Pawan Kumar Dewangan Vs State Of Chhattisgarh

4. Pinki Dewangan, aged about 28 years, W/o Jay Kumar Dewangan, R/o Akhrabhantha, Police Station Sakti, at present address – Kanwarpara, Champa, Police Station Champa, District Janjgir-Champa (C.G.)

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... Appellant(s)

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Versus

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State of Chhattisgarh, through: Station House Officer, Police Station Champa, District Janjgir-Champa (C.G.)

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... Respondent(s)

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:- For Appellants Mr. B.P. Singh, Advocate. For Respondent/State :- Mr. Sharad Mishra, P.L.

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Division Bench

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

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Judgment on Board [13.03.2024]

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(Cr. A. No. 1973 of 2017)

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Sanjay K. Agrawal, J.

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1. Invoking criminal appellate jurisdiction of this Court, this criminal appeal under Section 374(2) of the Code of Criminal Procedure (in short ‘CrPC’) has been filed by the four appellants herein, i.e., A-1 Pawan Dewangan, A-2 Jitesh Dewangan, A-3 Dhanbai Dewangan and A-4 Pinki Dewangan, questioning the legality, validity and correctness of judgment & order dated 6.12.2017 passed by learned Sessions Judge, Janjgir-Champa (in short ‘Trial Court’) in Sessions Case No.16/2017, by which each of the appellants has been convicted for the offences punishable under Sections 302/34 and 201 of the Indian Penal Code (in short ‘IPC’) and sentenced as under:-

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Conviction	Sentence
1.Under Section 302/34 of IPC.	1.Imprisonment for Life. 2.Fine of Rs.100/-. 3.In default of payment of fine, to undergo additional Rigorous Imprisonment for 10 days.
2.Under Section 201 of IPC.	1.Rigorous Imprisonment for Seven years. 2.Fine of Rs.100/-. 3.In default of payment of fine, to undergo additional Rigorous Imprisonment for 10 days.

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All sentences have been directed to run concurrently.

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(Cr. A. No. 1973 of 2017)

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2. The appellants were tried before the Trial Court for the offences punishable under Sections 302, 201/34 on the charges that on 14.10.2016 between 6:00 pm to 7:10 pm, the appellants, in their house situated at Kanwarpara, Champa, in furtherance of their common object, strangulated Sandhya Dewangan (wife of A-1 Pawan Dewangan, daughter-in-law of A-2 Jitesh Dewangan and A-3 Dhanbai Dewangan and sister-inlaw of A-4 Pinki Dewangan) to death by catching hold of her hands and legs and pressing her mouth with pillow and blanket cover and thereafter, in order to screen themselves from legal punishable, concealed the evidence of the said crime on false plea.

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Factual matrix of the case, in a narrow compass:

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3. On 15.10.2016 in the midnight at about 12:45 am, A-1 Pawan Dewangan lodged an oral report at Police Station Champa stating that his marriage was solemnized with deceased Sandhya Dewangan in the month of February, 2015 and from their wedlock, they had a daughter. He reported that in the evening of 14.10.2016, health of his wife Sandhya Dewangan suddenly got deteriorated and her face, lips and neck got swollen and her tongue also got swollen and came

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out of her mouth. He along with his parents and friends took her to Masihi Hospital, Champa at about 6:45 pm where she was treated by Dr. Sandeep Nath (PW-9) but she died at about 7:15 pm during the course of her treatment.

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4. On the aforesaid report of A-1 Pawan Dewangan, Merg Intimation (Exhibit P-14) was recorded and the investigation was started by Abhinav Kant Singh (PW-15), Station In-charge, Police Station Champa. The dead-body of deceased Sandhya Dewangan was subjected to post-mortem which was conducted by Dr. Sarita Nagarchi (PW-11) along with Dr. Hemendra Jaiswal vide Exhibit P-10 in which mode of death of deceased Sandhya Dewangan was opined to be coma due to cardio-respiratory arrest and her viscera were preserved for chemical analysis. Statements of the witnesses were recorded. FIR was registered vide Exhibit P-30. Sketch Map of the place of incident was prepared vide Exhibit P-16 and Nazri Naksha was also prepared by Patwari (PW-1) vide Exhibit P-3. Vide Exhibits P-11, 12 & 13, Dr. Sarita Nagarchi (PW-11) along with Dr. Hemendra Jaiswal gave their opinion on the queries put forth by the Investigating Officer

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regarding the nature of death of deceased Sandhya Dewangan and other material particulars.

