STATE OF M P v. PREETAM — 1984 DIGILAW 400 (MP)

JUDGMENT : ( 1. ) THE respondent No. 1 Preetam was tried for an alleged offence punishable under section 302 while the respondent No. 2 ishwarlal was tried for an alleged offence punishable under section 302 read with section 34 of the Indian Penal Code for the alleged murder of one Chhita. Along with, they were further tried for an alleged offence punishable under section 379 or, in the alternative, under section 404 of the Code for having allegedly committed theft of Chhitas ornaments from his dead body and to have retained them in their possession. The trial having ended in acquittal the State has, after obtaining the requisite leave, preferred this appeal against the order of acquittal. ( 2. ) THE respondents, who are real brothers, are members of Kachhi community to which the deceased Chhita also belonged. They all lived at village karahal. The deceaseds father Jiwanlal (P. W. 6) was the headman of that community. About two months before 15-6-1973 i. e. the date of the alleged incident giving rise to this case, he had ex-communicated the respondents. It was alleged that, as a measure of retaliation, the respondents murdered his son chhita on 15-6-1973 by means of an axe at a distance of about 2 miles from the village at about 9. 10 A. M. in Sendna forest, where he had gone for the purpose of grazing cattle as usual, and deprived him of a pair of silver Kadas, a silver Chain and a pair of gold Murkis which he was wearing. ( 3. ) IT is not now in dispute that, on the morning of 15-6-1973, the deceased had gone to the forest at a distance of about two miles from the village for the purpose of grazing cattle and that he was axed to death the same day in the forest under a Gurjenia tree. ( 4. ) THE point for determination is whether the death was caused by or in consequence of act of the respondents. As direct evidence, the prosecution relied upon the testimony of three witnesses namely Mana (P. W. 1), Hargyan (P. W. 2)and Premraj (P. W. 3), all of whom claimed to have witnessed the alleged incident. ( 4. ) THE point for determination is whether the death was caused by or in consequence of act of the respondents. As direct evidence, the prosecution relied upon the testimony of three witnesses namely Mana (P. W. 1), Hargyan (P. W. 2)and Premraj (P. W. 3), all of whom claimed to have witnessed the alleged incident. As circumstantial evidence, reliance was placed on alleged discovery of the deceaseds ornaments (pair of silver Kadas, a pair of gold Murkis and a silver chain) from the house of the respondent No. 1 Preetam in consequence of information given by him under section 27 of the Evidence Act. The deceased was alleged to have been wearing those ornaments. Reliance was also placed on confession of the respondent No. 1 Preetam recorded on 25-6-1973 by an Executive Magistrate Hanumantrao (P. W. 8 ). ( 5. ) MANA (P. W. 1) and Premraj (P. W. 3) also claimed to have gone to the forest that morning as usual for the purpose of grazing cattle. Hargyan (P. W. 2)claimed to have gone there that morning along with Ganesh for the purpose of felling wood and stealing the same. Mana (P. W. 1) claimed to have witnessed the alleged incident from a distance of about 80-90 steps, Hargyan (P. W. 2) from a distance of about 50-60 steps and Premraj (P. W. 3) from a distance of about 60-70 steps. According to them, their attention was drawn towards the spot on hearing the deceaseds cry. That is to say, unless the deceased raised a cry and it was heard by them, their attention would not be attracted and there would be no occasion for them to look in the direction in which the alleged incident took place. Now, a perusal of their testimony shows that their versions as to the words of the cry are repugnant to one another. Each of them gave a version inconsistent with the versions of the other two in that respect. It, therefore, becomes doubtful as to whether a cry was at all raised by the deceased and as to whether these witnesses at all witnessed the alleged incident. ( 6. ) THE said infirmity is not the only one. The evidence of the above-mentioned witnesses contains a series of material discrepancies. Mana (P. W. 1) is a first cousin of the deceased, whose house was situated near his house. ( 6. ) THE said infirmity is not the only one. The evidence of the above-mentioned witnesses contains a series of material discrepancies. Mana (P. W. 1) is a first cousin of the deceased, whose house was situated near his house. According to him, immediately after having seen the incident at about 9-10 A. M. he started on his way bach to the village. Then, he stated that he reached the village at the time of sunset. It is improbable that such a long time would be taken to reach the village, the distance being only about two miles. There is no explanation for this infirmity in his testimony. According to Hargyan (P. W. 2), he and Ganesh, on return, reached home in the village at about 1 P. M. having seen the incident at about 9 or 9. 