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2001 DIGILAW 474 (KAR)

MOTHILAL v. STATE

2001-06-22

H.N.NARAYAN, N.S.VEERABHADRAIAH

body2001
H. R. NARAYAN, J. ( 1 ) THE appellants are the 1st and the 3rd accused in S. C. No. 148/96 on the file of the learned Sessions Judge, Chitradurga. They have challenged the order of conviction and sentence recorded against them by the learned Sessions Judge for the offences punishable under Sections 302 and 201, IPC r/w Sec. 34, IPC. The learned Sessions Judge has convicted and sentenced them to suffer R. I. for life for the offence under Section 302, IPC and further sentenced them to undergo R. I. for 2 years for the offence under Section 201, IPC. The learned Sessions Judge has also granted concession under Section 428 of the Cr. P. C. It is stated that accused No. 2 has not challenged the Judgment of conviction and sentence recorded against her by the learned Sessions Judge by the same Judgment. We are therefore, required to consider the case of the appellants alone in this appeal. ( 2 ) IT is the case of the prosecution that accused No. 2 G. C. Renukabai @ Radha, wife of the deceased H. Murthy who was working in CARD' Gramabhivrudhi Corporation, Dodda Magadi Village had developed illicit relationship with accused No. 1 which fact was known to the deceased H. Murthy. A-3, the second appellant is the brother-in-law of accused No. 1. Accused No. 1 was found by some of the villagers in compromising position with accused No. 2 and therefore, a panchayat was held in the village where A-1 was fined to the extent of Rs. 5,000/- with a direction to pay the said amount to H. Murthy, the husband of A-2. A month thereafter, A-1 to A-3 with the common intention of murdering H. Murthy, husband of A-2, on the night of 12-8-1996 at about 1. 00 a. m. while he was sleeping in his house situated at Dodda Magadi Village, committed his murder by strangulating and squeezing the testicles. It is specifically alleged that A-3 sat on the hands and legs of H. Murthy and caught hold of him tightly and A-1 pressed the testicles of H. Murthy and A-2 gagged his nose and mouth. They buried the dead body by digging a pit in the kitchen after it was put in a gunny bag. It is specifically alleged that A-3 sat on the hands and legs of H. Murthy and caught hold of him tightly and A-1 pressed the testicles of H. Murthy and A-2 gagged his nose and mouth. They buried the dead body by digging a pit in the kitchen after it was put in a gunny bag. H. Murthy, who was working in the Gramabhivrudhi Corporation was not found in the village or in the office for over 15 days from 12-8-1996. He last attended the office on 12-8-1996. P. W. 1 and others drew suspicious. Therefore, P. W. 1, Jaydevappa in the company of P. W. 2, Lakshmana Naika and others visited the house of A-2, Renukabai and questioned her about the whereabouts of the deceased H. Murthy. She gave evasive and unconvincing answer. She told them that he is very much present. She again told them that he has written a letter to her and when they insisted upon seeing that letter she told them that the letter was taken by the deceased himself. Therefore, they grew more suspicious and forced her to tell the truth. It is the further case of the prosecution that thereafter A-2 confessed before him that about 13 or 14 days back i. e. , on 12-8-1996 all the accused persons murdered H. Murthy and buried the dead body in the kitchen of her house. All the villagers discussed the matter and directed P. W. 1 to inform the police. Accordingly, P. W. 1 Jayadevappa filed a written complaint before P. W. 22, Somashekarappa, the S. H. O. of Mayakonda Police Station as per Ext. P 1. On the basis of the allegations made in the complaint, he registered a criminal case against A-1 to A-3 in Crime No. 75/96 under Sections 302, 201 r/w 34, IPC and submitted the FIR through P. W. 18 to the jurisdictional Magistrate. P. W. 23, B. Mallikarjunappa, the C. P. I. of Davanagere Rural Circle on receipt of the express report of the case immediately visited Mayakonda Police Station and took up further investigation. He immediately deputed his staff including P. W. 21, Jayaram Singh to trace and apprehend the accused persons. P. W. 23, B. Mallikarjunappa, the C. P. I. of Davanagere Rural Circle on receipt of the express report of the case immediately visited Mayakonda Police Station and took up further investigation. He immediately deputed his staff including P. W. 21, Jayaram Singh to trace and apprehend the accused persons. On the same day, all the accused were traced at different places, apprehended and were produced before the C. P. I. P. W. 23, who recorded their