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5. Memorandum statement of A-1 Pawan Dewangan was recorded vide Exhibit P-5 pursuant to which, a pillow, a saree and a blanket cover made of saree were seized vide Exhibit P-6. The appellants were arrested. Seized articles were subjected to chemical analysis at Forensic Science Laboratory (in short ‘FSL’). In the FSL report received vide Exhibit P-28, blood was found on the blanket cover (‘A’) seized pursuant to the memorandum statement of A-1 Pawan Dewangan. However, in the FSL report (Exhibit P-29), no chemical poison was found on the viscera of the deceased.

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6. After completion of the investigation, the appellants were charge-sheeted for the offences punishable under Section 302, 201/34 of IPC before the Judicial Magistrate First Class, Champa from where the matter, being triable by the Sessions Court, committed to the Trial Court for trial and disposal in accordance with law, where the charges framed were read out and explained to the appellants who abjured their guilt, pleaded false implication and prayed for trial.

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7. During the course of trial, in order to bring home the offence, prosecution examined as many as 16 witnesses as PW-1 to PW-16 and exhibited 35 documents vide Exhibits P-1 to P-35. Statements of the accused appellants were recorded under Section 313 of CrPC in which they denied the circumstances appearing against them in the evidence of the prosecution, pleaded innocence and false implication. However, in defence, though no witness has been examined but the statement of Smt. Kavita Dewangan has been relied on as Exhibit D-1.

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8. After conclusion of the trial, the Trial Court, by impugned judgment & order dated 6.12.2017, on appreciation of the oral and documentary evidence available on record, found the appellants guilty of the offence punishable under Section 302/34 & 201 of IPC and accordingly convicted and sentenced them in the manner as mentioned at the table shown in the opening paragraph of this judgment, assailing which the present appeal has been filed jointly by the four appellants herein.

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: Submissions of learned Counsel for parties

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9. Mr. B.P. Singh, learned counsel appearing for the appellants, would submit that the prosecution has not been able to bring home the offence beyond reasonable doubt and therefore the appellants are entitled for acquittal of the offences in question. He would further submit that A-1 Pawan Dewangan has been implicated by virtue of Section 106 of the Indian Evidence Act (in short ‘the Evidence Act’) whereas the prosecution has failed to discharge its primary burden of proving the case beyond reasonable doubt. A-2 Jitesh Dewangan, A-3 Dhanbai Dewangan and A-4 Pinki Dewangan are father, mother and sister respectively of A-1 Pawan Dewangan and they have been made accused only on the basis of memorandum statement of A-1 Pawan Dewangan, which runs contrary to the decision rendered by the Supreme Court in the matter of Haricharan Kurmi v. State of Bihar1 . The appellants as such are entitled for acquittal and their appeal deserves to be allowed.

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1 AIR 1964 SC 1184

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10. Mr. Sharad Mishra, learned Panel Lawyer appearing for the State, opposing the appeal, would submit that it has been stated by PW-2 Shivprasad Dewangan, PW-3 Jairam Dewangan, PW-4 Kavita Dewangan, PW5 Ramnath Dewangan, PW-6 Rambharosh Dewangan and PW-7 Raghunath Dewangan in their statement that A-1 Pawan Dewangan and deceased Sandhya Dewangan both were residing together and A-1 Pawan Dewangan used to torture and ill-treat the deceased stating that she does not know how to cook food and how to perform household works properly. Their marriage was solemnized in the month of February, 2015 and on 14.10.2016 she died in most suspicious circumstances and it was incumbent upon A-1 Pawan Dewangan to explain in his Section 313 CrPC statement as to how and under what circumstances she died. Further, Dr. Sandeep Nath (PW-9) in his OPD examination report (Exhibit P-8) has clearly mentioned that ‘foul play cannot be ruled out’ as A-1 Pawan Dewangan did not answer the queries raised by Dr. Nath while Sandhya Dewangan was being admitted to the hospital. Furthermore, in the post-