30 A. M. According to Premraj (P. W. 3), he returned to the village at the time of Sunset, having started from the forest after the assailants were gone at about 10-11 A. M. There is no explanation for taking such a long time for covering the distance. Then, according to him, on his way back, he met Mana (P. W. 1), Hargyan (P. W. 2) and Ganesh at a place far away from the place of the incident and about 1 or 1 1/2 miles away from the village. The statements of Mana (P. W. I) and Hargyan (P. W. 2) are inconsistent with this version of Premraj (P. W. 3), then, according to Premraj (P. W. 3), Mana (P. W. 1), hargyan (P. W. 2) and Ganesh did not at all tell him about the alleged incident nor did he tell them about it. Had they really seen what they stated to have seen and had they really met each other as stated by Premraj (P. W. 3), they would not have remained completely silent about the incident. ( 7. ) BESIDES, according to the above-mentioned three witnesses, on returning to the village, they did not inform anybody, not even the deceaseds father Jiwanlal (P. W. 6) and, further, they, for the first time, narrated the incident only on being interrogated by the investigating officer. According to the investigating officer Mangalsingh (P. W. 10), their statements were recorded by him on the night of 16-6-1973 after 10. According to the investigating officer Mangalsingh (P. W. 10), their statements were recorded by him on the night of 16-6-1973 after 10. 40 P. M. It seems to be highly improbable that, on returning to the village from the forest, they would not inform at least the deceaseds father Jiwanlal (P. W. 6), particularly when the deceased was first cousin of Mana (P. W. 1), and living near his house, if the incident had really been witnessed by them. It is significant that, according to the deceaseds father Jiwanlal (P. W. 6), Mana (P. W. I) did not tell him about the incident although he (P. W. 6) Jiwanlal asked him the same evening. ( 8. ) OTHER material discrepancies appearing in the testimony of the said witnesses have been discussed by the trial judge in detail and, since we find ourselves in agreement wiht the trial Courts view that the said witnesses are not reliable, we do not think it to be necessary to enter into discussion of more discrepancies. The discrepancies already discussed by us are quite sufficient to conclude that the said witnesses are not trustworthy and their evidence deserves to be rejected. ( 9. ) AS regards the alleged discovery of the ornaments, it is clear from the testimony of the investigating officer Mangalsingh (P. W. 10), read with that of premraj (P. W. 3), that, on 17-6-1973 a pair of silver Kadas and a silver chain were seized from inside the residential Pator of the respondent No. 1 Preetam from underneath a heap of cowdung cakes and a stoneslab and a pair of gold Murkis was also seized from a Miyal inside his house. The articles were lying hidden at those places in his house. Their testimony also shows that those articles were discovered in consequence of information given by the respondent No. 1 Preetam in police custody that they were lying at those places in his residence. Although it is not proved that the information was confessional, the fact remains that the articles were recovered from those places inside his house in consequence of information given by him while in police custody about their presence at those places. In paragraph No. 32 of its judgment, the trial Court also held that the articles were so discovered. Although it is not proved that the information was confessional, the fact remains that the articles were recovered from those places inside his house in consequence of information given by him while in police custody about their presence at those places. In paragraph No. 32 of its judgment, the trial Court also held that the articles were so discovered. From the testimony of the deceaseds widow Bindi (P. W. 4), father-in-law Kashilal (P. W. 5) and father Jiwanlal (P. W. 6), it is clear {hat the seized ornaments belonged to the deceased who used to wear them on his person. Kashilal (P. W. 5) and Jiwanlal (P. W. 6) had identified them in test-identification also on 22-6-1973, which test-identification was conducted by Naib tahsildar Narendra Pratap Singh (P. W. 7 ). The testimony of Jiwanlal (P. W. 6)further proves that the deceased was wearing those ornaments on his person on the date of the incident also. ( 10. ) COMING now to the confession (Ex. P. 11) of the respondent No. I preetam recorded by the Executive Magistrate Hanumantrao (P. W. 8) on 25-6-1973, from the testimony of the Magistrate, read with the contents of the statement (Ex. P. 11), it is clear that all the requisite formalities were observed and the prescribed procedure followed by the Magistrate. In the statement (Ex. P. 11), the respondent No. 1 Preetam stated that he had axed the deceased Chhita to death under Gurjenia tree in Sendna forest on the day of the incident at 8-9 A. M. because the deceaseds father Jiwanlal (P. W. 6) had ex-communicated him, that he had also caused burns to the dead body so that it may not be identified, that he had also removed the silver chain and the pairs of silver Kadas and gold Murkis from the dead body and that he had also got those articles recovered from the places in his house at which places he had kept them. ( 11. ) THE law relating to conviction on the basis of retracted confession is well