासकुरिरया, थाना-कापू, धरमजयगढ़, जिजला रायगढ़्ቌे्ቔ ाडिधकार में में सहअभिभयु्ሹगणकेसाथविमलकरक�लसायकोर�ाकेश�कोजमीनमें गाड़करउसेछुपाएजानेकासामान्यआशयबनायागया, जिजसकेबारेमें�ह यहजानतेथेयावि�्ቫासकरनेकाकारणरखतेथेविकक�लसायकोर�ाकी हत्याकारिरतकीगयीहै।ए�ंउ्ሹ संबंधमेंआरोपीपर ेसीउफF रडितरामने स्�यंको�ैध ण्डसे्ቚ डितच्छावि तकरनेहेतुए�ंआरोपीवि�फल, जग ीशए�ं शोभिभतनेपर ेसीउफF रडितरामको�ैध ण्डसे्ቚ डितच्छावि तकरनेहेतु क�लसायकोर�ाकेश�कोतोमीआमापहाड़केनीचेढलानमेंसरईझाड़के पासजमीनमेंगाड़करसाቌኚयकावि�लोपविकयाए�ंक�लसायकोर�ाकेगुम ” होनेकेसंबंधमेंथानेमेंझू:ीइलि_ला ीगई।

¶53

(11) Since the present case is based on circumstantial evidence, therefore, before proceeding further, it is profitable here to note

¶54

Page No.9 of 25 IN CRA-1239-2019

¶55

following five golden principles laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda vs.

¶56

State of Maharashtra3 which constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence and same read as under:

¶57

“153.…. (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

¶58

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra, (1973) 2 SCC 793 where the following observations were made:

¶59

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

¶60

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty,

¶61

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

¶62

(4) they should exclude every possible hypothesis except the one to be proved, and

¶63

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have

¶64

3 (1984) 4 SCC 116

¶65

Page No.10 of 25 IN CRA-1239-2019

¶66

been done by the accused.”

¶67

(12) In the case at hand, in order to hold the appellants guilty, the learned trial Court after holding the deceased of the deceased to be homicidal in nature, firstly relied upon the fact that in the memorandum statement of the appellant No.01 recorded vide Ex.P/01, he has admitted commission of murder of the deceased and, thereafter, relied upon the memorandum statements of the appellants No.02 to 04 recorded vide Ex.P/03 to P/05, whereby they have implicated the appellant No.01 to be the author of murder of the deceased and also stated that they have helped him in burying the dead-body of the deceased.

¶68

(13) So far as reliance placed by the learned trial Court on the memorandum statement of the appellant No.01 recorded vide Ex.P/01 is concerned, the learned trial Court has held it to be admissible, which is contrary to the well settled law.

¶69

(14) In this regard, it would be appropriate to notice Section 27 of the Indian Evidence Act, 1872, which states as under: -

¶70

“ 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.”

¶71

Page No.11 of 25 IN CRA-1239-2019

¶72

(15) The Supreme Court in the matter of Mani v. State of Tamil Nadu 4, considering the nature, scope and applicability of Section 27 of the Indian Evidence Act, 1872, has held that discovery is a weak kind of evidence and cannot be wholly relied upon and has observed the following in paragraph 26 of the judgment :-

¶73

“26. The discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case. We have already held that the prosecution has failed to prove that the house where alleged bloodstains were found belonged exclusively or was possessed exclusively by the appellant, we have further pointed out that the discovery was absolutely farcical. There is one other very relevant factor ignored by both the courts that the prosecution never made any attempts to prove that the clothes belonged to the appellants. There is literally no evidence to suggest anything to that effect. Therefore, even if we accept the discovery, it does not take us anywhere near the crime. Both the courts below have ignored this very important aspect. Once these two important circumstances are disbelieved, there is nothing which would remain to support the prosecution theory.”

¶74

(16) 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.

¶75

(17) The Supreme Court in Asar Mohammad and others v. State of U.P. 5 with reference to the word “fact” employed in

¶76

4 (2009) 17 SCC 273

¶77

5 AIR 2018 SC 5264

¶78

Page No.12 of 25 IN CRA-1239-2019

¶79

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 or 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

¶80

Pulukuri Kotayya v. King Emperor 6 observed as under: -

¶81

“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 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 Maharashtra⁷ , in particular, paragraphs 23 to 29 thereof. The same read thus:

¶82

“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)

¶83

6 AIR 1947 PC 67

¶84

7 (2015) 1 SCC 253

¶85

Page No.13 of 25 IN CRA-1239-2019

¶86

“… 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.”