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mortem report (Exhibit P-10) also it has been clearly mentioned that face, tongue and neck of deceased Sandhya Dewangan was swollen and reddish and there were fractures in her ribs and xiphisternum and the mode of her death was coma due to cardiorespiratory failure and the nature of death was opined possibly to be homicidal. Moreover, pursuant to the memorandum statement of A-1 Pawan Dewangan (Exhibit P-5), seizure of pillow, saree and blanket cover was made and, in the FSL report (Exhibit P-28), blood was found on the seized blanket cover and which has also not been explained by A-1 Pawan Dewangan. Conviction of A-1 Pawan Dewangan therefore is well merited. In addition, learned State Counsel would also submit that the conviction of A-2 Jitesh Dewangan, A-3 Dhanbai Dewangan and A-4 Pinki Dewangan has been arrived at by the Trial Court on the basis of the memorandum statement of A-1 Pawan Dewangan and as such their conviction also is well merited. In that view of the matter, according to learned State Counsel, all the appellants do not entitle for acquittal and their appeal deserves dismissal.

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: Discussion and Legal Analysis

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11. We have heard learned counsel for parties, considered their rival submissions made herein-above and also gone through the record with utmost circumspection.

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12. The first and foremost question is, as to whether the death of deceased Sandhya Dewangan was homicidal in nature?

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13. With regard to this question as to whether the death of deceased Sandhya Dewangan was homicidal or otherwise, the Trial Court has relied upon the statement of Dr. Sarita Nagarchi (PW-11) who has conducted post-mortem examination of deceased Sandhya Dewangan along with Dr. Hemendra Jaiswal and proved the post-mortem report (Exhibit P-10) in which the face, tongue and neck of the deceased was found to be swollen and reddish and there were fractures also found in her ribs and xiphisternum and the mode of her death was opined to be coma due to cardio-respiratory failure and the nature of death was also opined possibly to be homicidal. The Trial Court further relied on the Exhibits P-11, P-12 & P-13 in which Dr. Nagarchi (PW-11) has also given her opinion

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on the queries raised by the Investigation Officer (PW-15) stating that the death may be caused due to forceful pressing of whole face, mouth and nose of the deceased using pillow and blanket cover. In addition to this, the Trial Court has also relied upon the statement of Dr. Sandeep Nath (PW-9) who had given primary treatment to the deceased and made the OPD examination report (Exhibit P-8) in which he found the face, neck and tongue of the deceased swollen and the possibility of foul play has been suggested by him in respect of her death; coupled with the fact that in the FSL report (Exhibit P-29) no chemical poison was found on the viscera of the deceased. Thus, on the basis of the evidence available on record, the Trial Court has found proved that the nature of death of deceased Sandhya Dewangan was homicidal, which, in our considered opinion, is correct finding of fact based on evidence available on record and it is neither perverse nor contrary to record. Accordingly, we hereby affirm the said finding of the Trial Court holding that the death of deceased Sandhya Dewangan was homicidal in nature.

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14. Considering the evidence available on record, we will first consider and decide the appeal of A-1 Pawan Dewangan separately, as the Trial Court has recorded the conviction of A-2 Jitesh Dewangan, A-3 Dhanbai Dewangan and A-4 Pinki Dewangan based on the memorandum statement of A-1 Pawan Dewangan made vide Exhibit P-5.

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: Appeal of A-1 Pawan Dewangan

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15. Since the case of the prosecution is not based on direct evidence rather it is based on circumstantial evidence, it would be appropriate to notice the most celebrated judgment of the Supreme Court rendered in the matter of Sharad Birdhichand Sarda v. State of Maharashtra2 in which the five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence, have been catalogued in paragraph-153 which reads thus:-

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“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

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2 (1984) 4 SCC 116

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(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. 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 v. State of Maharashtra, (1973) 2 SCC 793, where the following observations were made:

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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.

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(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,

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

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

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

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16. The Trial Court has convicted A-1 Pawan Dewangan basically on the incriminating circumstances that the motive of the offence has been established as the deceased Sandhya Dewangan was being tortured and ill-treated by A-1 Pawan Dewangan on account of not cooking food and not doing household works properly. Further, the Trial Court also found proved that A-1 Pawan Dewangan was residing with his wife, deceased Sandhya Dewangan, in the suit house and in his statement recorded under Section 313 of CrPC he has failed to explain as to how and under what circumstances she died in his house. Furthermore, Dr. Sandeep Nath (PW-9) while conducting the MLC of deceased Sandhya Dewangan vide OPD examination report (Exhibit P-8) has clearly mentioned that ‘foul play cannot be ruled out’ pointing towards the guilt of A-1 Pawan Dewangan as he did not give any satisfactory explanation to the queries raised by Dr.