settled. In the case of Pyarelal Bhargava v. The State of Rajasthan, A. I. R. 1983 SC. 1094. it was explained by their Lordships in the following words : "a retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and was voluntarily made. In the case of Pyarelal Bhargava v. The State of Rajasthan, A. I. R. 1983 SC. 1094. it was explained by their Lordships in the following words : "a retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and was voluntarily made. But it has been held that a court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is only a rule of prudence. It cannot even be laid down as an inflexible rule of practice or prudence that under no circumstances, such a conviction can be made without corroboration, for a court may, in particular case, be convinced of the absolute truth of a confession and prepared to act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particular". To the same effect is the decision of their Lordships in the case of Shankaria v. State of Rajasthan, A. I. R. 1978 S. C. 1248. wherein the position was explained as follows : "it is well settled that a confession, if voluntarily and truthfully made, is an efficacious proof of guilt. Therefore, when in a capital case the prosecution demands a conviction of the accused, primarily on the basis of his confession recorded under S. 164, Cr. P. C. the Court must apply a double test:- (1) Whether the confession was perfectly voluntarily? (2) If so, whether it is true and trustworthy? satisfaction of the first test is a sine qua non for its admissibility in evidence. If the confession appears to the Court to have been caused by any inducement, threat or promise such as is mentioned in S. 24, evidence Act, it must be excluded and rejected brevi manu. In such a case, the question of proceeding further to apply the second test, does not arise. If the first test is satisfied, the Court must before acting upon the confession, reach the finding that what is stated therein is true and reliable. In such a case, the question of proceeding further to apply the second test, does not arise. If the first test is satisfied, the Court must before acting upon the confession, reach the finding that what is stated therein is true and reliable. Forjudging the reliability of such a confession, or for that matter of any substantive piece of evidence, there is no rigid canon of universal application. Even so, one broad method which may be useful in most cases for evaluating a confession may be indicated. The Court should carefully examine the confession and compare it with the rest of the evidence, in the light of the surrounding circumstances and probabilities of the case. If on such examination and comparison, the confession appears to be a probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances, it may be taken to have satisfied the second test. " The trial Court entertained a doubt as to the voluntary nature of the confession (Ex. P. 11) and, for that reason, rejected it. We find ourselves unable to agree with the trial Courts view, for reasons which follow. ( 12. ) THE respondent No. I Preetam was arrested on 17-6-1973. On 18-6- 1973, he was remanded to police custody for the period till 22-6-1973 by Judicial magistrate, First Class, Sheopur. On 22-6-1973, the Judicial Magistrate remanded him to judicial custody till 5-7-1973. On 22-6-1973 an application was also made by the police before the Executive Magistrate Hanumantrao (P. W. 8)posted at Sheopur, for recording confession of the respondent No. 1 Preetam. The Executive Magistrate directed him to be produced before him on 25-6-1973 for that purpose. Having been remanded to judicial custody on the same date (22-6-1973) the respondent No. 1 was sent to jail at Sabalgarh. He was then produced before the Executive Magistrate Hanumantrao (P. W. 8) at 8 A. M. on 25-6-1973, because the Court-hours in that summer season were from 6-30 A. M. to 12-30 p. M. as is clear from the testimony of Hanumantrao (P. W. 8 ). It is not disputed that Sheopur and Sabalgarh are Tahsils of Morena district and that the undertrial prisoners from Sheopur were kept in Sub-jail at Sabalgarh. It is not disputed that Sheopur and Sabalgarh are Tahsils of Morena district and that the undertrial prisoners from Sheopur were kept in Sub-jail at Sabalgarh. On being produced at 8 A. M. on 25-6-1973, the Magistrate questioned the respondent No. land made him sit in the verandah of his Court away from the police constable by whom he had been produced so as to give him time for reflection. The magistrate called him again at 10 A. M. through his Court-peon and, then, after satisfying himself by questioning him that he was free from inducement, threat and promise and was going to give his statement voluntarily, the Magistrate recorded his statement (Ex. P.