¶87

(18) Furthermore, in Ashish Jain v. Makrand Singh and others 8, the Supreme Court has considered the issue and held that if recovery of incriminating material is not voluntary and caused by inducement, pressure or coercion, evidentiary value of such statement leading to recovery, is nullified and relying upon its earlier decision in the matter of Selvi v. State of Karnataka 9, observed as under: -

¶88

“21. As regards the recovery of incriminating material at the instance of the accused, the Investigating Officer K.D. Sonakiya, PW35, has

¶89

8 AIR 2019 SC 546

¶90

9 (2010) 7 SCC 263

¶91

Page No.14 of 25 IN CRA-1239-2019

¶92

categorically deposed that all the confessions by the accused persons were made after interrogation, but the mode of this interrogation does not appear to be of normal character, inasmuch as he himself has deposed that the accused persons were further grilled and interrogated multiple times before extracting the confessions which lead to the recovery of the ornaments, cash, weapons and key. We find from the totality of facts and circumstances that the confessions that led to the recovery of the incriminating material were not voluntary, but caused by inducement, pressure or coercion. Once a confessional statement of the accused on facts is found to be involuntary, it is hit by Article 20(3) of the Constitution, rendering such a confession inadmissible. There is an embargo on accepting selfincriminatory evidence, but if it leads to the recovery of material objects in relation to a crime, it is most often taken to hold evidentiary value as per the circumstances of each case. However, if such a statement is made under undue pressure and compulsion from the investigating officer, as in the present matter, the evidentiary value of such a statement leading to the recovery is nullified. It is noteworthy to reproduce the observations of this Court regarding the relationship between Section 27 of the Evidence Act and Article 20(3) of the Constitution in Selvi v. State of Karnataka, (2010) 7 SCC 263:

¶93

“102.As mentioned earlier “the right against selfincrimination” is now viewed as an essential safeguard in criminal procedure. Its underlying rationale broadly corresponds with two objectives —firstly, that of ensuring reliability of the statements made by an accused, and secondly, ensuring that such statements are made voluntarily. It is quite possible that a person suspected or accused of a crime may have been compelled to testify through methods involving coercion, threats or inducements during the investigative stage. When a person is compelled

¶94

Page No.15 of 25 IN CRA-1239-2019

¶95

to testify on his/her own behalf, there is a higher likelihood of such testimony being false. False testimony is undesirable since it impedes the integrity of the trial and the subsequent verdict. Therefore, the purpose of the “rule against involuntary confessions” is to ensure that the testimony considered during trial is reliable. The premise is that involuntary statements are more likely to mislead the Judge and the prosecutor, thereby resulting in a miscarriage of justice. Even during the investigative stage, false statements are likely to cause delays and obstructions in the investigation efforts.

¶96

We are of the opinion that the recovery of the stolen ornaments, etc. in the instant matter was made on the basis of involuntary statements, which effectively negates the incriminating circumstance based on such recovery, and severely undermines the prosecution case.”

¶97

(19) Similarly, the Supreme Court in the matter of Surinder

¶98

Kumar Khanna v. Intelligence Officer, Directorate of Revenue Intelligence10 has held that in absence of any substantive evidence, it would be inappropriate to base conviction of appellant purely on statements of co-accused.

¶99

(20) Reverting to the facts of the present case in light of the abovequoted principles of law laid down by their Lordships of the Supreme Court in above judgments, it is quite vivid that it is the confessional statement of the appellant No.01 that he has caused

¶100

10 (2018) 8 SCC 271

¶101

Page No.16 of 25 IN CRA-1239-2019

¶102

murder of the deceased, however, the said statement is inadmissible in evidence and, therefore, the learned trial Court is absolutely unjustified in convicting the appellant No.01 on the basis of his confessional/memorandum statement. We hereby hold accordingly.

¶103

(21) The next aspect that has been relied upon by the learned trial Court is that the appellants No.02 to 04 in their memorandum statements recorded vide Ex.P/03 to Ex.P/05 have implicated the appellant No.01 to be the author of murder of the deceased and they have helped him in burying the dead-body of the deceased.

¶104

(22) In this regard, it would be relevant here to notice Section 30 of the Indian Evidence Act, 1872, which states as under: -

¶105

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

¶106

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.

¶107

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

¶108

(23) 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

¶109

Page No.17 of 25 IN CRA-1239-2019

¶110

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: -

¶111

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

¶112

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

¶113

(24) Section 30 of the Evidence Act came up for consideration before their Lordships of the Supreme Court in Haricharan Kurmi (Constitution Bench) (supra) 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: -

¶114

Page No.18 of 25 IN CRA-1239-2019

¶115

“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. ...

¶116

… 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

¶117

Page No.19 of 25 IN CRA-1239-2019

¶118

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.

¶119

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

¶120

(25) The principle of law laid down in Haricharan Kurmi (supra) has been followed recently by the Supreme Court in Dipakbhai Jagdishchandra Patel (supra). 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

¶121

Page No.20 of 25 IN CRA-1239-2019

¶122

used in support of other evidence (see Kashmira Singh v. State of Madhya Pradesh 11, Nathu v. State of Uttar Pradesh 12 and Govt. of NCT of Delhi v. Jaspal Singh 13.)