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Nath and also offered false plea that Sandhya Dewangan had died on account of thyroid, while lodging Merg Intimation (Exhibit P-14). Lastly, pursuant to the memorandum statement (Exhibit P-5) of A-1 Pawan Dewangan, a pillow, saree and blanket cover were recovered vide Exhibit P-6 and in the FSL

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report (Exhibit P-28), blood was found on the blanket cover, for which A-1 Pawan Dewangan has also failed to give any explanation.

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(i) Motive of the offence:-

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17. The Trial Court has found prove the motive of the offence, as admittedly the marriage of A-1 Pawan Dewangan was solemnized with deceased Sandhya Dewangan on 22.2.2015 and she died on 14.10.2016 under suspicious circumstances and as per the statement of PW-2 Shivprasad Dewangan, PW-3 Jairam Dewangan, PW-4 Kavita Dewangan, PW-5 Ramnath Dewangan, PW-6 Rambharosh Dewangan and PW-7 Raghunath Dewangan, the relationship of A-1 Pawan Dewangan with his wife, deceased Sandhya Dewangan, was not cordial and he used to torture and ill-treat her on the ground that she did not know how to cook food and perform household works properly,

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as recorded in paragraph-46 of the impugned judgment. Thus, the finding arrived at by the Trial Court in respect of the motive of the offence to be found established, is correct finding of fact based on evidence available on record and we hereby affirm the said finding of the Trial Court.

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:(ii) Applicability of Section 106 of the Evidence Act

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18. The Trial Court in paragraph-81 of the impugned judgment has also recorded the finding that A-1 Pawan Dewangan and his wife, deceased Sandhya Dewangan, were residing together in the suit house situated at Champa and A-1 Pawan Dewangan in his statement recorded under Section 313 of CrPC has failed to explain as to how and under what circumstances she died in his house and hence applied Section 106 of the Evidence Act.

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19. In this regard, in the matter of Balvir Singh v. State of Uttarakand 3, their Lordships of the Supreme Court, reviewing its earlier decision on the point of Section 106 of the Evidence Act, have held that Section 106 has to be applied in criminal cases with care and caution and held in paragraphs 41 to 48 as under:-

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3 2023 SCC OnLine SC 1261

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“41. Thus, from the aforesaid decisions of this Court, it is evident that the court should apply Section 106 of the Evidence Act in criminal cases with care and caution. It cannot be said that it has no application to criminal cases. The ordinary rule which applies to criminal trials in this country that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the provisions contained in Section 106 of the Evidence Act.

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42. Section 106 cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. This section cannot be used to support a conviction unless the prosecution has discharged the onus by proving all the elements necessary to establish the offence. It does not absolve the prosecution from the duty of proving that a crime was committed even though it is a matter specifically within the knowledge of the accused and it does not throw the burden of the accused to show that no crime was committed. To infer the guilt of the accused from absence of reasonable explanation in a case where the other circumstances are not by themselves enough to call for his explanation is to relieve the prosecution of its legitimate burden. So, until a prima facie case is established by such evidence, the onus does not shift to the accused.

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43. Section 106 obviously refers to cases where the guilt of the accused is established on the evidence produced by the prosecution unless the accused is able to prove some other facts especially within his

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knowledge which would render the evidence of the prosecution nugatory. If in such a situation, the accused gives an explanation which may be reasonably true in the proved circumstances, the accused gets the benefit of reasonable doubt though he may not be able to prove beyond reasonable doubt the truth of the explanation. But if the accused in such a case does not give any explanation at all or gives a false or unacceptable explanation, this by itself is a circumstance which may well turn the scale against him. In the language of Prof. Glanville Williams:

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“All that the shifting of the evidential burden does at the final stage of the case is to allow the jury (Court) to take into account the silence of the accused or the absence of satisfactory explanation appearing from his evidence.”