voluntary statements leading to the recovery of the spade M. O. 6 at the instance of A-32. Since the dead body was already known to the complainant and the villagers, the Circle Inspector of Police in the presence of the witnesses including P. Ws. 6 and 7 exhumed the dead body and held the inquest over the dead body which was in a decomposed condition. P. W. 8, Dr. D. Chandra Naik, Medical Officer of Anagodu P. H. C. was summoned to the place for the purpose of conducting the post mortem examination on the dead body of the deceased. He conducted the post mortem and issued a report as per Ext. P 4. He noticed that the dead body was in a highly decomposed condition. He therefore, collected the viscera and sent it for chemical examination. He was not in a position to furnish any opinion as to the cause of death. In view of the state of the dead body, he was not in a position to furnish any opinion whether there were any external injuries or not. No poison was detected in the viscera. One Banian and one underwear which were found on the dead body (M. Os. 1 to 3) were thereafter seized under a mahazar in the presence of P. W. 24. He also seized M. Os. 4 and 5, Bed Sheet and one Jamkhana (Carpet) at the instance of A-2 under Ext. P 8. After completing the formalities of investigation, the Circle Inspector filed a Charge Sheet against the accused. ( 3 ) THE accused entered appearance through their advocates. The accused were charged and tried before the learned Sessions Judge for the offences punishable under Sections 302, 201 r/w 34, IPC. Each one of them pleaded not guilty and claimed to be tried. After completing the formalities of investigation, the Circle Inspector filed a Charge Sheet against the accused. ( 3 ) THE accused entered appearance through their advocates. The accused were charged and tried before the learned Sessions Judge for the offences punishable under Sections 302, 201 r/w 34, IPC. Each one of them pleaded not guilty and claimed to be tried. ( 4 ) IN proof of the charges against the accused persons, the prosecution examined 24 witnesses and got marked certain exhibits which are detailed in the annexure to the judgment. M. Os. 1 to 9 were also produced and marked. ( 5 ) THE nature of the evidence let in by the prosecution is one of circumstantial evidence. A-1 and A-3 denied all those incriminating circumstances occurring against them and denied them as false. But A-2 has admitted that she along with A-1 and A-3 committed the murder of her husband. She has implicated A-1 and A-3 in the commission of the murder by stating that A-1 squeezed the testicles of her husband and A-3 throttled her husband's neck. She has further stated in her statement recorded under Sec. 313, Cr. P. C. as follows: Qn. No. 77: Whether you have got anything else to say ? By this statement, A-2 appears to have exculpated herself of the alleged offence. The learned Sessions Judge who heard the arguments was persuaded to accept the prosecution case by discarding the so called trivial contradictions in the case of the prosecution and convict the accused. The learned Sessions Judge relied heavily upon the motive established by the prosecution, statements of the accused persons leading to the recovery of the spade M. O6, the bed sheet and one Jamkhana (carpet) M. Os 4 and 5 and also the scene of offence shown by A-1. He also found corroboration from the earlier statement of guilt made by accused No. 2 and these circumstances were sufficient for the learned Single Judge to convict all the accused of the offences of murder punishable under Section 302, IPC and also for the offence under Section 201, IPC r/w 34, IPC. ( 6 ) IN this appeal, we have heard the arguments of Smt. G. S. Anasuya, learned counsel for the appellants and Sri B. C. Muddappa, learned Addl. State Public Prosecutor for the State. We have also perused the evidence. ( 6 ) IN this appeal, we have heard the arguments of Smt. G. S. Anasuya, learned counsel for the appellants and Sri B. C. Muddappa, learned Addl. State Public Prosecutor for the State. We have also perused the evidence. ( 7 ) LEARNED Counsel for the appellants has contended that the learned Sessions Judge has erred in relying upon the voluntary statement of the accused recorded by the Investigating Officer leading to the recovery of certain articles. There is no discovery of any incriminating material at the instance of the accused. Therefore, the so called recovery is not an incriminating circumstance against the accused-appellants. The motive alleged is not sufficient to hold the accused-appellants guilty of the offence of murder. The extra judicial confession said to have been made by A-2 in respect