-11) after getting the doors of his Court-room shut. The Magistrate stated that no police officer or police-man was present in his court-room at that time. The trial Courts view that the respondent might have been under police-influence at that time is the outcome of his own imagination and flight of thought. The respondent No. 1 Preetam was produced before the executive Magistrate from jail along with jail warrant by police-constable ramswaroop of Sabalgarh Police-station, as mentioned in Ex. P. 11 and in the order-sheet recorded by the Magistrate. That police constable was not at all concerned with police station Karahal, had not taken any part in the investigation of the present case and was also not interested in any manner in its prosecution or success. Then, the Magistrate kept the respondent No. 1 away from him for two hours before recording his statement (Ex. P. 11) at 10 A. M. In the circumstances, we are satisfied that the respondent No. 1 could not be under any sort of police influence at the time of recording of his statement (Ex. P. 11 ). The trial Court was of the view that the respondent No. 1 must have been brought to Sheopur from Sabalgarh on the night preceding 25-6-1973 and kept at police station Sheopur during that night for, otherwise, he could not be produced before the Magistrate at 8 A. M. on 25-6-1973. That is also imaginary. Even if that view is held to be correct, it does not necessarily go to mean that police influence was brought to bear upon him that night. The police-constable Ramswaroop. That is also imaginary. Even if that view is held to be correct, it does not necessarily go to mean that police influence was brought to bear upon him that night. The police-constable Ramswaroop. who was escorting him from Sabalgarh, was not in the least interested, as already mentioned and the staff of police-station Sheopur was also not interested in the least. The respondent No. 1 in his examination by the Sessions Court on 19-12-1973 stated- No question on such a plea was put to the Sub-Inspector Mangalsingh (P. W 10), the investigating officer, by the defence counsel in cross-examination and the confession was retracted by the respondent No. 1 only on 19-12-1973 by making the above-quoted statements in his examination in Sessions Court after the close of prosecution-evidence. Never before did he advance such a plea or make any such grievance although he did have occasion to do so before the committing magistrate as also before the Sessions Court. The Executive Magistrate hanumantrao (P. W. 8) was also not questioned on such a plea in his cross-examination. Obvious it is that the above-quoted versions of the respondent No. 1 are utterly false. It is significant that he did not say that he was kept at Sheopur police Station on the night preceding the date of recording of the statement ex. P. 11 or that any influence was at all brought to bear upon him by the police-constable Ramswaroop. ( 13. ) IN the case of Shankaria v. State of Rajasthan (Supra), the accused was arrested by the police on 3-6-1974 at Bhatinda and taken to Ganganagar where he was lodged in lock up of the police-station on 4-6-1974. On 12-6-1974, he was taken by the police to Raisingh Nagar and, under orders of a Judicial magistrate, lodged in judicial custody there at about or after 4 P. M. On 13-6-1974, an application was submitted to the Magistrate for recording his confessional statement. On that application, the Magistrate directed the accused to be produced before him at 7 A. M. on 14-6-1974 for that purpose. He war accordingly produced before the Magistrate on 14-6-1974. After putting some preliminary questions, the Magistrate gave time to him for reflection. About 15 minutes thereafter, the Magistrate recorded his confessional statement from 8. 15 a. M. onwards. On that application, the Magistrate directed the accused to be produced before him at 7 A. M. on 14-6-1974 for that purpose. He war accordingly produced before the Magistrate on 14-6-1974. After putting some preliminary questions, the Magistrate gave time to him for reflection. About 15 minutes thereafter, the Magistrate recorded his confessional statement from 8. 15 a. M. onwards. Their Lordships held that the accused was free from fear or influence of the police at the time of recording of his confessional statement and that the statement was voluntarily made by him. The following observations made by their Lordships are noteworthy : "it will be seen that how much time for reflection should be llowed to an accused person before recording his confession, is a question which depends on the circumstances of each case. The object of giving such time for reflection to the accused, is to ensure that he is completely free from Police influence. If immediately before the recording of the confession, the accused was in judicial custody beyond the reach of the investigating police for some days, then such custody from its very nature, may itself be a factor dispelling fear or influence of the police from the mind of the accused. In such a case, it may not be necessary to send back the accused person for any prolonged period to jail or judicial lock-up. "he considered, Shankaria had, as a matter of fact, about 38 or 40 hours in judicial custody immediately preceding the confession and this was rightly considered sufficient to secure freedom from fear or influence of the Police to him. " It was also held by their Lordships that the fact that the confession was for the first time retracted after the lapse of a considerable period only when the accused was examined by the trial Court after the close of prosecution evidence and not