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44. To recapitulate the foregoing : What lies at the bottom of the various rules shifting the evidential burden or burden of introducing evidence in proof of one's case as opposed to the persuasive burden or burden of proof, i.e., of proving all the issues remaining with the prosecution and which never shift is the idea that it is impossible for the prosecution to give wholly convincing evidence on certain issues from its own hand and it is therefore for the accused to give evidence on them if he wishes to escape. Positive facts must always be proved by the prosecution. But the same rule cannot always apply to negative facts. It is not for the prosecution to anticipate and eliminate all possible

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defences or circumstances which may exonerate an accused. Again, when a person does not act with some intention other than that which the character and circumstances of the act suggest, it is not for the prosecution to eliminate all the other possible intentions. If the accused had a different intention that is a fact especially within his knowledge and which he must prove (see Professor Glanville Williams— Proof of Guilt, Ch. 7, page 127 and following) and the interesting discussion— para 527 negative averments and para 528 —“require affirmative counter-evidence” at page 438 and foil, of Kenny's outlines of Criminal Law, 17th Edn. 1958.

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45. But Section 106 has no application to cases where the fact in question having regard to its nature is such as to be capable of being known not only by the accused but also by others if they happened to be present when it took place. From the illustrations appended to the section, it is clear that an intention not apparent from the character and circumstances of the act must be established as especially within the knowledge of the person whose act is in question and the fact that a person found travelling without a ticket was possessed of a ticket at a stage prior in point of time to his being found without one, must be especially within the knowledge of the traveler himself: see Section 106 of the Indian Evidence Act, illustrations (a) and (b).

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46. A manifest distinction exists between the burden of proof and the burden of going forward with the evidence. Generally, the

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burden of proof upon any affirmative proposition necessary to be established as the foundation of an issue does not shift, but the burden of evidence or the burden of explanation may shift from one side to the other according to the testimony. Thus, if the prosecution has offered evidence which if believed by the court would convince them of the accused's guilt beyond a reasonable doubt, the accused is in a position where he should go forward with counter-vailing evidence if he has such evidence. When facts are peculiarly within the knowledge of the accused, the burden is on him to present evidence of such facts, whether the proposition is an affirmative or negative one. He is not required to do so even though a prima facie case has been established, for the court must still find that he is guilty beyond a reasonable doubt before it can convict. However, the accused's failure to present evidence on his behalf may be regarded by the court as confirming the conclusion indicated by the evidence presented by the prosecution or as confirming presumptions which might have been rebutted. Although not legally required to produce evidence on his own behalf, the accused may therefore as a practical matter find it essential to go forward with proof. This does not alter the burden of proof resting upon the prosecution (Wharton's Criminal Evidence, 12th Edn. 1955, Vol. 1, Ch. 2 p. 37 and foil). Leland v. State reported in 343 U.S. 790=96 L.Ed. 1302, Raffel v. U.S. reported in 271 U.S. 294=70 L.Ed. 1054.

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WHAT IS “PRIMA FACIE CASE” IN THE CONTEXT OF SECTION 106 OF THE EVIDENCE ACT?

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47. The Latin expression prima facie means “at first sight”, “at first view", or "based on first impression". According, to Webster’s Third International Dictionary (1961 Edn.), “prima facie case” means a case established by “prima facie evidence” which in turn means “evi-Ideuce sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted”. In both civil and criminal law, the term is used to denote that, upon initial examination, a legal claim has sufficient evidence to proceed to trial or judgment. In most legal proceedings, one party (typically, the plaintiff or the prosecutor) has a burden of proof, which requires them to present prima facie evidence for each element of the charges against the defendant. If they cannot present prima facie evidence, or if an opposing party introduces contradictory evidence, the initial claim may be dismissed without any need for a response by other parties.

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48. Section 106 of the Evidence Act would apply to cases where the prosecution could be said to have succeeded in proving facts from which a reasonable inference can be drawn regarding death. ”

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20. The Supreme Court in the matter of Nagendra Sah v. State of Bihar4 , in paragraphs 16 & 19, held as

under:-

4 (2021) 10 SCC 725

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"16 . As can be seen from the evidence of the prosecution witnesses, the in-laws of the deceased were very much staying in the same premises where the appellant and deceased were staying. PW 1 stated that he saw the father-in-law of the deceased extinguishing the fire. The learned Trial Judge has specifically discarded the testimony of PWs 1 to 5. But PW 6 Shri Vijay Kumar Gupta stated that he noticed that family members of the accused were extinguishing the fire. The evidence adduced by the prosecution shows that at the time of the alleged incident, there were other members of the family of the accused with the accused in his house. However, it is not even the case of the prosecution that the relationship between the appellant and his deceased wife was strained or that the relationship between the deceased wife and the appellant’s parents was strained. On the contrary, some of the prosecution witnesses have stated that their relationship was cordial.