of A-1 and A-3 and implicating the appellants in the commission of the offence of murder can be made use of under Section 30 of the Evidence Act. only where there is acceptable evidence of guilt proved by the prosecution and not otherwise. The statement made by A-2 in her 313 Cr. P. C. statement shows that it was a retracted confession and she attempted to exculpate herself and therefore, the provisions of Section 30 of the Evidence Act cannot be relied upon. Even for arguments sake that the accused-appellants are liable to be convicted under Section 30 of the Evidence Act, the alleged confession in implicating the co-accused itself is not sufficient to convict the accused for the offence and can be only made use of as a corroborative piece of evidence. It is therefore submitted by the learned counsel that the Judgment of conviction and sentence recorded by the learned Sessions Judge does not stand to legal scrutiny and is liable to be set aside. ( 8 ) LEARNED Additional State Public Prosecutor has drawn our attention to the nature of evidence like motive and the background under which the offence is committed and he has not disputed that Section 30 of the Evidence Act can only be used not as a substantial piece of evidence but only as a corroborative piece of evidence to hold the accused guilty of the offences alleged. The learned Additional State Public Prosecutor takes pains to contend before the Court that the circumstances placed by the prosecution and relied upon by the learned Sessions Judge are sufficient to hold the accused guilty of the offence. Therefore, the provisions of Section 30 of the Evidence Act are available in the case of this nature to convict the accused-appellants for the offence of murder. ( 9 ) THE question for consideration in this appeal is whether the Judgment of the learned Sessions Judge in convicting the accused-appellants for offence punishable under Sections 302 and 201 r/w Sec. 34, IPC is justifiable and the specific question that falls for consideration is the applicability of Section 30 of the Evidence Act in this case. ( 10 ) BEFORE we take up this important question for consideration, we propose to dispose of the other circumstances relied upon by the prosecution in proof of the guilt of the accused. There is abundant evidence placed on record by the prosecution through P. Ws. 1, 2, 3, 4, 5, 6 and 7 that A-1 developed illicit intimacy with A-2, wife of deceased H. Murthy. Some of them have gone to the extent of calling her (A-2) as the mistress of A-1 and some of them including P. W. 3 found A-1 and A-2 in a compromising position in the house of the deceased during his absence. It is in this background when the deceased H. Murthy complained to the elders of the village about their illicit relationship, they convened a panchayat and fined A-1 to pay Rs. 5,000/- to the deceased H. Murthy which was paid to him by A-1. There is no allegation of any involvement of A-3 till the date of the incident except A-3 is a relative of A-1 who according to the prosecution took his assistance to commit murder. Therefore, we are satisfied from the evidence produced in proof of this relationship of A-1 and A-2 and affirm the finding of the learned Sessions Judge that A-1 had illicit relationship with A-2. There is no evidence of conspiracy to commit the murder. The Investigating Officer has not even made an attempt to collect any material to show that the accused person had ever conspired to kill him. There is no evidence of conspiracy to commit the murder. The Investigating Officer has not even made an attempt to collect any material to show that the accused person had ever conspired to kill him. However, according to the prosecution all the accused persons shared the common intention to commit the murder of H. Murthy and this is on the basis of the extra judicial confession made by A-2 in the presence of P. Ws. 1 and 2 and others incriminating these appellants in the commission of the offence of murder of her husband. ( 11 ) APART from this illicit relationship between A-1 and A-2, the two other circumstances relied upon by the prosecution are that the accused were arrested immediately after registering the case against them. The arrest of A-2 in nearby village raises doubt in our mind. It is not probable that P. Ws. 1, 2 and others who came to know of the murder of Murthy by A-1 to A-3 would have spared her (A-2) to escape. These persons could have produced her before the Investigating Officer at the time of filing the complaint. The Investigating Officer is not even honest in this respect. A-1 and A-3 were also arrested on the same day but at different places by P. W. 21 and