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2012 DIGILAW 189 (CHH)

CHURAMAN SINGH v. STATE OF M. P. (NOW C. G. )

2012-07-31

RAJEEV GUPTA, SUNIL KUMAR SINHA

body2012
JUDGMENT Sunil Kumar Sinha, J. 1. This appeal is directed against the judgment dated 10th of May, 2000, passed in Session Trial No. 15/2000 by the First Additional Sessions Judge, Durg. By the impugned judgment, the appellant has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life. 2. The facts, briefly stated, are as under :- Deceased-Khemlal was cousin (maternal brother) of the appellant. On 17.10.1999, at about 7.00 a.m., dead body of the deceased was found in the Badi of one Banshilal. There were cut injuries on his neck and testicle Dead body was brought to the house and merg intimation was lodged. The dead body was sent for postmortem. Postmortem examination was conducted by Dr. A.K. Mishra (PW-5), who noticed following injuries: i. Cut injury of 7 x 1.25 inches on the neck; trachea, esophagus and veins of the neck were cut; blood clots were present inside the trachea. ii. Cut injury of 1 x 1.25 x 3/4 inches on the testicle. iii. Cut injury of 1 x 1 x 3/4 inches on the lower portion of the testicle The Autopsy Surgeon opined that the injuries were ante-mortem caused by sharp object; the cause of death was shock and hemorrhage and the death was homicidal in nature. Postmortem report is Ex. P/8. According to the prosecution, on 31.10.1999, the appellant made extra judicial confession before Chandrashekhar Sen (PW-2), Thakurram (PW-3), Piluram (PW-6) and Nathhelal (PW-7). Thereafter, memorandum statement of the appellant (Ex. P/4) under Section 27 of the Evidence Act was recorded and a shaving blade was sized at his instance vide seizure memo Ex. P/5. The seized articles were sent for chemical examination to Forensic Science Laboratory (FSL), Raipur, from where, a report was received. According to the FSL report, blood stains were not found on the clothes and the 'shaving blade seized from the possession of the appellant. Admittedly, there was no eye-witness to the incident and the case of the prosecution was based on circumstantial evidence. Following are the circumstances, on which, the prosecution relied. i. The appellant made extra judicial confession before above 4 witnesses. ii. Blood stained articles (clothes and shaving blade) were seized at the instance of the appellant. The learned Sessions Judge did rely on the circumstance of memorandum and seizure made at the instance of the appellant. Following are the circumstances, on which, the prosecution relied. i. The appellant made extra judicial confession before above 4 witnesses. ii. Blood stained articles (clothes and shaving blade) were seized at the instance of the appellant. The learned Sessions Judge did rely on the circumstance of memorandum and seizure made at the instance of the appellant. However, relying on the solitary circumstance of extra judicial confession, it was held that the appellant had committed murder of the deceased. 3. Mr. Rajnish Shrivastava learned counsel appearing on behalf of the appellant, argued that the evidence of extra judicial confession is shaky; there are material contradictions in the statement of witnesses of the extra judicial confession. 4. On the other hand, Mr. Arvind Dubey, learned Panel Lawyer appearing on behalf of the State opposed these arguments and supported the judgment passed by the Sessions Court. 5. We have heard learned counsel for the parties at length and have also perused the records of the Sessions Case. 6. In Sk. Yusuf Vs. State of West Bengal AIR 2011 SC 2283 , the Supreme Court held that the extra judicial confession is weak type of evidence. It must be established to be true and made voluntarily in a fit state of mind. The words of witness must be clear, unambiguous and clearly convey that accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility. Reference has been made to State of Rajasthan Vs. Raja Ram (2003) 8 SCC 180 and Kulvinder Singh & Another Vs. State of Haryana (2011) 5 SCC 258 . 7. Now, we shall proceed to examine the evidence of extra judicial confession. 8. Chandrashekhar Sen (PW-2) was working as Kotwar of the village. On the date of postmortem, a lady told him that the appellant was roaming with a knife in Forest Nursery. When he went to the Nursery, he found the appellant there, who was sleeping under a tree having a knife in his hand. The appellant was caught in the Nursery and was brought to the village. In the village, the appellant made extrajudicial confession before Sarpanch Nathhelal (PW-7), Piluram (PW-6) and Thakurram (PW-3). The appellant did not confess that he had assaulted the deceased by knife, but he confessed that he had assaulted the deceased by a shaving blade. The appellant was caught in the Nursery and was brought to the village. In the village, the appellant made extrajudicial confession before Sarpanch Nathhelal (PW-7), Piluram (PW-6) and Thakurram (PW-3). The appellant did not confess that he had assaulted the deceased by knife, but he confessed that he had assaulted the deceased by a shaving blade. 