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2006 DIGILAW 897 (MP)

Anil Sharma v. State of Madhya Pradesh

2006-07-24

S.L.KOCHAR, W.A.SHAH

body2006
Judgment ( 1. ) THIS appeal has been directed by the appellant against the judgment and finding dated 18th March, 1994 passed by the learned Fifth Additional Sessions Judge, Indore, in Sessions Trial No. 25/1992 whereby convicted the appellant under Sections 302, 377 and 367 of the IPC and sentenced to RI for life, ten years; and seven years respectively. All these sentences were directed to run concurrently. ( 2. ) BRIEFLY stated the prosecution case as unfolded before the Trial Court, is that on 14-5-1991 in the night, complainant Thawariya (P. W. 1), his brother-in-law Mangya @ Mangilal (P. W. 3) and Sardar (P. W. 2) were residing with their families in a garden known as Das Ka Bagicha, Indore. Thawariya (P. W. 1) was sleeping inside of his hutment in the night. His brother-in-law Mangya and mother-in-law were sleeping in a separate hut and deceased Raju aged 3 years was also sleeping with her maternal-grand-mother. The huts of the complainant/witnesses were without any door. In the intervening night of 13th and 14th September, 1991 at about 1 to 2 A. M. , Thawariya was informed by mother-in-law and Mangya about missing of deceased Raju from the hut. Thereafter, Thawariya and his all relations went in search of Raju in the adjacent area. While in search, they met Mahesh Yadav (P. W. 5) to whom they disclosed about missing of Raju at which Mahesh Yadav also accompanied them in search of Raju. In the morning they all again went towards Das Ka Bagicha and came to know that one miscreant was caught by the people. When they reached nearby the temple, they found that Munna Shukla and Binda Pahalwan (P. W. 4) had caught appellant Anil Sharma, resident of Hukum Chand Colony, Indore. The appellant was caught by them because he often visiting Das Ka Bagicha. Binda Pahalwan told the parents of the deceased boy that in the night between 2 to 3 A. M. , appellant Anil Sharma was coming from the side of their hutment because of which he caught him and detained him. Thawariya, his brother-in-law Mangya, Munna Shukla, Mahesh Yadav and Binda Pahalwan started interrogation of appellant Anil Sharma as to why he was coming from the side of huts and whereabouts of Raju, the son of Mangya. Thawariya, his brother-in-law Mangya, Munna Shukla, Mahesh Yadav and Binda Pahalwan started interrogation of appellant Anil Sharma as to why he was coming from the side of huts and whereabouts of Raju, the son of Mangya. At the first instance Anil Sharma avoided the question and did not disclose anything but when force was used by Mahesh Yadav and other persons, he disclosed before them that in the night his mental condition was not in order because of which he committed bad act with Raju after taking him from inside the hut and when Raju raised cry he killed him by throttling his neck and dead body was lying in the bushes. On the basis of this disclosure statement of appellant, parents of the deceased and witnesses alongwith the appellant went near the bushes and found the dead body of child Raju. The same was having number of external injuries and his shirt and sweater were lying near his dead body. The witnesses Mangya and Thawariya went to Police Station and lodged the report vide Ex. P-5 on 14-9-1991 in the morning at 7. 05 A. M. On the basis of this report, Crime No. 236/1991 was registered under Section 302 of the IPC and Police stepped into investigation. After preparing inquest report, dead body of deceased was sent for post-mortem examination and post-mortem was performed by Dr. R. K. Singh (P. W. 9 ). His reports are, Exs. P-11 and P-12. From near the dead body, bushirt, sweater, blood stained grass and other articles were seized. All the seized articles were sent for examination to Forensic Science Laboratory, but report was not received and filed by the prosecution before the Trial Court. ( 3. ) AFTER due investigation, charge-sheet was filed against the appellant. The appellant denied the charges. His defence was that he was working under one Badriprasad up to 12 oclock in the night of the incident and he was falsely implicated. The appellant was put on trial. The prosecution examined as many as 9 witnesses and exhibited 12 documents to prove its case against the appellant, whereas appellant has examined Badriprasad (D. W. 1 ). The learned Trial Court after hearing both the parties, relying on the prosecution evidence, convicted the appellant as mentioned hereinabove. ( 4. The appellant was put on trial. The prosecution examined as many as 9 witnesses and exhibited 12 documents to prove its case against the appellant, whereas appellant has examined Badriprasad (D. W. 1 ). The learned Trial Court after hearing both the parties, relying on the prosecution evidence, convicted the appellant as mentioned hereinabove. ( 4. ) NONE appeared for the appellant though the case was called repeatedly and even during the course of hearing on behalf of the appellant, therefore, in view of Supreme Court judgments passed in cases of Bani Singh and Ors. v. State of U. P. AIR1996 SC 2439 , 1996 (2 )BLJR1481 , 1996 Crilj3491 , 1996 (3 )Crimes54 (SC ), JT1996 (6 )SC 287 , 1996 (2 )KLT424 (SC ), 1996 (II ) OLR (SC )216 , 1996 (5 )SCALE126 , (1996 )4 SCC720 , [1996 ]supp3 SCR247 and Kishan Singh v. State of U. P. 1993 (3 )SCALE312 , (1996 )9 SCC372 , [1992 ]supp2 SCR305 , we have heard the appeal finally in absence of the counsel for the appellant with the help of learned Deputy Advocate General, Shri Girish Desai appearing for the State. ( 5. ) WE have gone through the entire oral and documentary evidence available in the record and are of the opinion that deceased Raju s/o Mangya Bhil