others who were deputed for that purpose by the Circle Inspector of Police. All the three accused were produced before him on the same day. The Investigating Officer questioned all the three of them and recorded their statements separately. The admissible portions of the statements are marked at Exts. P 12, P 13 and P 14. Nothing is recovered at the instance of A-1 and A-2. According to the prosecution, A-3 took them to the house of A-2 where he showed a spade, the instrument with which they dug the pit to bury the dead body of H. Murthy. According to the prosecution this is in order to cause the evidence of the commission of the offence to disappear with the intention of screening themselves from legal punishment. ( 12 ) THE place of incident was already known to the complainant and others. This fact was brought to the notice of the Investigating Officer in the complaint Ext. P 1. ( 12 ) THE place of incident was already known to the complainant and others. This fact was brought to the notice of the Investigating Officer in the complaint Ext. P 1. Therefore, the place where the dead body was recovered is not at the instance of A-1 nor at the instance of A-2 or A-3. Therefore, the recovery evidence as per the provisions of Section 27 of the Evidence Act is not available to the prosecution. It is the case of the Investigating Officer himself that the dead body was exhumed by using a spade which was recovered from the house of the deceased. It is the case of the prosecution that the Investigating Officer recovered the spade M. O 6 at the instance of A-3 from the house of A-2. But there is no evidence whether M. O 6 is the same spade which was used for exhuming the dead body. Though there is no medical evidence explaining the cause of death, we presume that it is not a natural death. The circumstances under which the dead body itself was buried in the kitchen of the house of A-2 shows that the dead body was buried after causing his death. No other conclusion can be drawn under the circumstances. But these facts in our opinion are not sufficient to hold the accused 1 and 3 guilty of the offence of murder. We find absolutely no material which indicates the complicity of A-3 in the commission of the offence alleged. ( 13 ) CONFESSIONS are dealt in the Evidence Act from Sections 24 to 29 and consideration of proved confession affecting person making it and others jointly under trial for same offence is dealt in Section 30 of the Evidence Act. Sections 24 and 25 of the Evidence Act deal with admissibility of confessions by accused persons in criminal cases. The ground of reception is the same as that of 'admissions' viz. , that what a man voluntarily says against his interest is likely to be true. In order to render a confession admissible, it must be perfectly voluntary. Before a confessional statement can be acted upon, it must be shown to be voluntary and free from police influence. A voluntary confession although false is admissible. , that what a man voluntarily says against his interest is likely to be true. In order to render a confession admissible, it must be perfectly voluntary. Before a confessional statement can be acted upon, it must be shown to be voluntary and free from police influence. A voluntary confession although false is admissible. The mere fact that a confession is made to a person in authority does not render it involuntary or inadmissible, it must be further shown that it was caused by any inducement, threat or promise. This exclusionary form of the rule by which every confession put in is assumed to be relevant until it is challenged and found to have been obtained by any improper means is liable to create some confusion as there is nothing in the section to indicate who is to prove the voluntary character of the confession when the question arises. Section 25 of the Evidence Act says that no confession made to a Police Officer shall be proved as against a person accused of any offence, as it is not clearly admissible in evidence. A confession made before the police in custody is also excluded under Section 26 of the Evidence Act. However, the provisions of Section 27 of the Evidence Act is an exception as the said provision enables the prosecution to rely upon so much of information received from the accused that may be proved against him even though such confession is made before a Police Officer. Therefore, that portion of the 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 is admissible and it may be proved against him. The prosecution has no doubt relied upon the extra judicial confession made by A-2 in the presence of P. W. 1 and others and the trial Court has relied upon