¶123

(26) In the matter of Surinder Kumar Khanna v. Intelligence Officer, Directorate of Revenue Intelligence 14, their Lordships of the Supreme Court have summarised the law relating to scope of Section 30 of the Evidence Act and observed as under: -

¶124

“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)

¶125

“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

¶126

11 AIR 1952 SC 159

¶127

12 AIR 1956 SC 56

¶128

13 (2003) 10 SCC 586

¶129

14 (2018) 8 SCC 271

¶130

Page No.21 of 25 IN CRA-1239-2019

¶131

Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbutty¹⁵ a confession can only be used to “lend assurance to other evidence against a coaccused”. In Periaswami Moopan , In re¹⁶ Reilly, J., observed that the provision of Section 30 goes not further than this: (SCC OnLine Mad)

¶132

‘… 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’.

¶133

In Bhuboni Sahu v. R.¹⁷ the Privy Council has expressed the same view. Sir John Beaumont who spoke for the Board, observed that: (SCC OnLine PC)

¶134

‘… 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’.

¶135

15 ILR (1911) 38 Cal 559 at p. 588

¶136

16 1930 SCC OnLine Mad 86 : ILR (1931) 54 Mad 75 at p. 77

¶137

17 1949 SCC OnLine PC 12 : (1948-49) 76 IA 147 at p. 155

¶138

Page No.22 of 25 IN CRA-1239-2019

¶139

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 coaccused 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.”

¶140

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.¹⁸

¶141

(27) Reverting to the facts of the case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court

¶142

in Haricharan Kurmi (supra), Dipakbhai Jagdishchandra Patel

¶143

(supra) and Surinder Kumar Khanna (supra) and considering the

¶144

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

¶145

Page No.23 of 25 IN CRA-1239-2019

¶146

provisions contained in Section 30 of the Evidence Act, it is quite vivid that confessional statement of co-accused 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 co-accused, conviction with the aid of Section 30 of the Evidence Act cannot be made by the courts. Consequently, the confessional statements of the appellants No.02 to 04 cannot be relied upon in the present case.

¶147

(28) As such, in light of above analysis of law on the point, the conviction of the appellant No.01 on the basis of alleged memorandum statements of the appellants No.02 to 04 cannot be recorded in absence of any further corroboration and the learned trial Court is absolutely unjustified in relying upon the same to hold the appellant No.01 guilty of the offence of murder of the deceased. We hereby hold accordingly.

¶148

(29) Consequently, in view of above discussion, the conviction of the appellant No.01 for offence under Section 302 & 201/34 of IPC deserves to be set aside and he is liable to be acquitted of the said charges on the basis of benefit of doubt.

¶149

Page No.24 of 25 IN CRA-1239-2019

¶150

(30) As regards conviction of appellants No.02 to 04 is concerned, since the conviction of the main accused i.e. appellant No.01 for offence under Section 302 & 201/34 of IPC is set aside by us in above paragraph, therefore, the conviction of the appellants No.02 to 04 for offence under Section 201/34 of IPC also deserves to be set aside and they are also liable to be acquitted of the said charge on the basis of benefit of doubt.

¶151

(31) In view of the foregoing analysis, we are unable to hold that the prosecution has been able to prove the five golden principles to constitute the ‘panchsheel’ of proof of a case based on circumstantial evidence, as laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda (supra), in absence of which, the learned trial Court is unjustified in convicting the appellants for offence under Section 302 and 201/34 of IPC respectively being the authors of the crime in question in light of the findings as culled out in Para-15 of the impugned judgment and same are liable to be set aside.

¶152

(32) Accordingly, we hereby set aside the conviction so recorded and the sentence so awarded by the trial Court to all the appellants vide the impugned judgment dated 29.04.2019. All the appellants are acquitted of the charges under Sections 302 & 201/34 of the IPC respectively on the basis of benefit of doubt. The appellant No.01 is reported to be in jail, therefore, we direct that he be released from jail forthwith, if not required is any other

¶153

Page No.25 of 25 IN CRA-1239-2019

¶154

offence/crime. Since the appellants No.02 to 04 are already on bail, therefore, they need not to surrender, but their bails bonds shall remain in force for a period of 06 months in view of provisions contained under Section 437-A of CrPC.

¶155

(33) This criminal appeal is allowed .

¶156

(34) Let a certified copy of this judgment alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellants are languishing for necessary information and action.

¶157

Sd/Sd/- (Sanjay K. Agrawal) (Amitendra Kishore Prasad) Judge Judge

¶158

s@if

Pardeshi @ Ratiram @ Raturam v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Pardeshi @ Ratiram @ Raturam v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ajay Raj Vs State of Chhattisgarh

Arjun Gond Vs State Of Chhattisgarh

Vishnu Sahu Vs State of Chhattisgarh

Fitul Korva Vs State of Chhattisgarh

Dilip Kumar Jha Vs State of Chhattisgarh

Narendra Ram & Others Vs State of Chhattisgarh