aged 3 years met homicidal death. Post-mortem reports (Exs. P-11 and P-12) proved by Dr. R. K. Singh (P. W. 9), who performed autopsy is clearly establishing that the death of deceased was due to asphyxia as a result of throttling with smothering associated with injury to head and spine. Autopsy Surgeon, Dr. R. K. Singh (P. W. 9) found on external examination in total 53 injuries all over the body of the deceased. The injuries were contusion, abrasion and lacerated wounds. All the injuries were ante-mortem in nature. Now next question for us to consider whether conviction of the appellant is sustainable on the basis of the evidence of extra-judicial confession and recovery of the dead body at the instance of the appellant in front of the prosecution witnesses. The injuries were contusion, abrasion and lacerated wounds. All the injuries were ante-mortem in nature. Now next question for us to consider whether conviction of the appellant is sustainable on the basis of the evidence of extra-judicial confession and recovery of the dead body at the instance of the appellant in front of the prosecution witnesses. These two evidences have been mainly relied upon by the Trial Court for convicting the appellant Thawariya (P. W. 1) in Paragraph 5; Sardar (P. W. 2) in Paragraph 10; Mangilal (P. W. 3) in Paragraph 8; Binda (P. W. 4) in Paragraph 15; and Mahesh Yadav (P. W. 5) in Paragraph 3 have stated unequivocally that when they interrogated appellant about Raju, at the first instance he did not disclose anything, thereafter Mahesh Pahalwan (P. W. 5) dealt some Lathis blow, only thereafter appellant admitted about committing murder of deceased Raju and pointed out the dead body lying in the bushes. After this disclosure, witnesses went near the bushes and found the dead body. Thereafter the matter was reported to the Police. In view of the positive admissions of all the witnesses that appellant did not disclose at the first instance when questioned about deceased and disclosed only after he was assaulted by Lathi, we are of the opinion that this disclosure of the appellant could not be considered as voluntarily one and, therefore, same could not be considered as voluntarily extra-judicial confession and pointing out the dead body of the deceased. The condition precedent for extra-judicial confession also is that the same must be of voluntary nature and it should not be obtained under coercion, threat, inducement or promise, in the instant case, it is the prosecution case itself that appellant made extra-judicial confession and pointed out the place of incident and the dead body after his beating by Mahesh Yadav (P. W. 3 ). Therefore, his disclosure statement could not be construed as voluntarily disclosure and thus the same is not admissible in evidence. For this legal proposition, we can safely rely on a Supreme Court judgment rendered in case of State of Andhra Pradesh v. Kanda Gopaludu AIR2005 SC 3616 , JT2006 (2 )SC 412 , (2005 )13 SCC116. The relevant portion of Paragraph 5 reads as under: P. Ws. 1,2 and 3 were subjected to lengthy cross-examination. For this legal proposition, we can safely rely on a Supreme Court judgment rendered in case of State of Andhra Pradesh v. Kanda Gopaludu AIR2005 SC 3616 , JT2006 (2 )SC 412 , (2005 )13 SCC116. The relevant portion of Paragraph 5 reads as under: P. Ws. 1,2 and 3 were subjected to lengthy cross-examination. Not even a suggestion was put to the witnesses that the confession was tainted and non-voluntary or that it was obtained by coercion, inducement or promise of favour. In case of Guru Singh v. State of Rajasthan, this Court held in Para 6 at SCC pp. 212-13 as under: It is settled position of law that extra-judicial confession, if true and voluntary, it can be relied upon by the Court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extra-judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state; falsely and to whom it is made in the circumstances which tend to support the statement. Relying upon an earlier judgment in Rao Shiv Bahadur Singh v. State of V. P. AIR1954 SC 322 , 1954 Crilj910 , [1954 ]1 SCR1098 , this Court again in Maghar Singh v. State of Punjab AIR1975 SC 1320 , (1975 )4 SCC234 , 1975 (7 )UJ517 (SC ) held that the evidence in the form of extra-judicial confession made by the accused to witnesses cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If the Court believes the witness before whom the confession is made, then the conviction can be founded on such evidence alone. ( 6. ) THE Apex Court in case of Kanda (supra), relying on earlier judgment passed in case of Guru Singh v. State of Rajasthan (2001) Volume 2 SCC 205 held that if the extra-judicial confession is not voluntary one, the same cannot be relied upon. ( 7. ) AFTER excluding the evidence of extra-judicial confession and recovery of the dead body at the instance of the appellant or disclosure of the appellant about the place where the dead body was thrown and availability of the dead body, there remains no other evidence of conclusive and clinching nature to sustain the conviction of the appellant. ( 7. ) AFTER excluding the evidence of extra-judicial confession and recovery of the dead body at the instance of the appellant or disclosure of the appellant about the place where the dead body was thrown and availability of the dead body, there remains no other evidence of conclusive and clinching nature to sustain the conviction of the appellant. Therefore, we are of the opinion that this appeal deserves to be allowed. In the result appeal is allowed. Conviction and sentences of the appellant, as mentioned hereinabove are hereby set-aside. He stands acquitted. The learned Trial Court is directed to release the appellant forth with, if not required in any other criminal case.