the circumstantial evidence established against her in proof of the charge against her. We do not propose to take up her cause in this appeal in the absence of any appeal by A-2. A-2 by her said confession and also in her statement made before the Court recorded under Section 313, Cr. P. C. incriminated A-1 and A-3, but exculpated herself. We do not propose to take up her cause in this appeal in the absence of any appeal by A-2. A-2 by her said confession and also in her statement made before the Court recorded under Section 313, Cr. P. C. incriminated A-1 and A-3, but exculpated herself. It is in this background, the Court is required to examine the position of Section 30 of the Evidence Act. ( 14 ) OUR attention is drawn by the learned State Public Prosecutor to the provisions of Section 30 of the Evidence Act and contended that the confession of a co-accused can be relied upon to convict the accused for the same offence. Section 30 of the Evidence Act reads as follows:"s. 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. Explanation, - "offence" as used in this section, includes the abetment of, or attempt to commit, the offence. " ( 15 ) STRONG reliance is placed by the learned counsel for the appellants on a Judgment rendered by the Constitution Bench of the Apex Court in the case of Haricharan Kurmi v. State of Bihar (in Cr. A. Nos. 208/63 and 209/63) reported in AIR 1964 SC 1184 : (1964 (2) Cri LJ 344) wherein this very question came up for consideration before the Apex Court. The Apex Court distinguished the observations made in the previous case in Ram Prakash v. State of Punjab, AIR 1959 SC 1 : 1959 SCR 1219 : (1959 Cri LJ 90 ). After exhaustive elaborate discussion at paras 11 to 15, it held as follows:"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 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. "the Apex Court has also observed in para 12 of its judgment as follows:"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 general sense. Thus though confession may be regarded as evidence in that generic sense because of the provisions of S. 30, the fact remains that it is not evidence as defined by S. 3 of the Act. The result, therefore is that in dealing with a case against an accused person, the Court cannot start with the confession of co-accused person, it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That briefly stated is the effect of the provisions contained in S. 30. " ( 16 ) WE have already examined the evidence placed by the prosecution in support of the charges and we found it insufficient in proof of those charges against the appellants. Therefore, in our opinion, the prosecution cannot rely upon the provisions of Section 30 of the Evidence Act alone to prove the guilt of the accused-appellants. In this case, we have noticed that A-2 in her 313 Cr. P. C. statement retracted her confession though no such defence is pleaded at the time of cross-examining the witnesses. There is an attempt to exculpate herself for the offence of murder. Therefore, the confession said to have been made by her before P. Ws. In this case, we have noticed that A-2 in her 313 Cr. P. C. statement retracted her confession though no such defence is pleaded at the time of cross-examining the witnesses. There is an attempt to exculpate herself for the offence of murder. Therefore, the confession said to have been made by her before P. Ws. 1, 2 and others is a confession which attracts the provisions of Section 30 of the Evidence Act. The two circumstances relied upon by the prosecution, namely, that A-1 and A-2 had illicit relationship to the knowledge of the entire village and that a spade M. O. 6 was recovered at the instance of A-3 and that the place where the dead body was discovered at the instance of A-1 and A-2 at best raises some doubt, the prosecution rather relied heavily upon this exculpatory statement of A-2 which is accepted by the trial Judge without examining the legal consequence of Section 30 of the Evidence Act. Therefore, we find no substantial evidence to hold the accused-appellants guilty of the offence of murder punishable under Sec. 302, IPC and also for the offence under Sec. 201, IPC. Therefore, we find substantial force in the contention of the learned Counsel for the appellants that the Judgment of the learned trial Judge suffers from serious infirmity and does not stand to legal scrutiny and is liable to be set aside. ( 17 ) IN the result, we allow the appeal. We set aside the Judgment of conviction and sentence passed by the learned Session Judge against the appellants - A-1 and A-3 The appellants are ordered to be set at liberty forthwith. Appeal allowed.