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19. In this case, as mentioned above, neither the prosecution witnesses have deposed to that effect nor any other material has been placed on record to show that the relationship between the appellant and the deceased was strained in any manner. Moreover, the appellant was not the only person residing in the house where the incident took place and it is brought on record that the parents of the appellant were also present on the date of the incident in the house. The fact that other members of the family of the appellant were present shows that there could be another hypothesis which cannot be altogether excluded. Therefore, it can be said that the facts established do not rule out the existence of any other

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hypothesis. The facts established cannot be said to be consistent only with one hypothesis of the guilt of the appellant. "

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21. In the instant case, the Trial Court, taking into consideration the evidence of PW-2 Shivprasad Dewangan, PW-3 Jairam Dewangan, PW-4 Kavita Dewangan, PW-5 Ramnath Dewangan, PW-6 Rambharosh Dewangan and PW-7 Raghunath Dewangan has found proved that the relationship of A-1 Pawan Dewangan with his wife, deceased Sandhya Dewangan, was not cordial one. Further, from the statement of PW-2 Shivprasad Dewangan, PW-3 Jairam Dewangan, PW-5 Ramnath Dewangan and PW-6 Rambharosh Dewangan also it is clear that A-1 Pawan Dewangan along with his wife, deceased Sandhya Dewangan, was separately residing in the suit house, which is also evident from the sketch map of the spot (Exhibit P-16) and no one was residing there and A-1 Pawan Dewangan in his statement recorded under Section 313 of CrPC has not been able to explain and state that as to how and under what circumstances his wife died in his house. Thus, in view of the said facts and

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circumstances and also bearing in the mind the decisions of the Supreme Court rendered in the matters of Balvir Singh (supra) and Nagendra Sah (supra), the Trial Court as such has rightly applied Section 106 of the Evidence Act.

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22. The next incriminating circumstance that has been relied on by the Trial Court is that when Sandhya Dewangan (deceased) was admitted to Masihi Hospital, Champa, she was first examined by Dr. Sandeep Nath (PW-9) who has recorded in his OPD examination report (Exhibit P-8) that Sandhya Dewangan was brought to the hospital in serious condition at about 7:10 pm and she died about 7:20 pm and no one was there with the deceased as per the police notification (Exhibit P-7) prepared by Dr. Nath and he has also recorded a specific note in the OPD examination report (Exhibit P-8), suspecting the condition of Sandhya Dewangan, that ‘foul play cannot be ruled out’ as A-1 Pawan Dewangan did not provide any satisfactory explanation to the queries raised by Dr. Nath. Similarly, Dr. Sarita Nagarchi (PW-11), who has conducted post-mortem examination of deceased Sandhya Dewangan vide Exhibit P-10, found the face,

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tongue and neck of the deceased swollen and reddish

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and fractures were also found in her ribs and xiphisternum and, in her opinion, mode of death of the deceased was coma due to cardio-respiratory failure and the nature of death was opined possibly to be homicidal. Likewise, vide Exhibits P-11, P-12 & P-13, Dr. Sarita Nagarchi (PW-11) has also given her opinion on the queries raised by the Investigation Officer (PW-15) stating that the death may be caused due to forceful pressing of whole face, mouth and nose of the deceased using pillow and blanket and the nature of death could be homicidal subject to corroboration with evidence and circumstance. In the FSL report (Exhibit P-29), no chemical poison was found on the viscera of the deceased. Thus, the Trial Court arrived at the finding that the nature of death of deceased Sandhya Dewangan was homicidal and rightly so, as held in the preceding paragraph also.

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23. Furthermore, the other incriminating circumstance relied on by the Trial Court is that pursuant to the memorandum statement of A-1 Pawan Dewangan recorded vide Exhibit P-5, a pillow, saree and blanket cover were seized vide Exhibit P-6 and in the FSL

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report (Exhibit P-28), blood was found on the said blanket cover (‘A’). A-1 Pawan Dewangan has taken the false plea in the Merg Intimation (Exhibit P-14) that deceased Sandhya Dewangan was suffering from thyroid which led to her death. However, nothing has been brought on record by A-1 Pawan Dewangan to prove that Sandhya Dewangan was a thyroid patient.