at the earliest opportunity, though defended by an experienced lawyer, constituted a circumstance re-inforcing the conclusion that the confession was made voluntarily. In the present case also, the confession was for the first time retracted by the respondent No. 1 only in his examination by the Sessions Court after the close of the prosecution evidence and not at any time earlier although he did have, earlier opportunities also to do so and was assisted by an experienced lawyer. In the present case also, the confession was for the first time retracted by the respondent No. 1 only in his examination by the Sessions Court after the close of the prosecution evidence and not at any time earlier although he did have, earlier opportunities also to do so and was assisted by an experienced lawyer. Thus, we conclude that the confessional statement was made by him voluntarily. ( 14. ) AS regards corroboration of the confessional statement (Ex. P. 11) it is amply corroborated by the facts (i) that the deceaseds father Jiwanlal (P. W. 6)had ex-communicated the respondent No. I about two months before the date of the incident, as stated by him in paragraph No. 9 of his deposition, (ii) that the dead body of Chhita was found under a Gurjenia tree in Sendna forest, (iii) that earth stained with human blood was also seized from there, (iv) that an axe, which, on being examined chemically and serologically, was found to be stained with human blood, was seized by the investigating officer Mangalsingh (P. W. 10)on 17-6-1973 from near the dead body, (v) that, according to the medical evidence, the injuries which resulted in Chhitas death could be caused by means of an axe, and (vi) that the ornaments which the deceased was wearing on his person were recovered from the respondents house in consequence of information given by him in police custody under section 27 of the Evidence Act. As regards causing of burns to the dead body, in the inquest report (Ex. P. 8) it was stated that there were signs of burning on the dead body. The inquest was held at 10 A. M. on 17-6-1973. According to the deceaseds father Jiwanlals (P. W. 6) version also, in paragraph No. 5 of his deposition, there were burns on the dead body at that time. He was present at the inquest. 14a. According to Dr. N. P. Sarkar (P. W. 11) by whom autopsy of the dead body was performed at 4 P. M. on 17-6-1973 a few blisters were present here and there over the dead body, superficial skin had peeled off and the body was in an advanced stage of putrefaction. He was not questioned to tell whether there was any sign of burning over the dead body. In the post mortem report also, nothing was stated by him on that point. He was not questioned to tell whether there was any sign of burning over the dead body. In the post mortem report also, nothing was stated by him on that point. It appears that, the dead body being in an advanced stage of putrefaction at the time of autopsy, it was not possible for the doctor to throw light on that point. Even if, for want of corroboration by medical evidence, it is not believed that there were burns on the dead body, corroboration of a confessional statement on each and every matter is not necessary to show that the statement was truthful. Corroboration on material particulars is quite sufficient to satisfy the Court that it was true. The confessional statement (Ex. P. 11) is amply corroborated with regard to all the other facts, including the fact that the deceased was killed by the respondent No. l by means of an axe. We are, therefore, satisfied that it was true. In any case, as the version, in the confessional statement (Ex. P. 11) that the deceased was killed by the respondent no. 1 by means of an axe gets ample corroboration as already discussed, that version must be accepted as true. ( 15. ) THUS, we hold that the respondent No. 1 is guilty of the offence of chhitas murder punishable under section 302 of the Indian Penal Code; and, in view of his admission in the confesional statement (Ex. P. 11) that the seized ornaments were removed by him from the Chhitas dead body, he is further guilty of the offence punishable under section 404 of the Code. As regards the respondent No. 2 Mana (P. W. 1) Hargyan (P. W. 2) and Premraj (P. W. 3) having been disbelieved and there being no other evidence against him, no case for his (respondent No. 2 Ishwarlal) conviction is made out. ( 16. ) IN the result, the apeal is partly allowed. The acquittal of the respondent No. 1 Preetam is set aside and he is convicted (i) under section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and (ii)under section 404 of the same Code and sentenced to undergo rigorous imprisonment for two years. The sentences shall run concurrently. The appeal as regards the respondent No. 2 Ishwarlal fails and is dismissed. ( 17. The sentences shall run concurrently. The appeal as regards the respondent No. 2 Ishwarlal fails and is dismissed. ( 17. ) AS regards disposal of the seized articles, the trial Court ordered the ornaments to be delivered to the deceaseds father Jiwanlal (P. W. 6) and the remaining articles to be destroyed. That order has not been challenged before us and the same is maintained. Appeal partly allowed.