9. Thakurram (PW-3) deposed that the appellant was absconding since the date of incident. He came to the village after postmortem. On third day of the incident, the appellant was sitting in the Hotel of one Gokulram. Up-Sarpanch-Anandram, Thakurram, Bhikhu Patel, Chandrashekhar (PW-2) and many other villagers were also present there and the appellant made extrajudicial confession before them. 10. Piluram (PW-6) deposed that the appellant made extra judicial confession in the village Panchayat. 11. Nathhelal (PW-7) deposed that the appellant had made extrajudicial confession before many villagers that he had killed the deceased by using shaving blade. However, in cross-examination, he admitted that one Shekhar had told him about extra judicial confession made by the appellant before village Panchayat and no confession was made in his presence. 12. In appreciation of the evidence of above witnesses, we find that the evidence of Nathhelal (PW-7) is hearsay. Chandrashekhar Sen (PW-2) deposed that he caught the appellant in Forest Nursery, and brought him to the village and then extrajudicial confession was made. But, Thakurram (PW-3) deposed that on the third day of incident, the appellant was sitting in the Hotel of Gokulram and there he made extra judicial confession before the villagers. Contradicting the above 2 contentions of Chandrashekhar Sen (PW-2) and Thakurram (PW3), Piluram (PW-6) deposed that the extrajudicial confession was made in the village Panchayat. All the above 3 witnesses of extra judicial confession have given different versions relating to the place of confession as also the manner, in which, it was made by the appellant. The learned Sessions Judge completely lost sight of above important contradictions in the evidence of the witnesses of extra judicial confession. The manner, in which, these witnesses have deposed about extra judicial confession, makes their evidence unreliable. It is not a case, in which, confession was made before different witnesses at different point of time. It is a case, in which, the confession was made at one point of time before all above 4 witnesses, who have contradicted on material aspects. The manner, in which, these witnesses have deposed about extra judicial confession, makes their evidence unreliable. It is not a case, in which, confession was made before different witnesses at different point of time. It is a case, in which, the confession was made at one point of time before all above 4 witnesses, who have contradicted on material aspects. We are of the view that in the above facts and circumstances of the case, the learned Sessions Judge fell into error in relying on the solitary circumstance of extra judicial confession allegedly made by the appellant before the above witnesses. 13. Besides the above, we find that Dr. A.K. Mishra (PW-5) clearly admitted in his cross-examination that the injury found over the neck could not have been caused by a shaving blade. 14. Therefore, the conviction based on the solitary evidence of extra judicial confession cannot be sustained and the appellant deserves to be acquitted. 15. We also note that the appellant was aged about 16 years and 3 months on the date of incident. According to the provisions of Juvenile Justice (Care and Protection of Children) Act (56 of 2000), Ss, 2 (k), 2(1), 7-A and 20, the benefit of the Act would also be available to the appellant because he was below 18 years of age on the date of commission of the offence. (See Dharambir Vs. State (NCT of Delhi) & Anr. and Vikram Singh Vs. State of Haryana). Since we have recorded the finding that the appellant is entitled to acquittal on merits of the case, we need not proceed further to pronounce the judgment on application and benefit of the above provisions of the Act. 16. In the result, the appeal is allowed. The conviction and sentence awarded to the appellant under Section 302 IPC are-set aside. The appellant is acquitted of the charges framed against him. The appellant is in jail since 1.11.1999, as he could not avail the facility of bail granted to him by suspending his sentence. He be released forthwith, if not required in any other case. Appeal Allowed.