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24. In view of the aforesaid discussion and analysis of the evidence which have come on record, we are of the considered opinion that the Trial Court is absolutely justified in convicting A-1 Pawan Dewangan for the offence punishable under Sections 302/34 & 201 of IPC which needs no interference rather deserves affirmation and which we hereby affirm.

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Appeal of A-2 Jitesh Dewangan, A-3 Dhanbai : Dewangan and A-4 Pinki Dewangan

¶144

25. Insofar as the conviction of A-2 Jitesh Dewangan, A-3 Dhanbai Dewangan and A-4 Pinki Dewangan is concerned, they have been convicted only the basis of memorandum statement (Exhibit P-5) of A-1 Pawan Dewangan which the Trial Court has accepted and used against them by virtue of Section 30 of the Evidence Act.

¶145

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¶146

(Cr. A. No. 1973 of 2017)

¶147

:- Evidentiary value of memorandum statement

¶148

26. Now, the question would be, whether the Trial Court is justified in basing the memorandum statement of the A-1 Pawan Dewangan against A-2 Jitesh Dewangan, A-3 Dhanbai Dewangan and A-4 Pinki Dewangan with the aid of Section 30 of the Evidence Act which reads as under:-

¶149

“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.

¶150

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

¶151

27. A careful perusal of the aforesaid provision of law

¶152

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

¶153

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¶154

(Cr. A. No. 1973 of 2017)

¶155

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:-

¶156

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

¶157

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

¶158

28. Section 30 of the Evidence Act came up for

¶159

consideration before the Constitution Bench of the Supreme Court in the matter of Haricharan Kurmi (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 the said case, 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:-

¶160

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¶161

(Cr. A. No. 1973 of 2017)

¶162

“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 coaccused 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. ...

¶163

12. …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

¶164

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¶165

(Cr. A. No. 1973 of 2017)

¶166

against an accused person, the court cannot start with the confession of 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 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.

¶167

¶168

16. …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.”

¶169

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(Cr. A. No. 1973 of 2017)

¶171

29. The principles of law laid down in Haricharan Kurmi (supra) have been followed by the Supreme Court in v. the matter of Dipakbhai Jagdishchandra Patel State of Gujarat & Anr.5 . 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 Pradesh⁶ , Nathu v. State of Uttar Pradesh⁷ and Govt. of NCT of Delhi v. Jaspal Singh⁸ .)

¶172

30. In the matter of Surinder Kumar Khanna v. Intelligence Officer, Directorate of Revenue Intelligence9 , their Lordships of the Supreme Court have summarised the law relating to scope of Section 30 of the Evidence Act and have observed as under:

¶173

“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)

¶174

“ 12. As we have already indicated, this question has been considered on several occasions by judicial decisions

¶175

6 AIR 1952 SC 159

¶176

7 AIR 1956 SC 56

¶177

8 (2003) 10 SCC 586

¶178

9 (2018) 8 SCC 271

¶179

5 AIR 2019 SC 3363

¶180

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(Cr. A. No. 1973 of 2017)

¶182

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 Chuckerbutty (ILR 1911 38 Cal 559 at p.588) a confession can only be used to “lend assurance to other evidence against a co-accused”. In Periaswami Moopan , In re (1930 SCC OnLine Mad 86 : ILR (1931) 54 Mad 75 at p.77) Reilly, J., observed that the provision of Section 30 goes not further than this: (SCC OnLine Mad)

¶183

‘… 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’.

¶184

In Bhuboni Sahu v. R . (1949 SCC OnLine PC 12 : 1948-49 76 IA 147 at p.155) the Privy Council has expressed the same view. Sir John Beaumont who

¶185

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¶186

(Cr. A. No. 1973 of 2017)

¶187

spoke for the Board, observed that: (SCC OnLine PC)

¶188

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

¶189

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

¶190

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¶191

(Cr. A. No. 1973 of 2017)

¶192

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. ”

¶193

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

¶194

31. Now, coming to the facts of the case, in the light of Section 30 of the Evidence Act and as interpreted by the Constitution Bench in the matter of Haricharan Kurmi (supra), confession of an accused person is not a substantive piece of evidence and it cannot be made the foundation of a conviction and can only be used in support of other evidence. It is the confessional/ memorandum statement (Exhibit P-5) made by A-1 Pawan Dewangan on the basis of which, A-2 Jitesh

¶195

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¶196

(Cr. A. No. 1973 of 2017)

¶197

Dewangan, A-3 Dhanbai Dewangan and A-4 Pinki Dewangan have been convicted for the offence under Sections 302/34 & 201 of IPC. Even if the said confessional statement is taken to be true and voluntary, the question would be whether such confessional statement must be considered in view of Section 30 of the Evidence Act. Thus, in light of the principles of law laid down by their Lordships of the Supreme Court in the matters of 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 confessional statement of a coaccused 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 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, the Trial Court has held A-2 Jitesh Dewangan, A-3 Dhanbai Dewangan and A-4 Pinki Dewangan guilty of the aforesaid offences merely on the basis of the

¶198

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(Cr. A. No. 1973 of 2017)

¶200

memorandum statement (Exhibit P-5) made by A-1 Pawan Dewangan. No other evidence, ocular or circumstantial, has been established on record to hold them guilty except the memorandum statement of A-1

¶201

Pawan Dewangan whereas the memorandum statement of co-accused has to be used only as a corroborative piece of evidence.

¶202

32. In that view of the matter, it is quite established that the Trial Court has convicted A-2 Jitesh Dewangan, A-3 Dhanbai Dewangan and A-4 Pinki Dewangan only on the basis of memorandum statement of A-1 Pawan Dewangan and there is no other evidence that A-2 Jitesh Dewangan, A-3 Dhanbai Dewangan and A-4 Pinki Dewangan were party in the commission of the offences in question with A-1 Pawan Dewangan. We are of the considered opinion that the Trial Court is absolutely unjustified in convicting the other coaccused persons i.e., A-2 Jitesh Dewangan, A-3 Dhanbai Dewangan and A-4 Pinki Dewangan, with the aid of Section 30 of the Evidence Act relying upon the memorandum statement of A-1 Pawan Dewangan. Thus, we are unable to uphold the conviction of A-2 Jitesh Dewangan, A-3 Dhanbai Dewangan and A-4

¶203

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(Cr. A. No. 1973 of 2017)

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Pinki Dewangan for the offence punishable under Sections 302/34 & 201 of IPC. Accordingly, the impugned judgment & order dated 6.12.2017 so far as it relates to A-2 Jitesh Dewangan, A-3 Dhanbai Dewangan and A-4 Pinki Dewangan deserves to be and the same is hereby set-aside, acquitting them of the offences punishable under Sections 302/34 & 201 of IPC on the basis of benefit of doubt.

¶206

Conclusion & Result:

¶207

33. Concludingly, the conviction and sentence of A-1 Pawan Dewangan for the offences punishable under Sections 302/34 & 201 of IPC are affirmed. However, the conviction and sentence of A-2 Jitesh Dewangan, A-3 Dhanbai Dewangan and A-4 Pinki Dewangan for the offences punishable under Sections 302/34 & 201 of IPC are set-aside and they stand acquitted of the said offences. Even otherwise, A-2 Jitesh Dewangan, A-3 Dhanbai Dewangan and A-4 Pinki Dewangan all are reported to be on bail since 22.3.2018. They need not surrender. However, their bail-bonds shall remain in operation for a period of six months in view of the provisions contained in Section 437A of CrPC.

¶208

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(Cr. A. No. 1973 of 2017)

¶210

34. In the result, the appeal of A-1 Pawan Dewangan is dismissed and the appeal of A-2 Jitesh Dewangan, A-3 Dhanbai Dewangan and A-4 Pinki Dewangan stands allowed .

¶211

35. Let a certified copy of this judgment along with the original record be transmitted forthwith to the Trial Court and the concerned Superintendent of Jail be also supplied with a certified copy of this judgment for information and necessary action, if any, at the earliest.

¶212

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

¶213

sharad

Conviction	Sentence
1.Under Section 302/34 of IPC.	1.Imprisonment for Life. 2.Fine of Rs.100/-. 3.In default of payment of fine, to undergo additional Rigorous Imprisonment for 10 days.
2.Under Section 201 of IPC.	1.Rigorous Imprisonment for Seven years. 2.Fine of Rs.100/-. 3.In default of payment of fine, to undergo additional Rigorous Imprisonment for 10 days.

Pawan Kumar Dewangan v. State Of Chhattisgarh

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Pawan Kumar Dewangan v. State Of Chhattisgarh

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