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2012 DIGILAW 217 (CHH)

INDRAJEET v. STATE OF M. P.

2012-08-28

RAJEEV GUPTA, SUNIL KUMAR SINHA

body2012
JUDGMENT Sunil Kumar Sinha, J. 1. These appeals are directed against the judgment dated 6th of February, 1996 passed in Sessions Trial No. 29/1994 by the Additional Sessions Judge, Khairagarh, Sessions Division-Rajnandgaon. 2. By the impugned judgment, the appellants have been convicted under Sections 302/34 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 1,000/- with default sentence of additional imprisonment for 6 months. 3. The facts, briefly stated, are as under:- The appellants are residents of Village-Chingli. They were earning their livelihood by doing labour work in Nagpur (Maharashtra). They had brought Vimla Bai (deceased) from Nagpur to Village-Chingli. On that account a Panchayat was convened, but thereafter, the deceased was residing with appellant-Chagan. On 19.10.1993, her dead body was found at an open place in village-Salhekala. Kotwar-Gyan Das (P.W.1) lodged a Murg intimation (Ex-P-1) of an unknown person. Later on, the body was identified. Inquest (Ex-P-7) on the dead body was prepared on 20.10.1993. The dead body was sent for postmortem. The dead body was in highly decomposed condition. There were no bony injuries. Almost all the organs were decomposed and no injury was found over the remaining organs. The autopsy surgeon (P.W.2) opined that it was difficult to ascertain the cause of death. About the duration, he opined that the death must have occurred 3 to 5 days prior to the autopsy, which was conducted on 21.10.1993. The autopsy report is Ex-P-6. For further investigation Viscra was preserved and was sent for chemical examination. According to the chemical examiners report (Ex-D-1), received from FSL Sagar, no poisonous substance etc. were found in Viscra. In further investigation, appellant-Chagan was taken into custody and his memorandum statement (Ex-P-3) under Section 27 of the Evidence At was recorded on 25.10.1993, and some clothes, belonging to the deceased, were seized at his instance vide seizure memo Ex-P-4. Likewise memorandum statement of appellant-Indrajeet (Ex-P-9) was recorded on 30.10.1993 and one belt was seized at his instance vide seizure memo Ex-P-10. The prosecution relied on the evidence of Alakhram (P.W.5), Khomlal (P.W.7) and Domar (P.W.8) before whom appellant-Chagan allegedly made extrajudicial confession, On trial Khomlal (P.W.7) turned hostile and Alakhram (P.W.5) did not support the extra-judicial confession allegedly made by appellant-Chagan. The learned Sessions Judge relied on the testimony of Domar (P.W.8) and convicted and sentenced the appellants on the solitary circumstance of extra-judicial confession. 4. Mrs. The learned Sessions Judge relied on the testimony of Domar (P.W.8) and convicted and sentenced the appellants on the solitary circumstance of extra-judicial confession. 4. Mrs. Savita Tiwari, learned counsel appearing on behalf of the appellants, has argued that the finding relating to homicidal death is based on no material on record; the evidence of extra-judicial confession before Domar (P.W.8) is shaky; therefore, the conviction cannot be sustained. 5. 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. 6. We have heard the learned counsel for the parties at length and have also perused the records of the Sessions case. 7. The dead body of the deceased was found at an open place in a different village on 19.10.1993. The inquest was conducted on 20.10.1993. The dead body was in highly decomposed condition. Dr. Ashok Khare conducted autopsy on the dead body on 21.10.1993. He deposed that the dead body was of a female aged about 28 years; rigor mortis were not present over the dead body. Many maggots were present. Mouth, eyes, ears, nose and Vagina were completely destroyed on account of decomposition. Hairs were completely removed and skin was completely decomposed. Skin on almost all parts of the body was completely removed. Various holes were made by the maggots in the remaining part of the dead body. He deposed in clear words that he did not notice any external injury on the remaining parts of the dead body. No fracture was detected on any bone. Even on internal examination, no fracture was detected. Brain was liquefied Trachea was full of maggots. He further deposed in clear words that since the dead body was highly decomposed, therefore, no injury could be detected. He could not ascertain the cause and mode of death. Therefore, Viscra was preserved and was sent for further examination to Forensic Science Laboratory. The learned Sessions Judge has discussed the above evidence of the autopsy surgeon in various paragraphs. He also took into notice the Viscra report (Ex-D-1), in which no poison was found, and then recorded the finding that since it was not a case of suicide, therefore, it was a case of homicidal death. The learned Sessions Judge has discussed the above evidence of the autopsy surgeon in various paragraphs. He also took into notice the Viscra report (Ex-D-1), in which no poison was found, and then recorded the finding that since it was not a case of suicide, therefore, it was a case of homicidal death. We find that the above finding recorded by the learned Sessions Judge is based on no material on record and the same is perverse. 8. Now we shall consider the circumstance of extra-judicial confession. 9. It has been laid down in many cases that if the evidence about extra judicial confession comes from the mouth of witness/witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test, on the touchstone of credibility if it passes the test, the extra judicial confession can be accepted and can be the basis of a conviction. 10. 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 . 11. Domar (P.W.8) deposed that after the village Panchayat, the appellants were advised to send back the girl. Thereafter, he had not seen appellant-Chagan. On the next day, he met appellant-Chagan and asked about the girl. On this, he told that he has committed murder of the girl, which he committed with the help of appellant-Indrajeet Domar (P.W.8) then told this fact to Bhuneshwar. Thereafter, he had not seen appellant-Chagan. On the next day, he met appellant-Chagan and asked about the girl. On this, he told that he has committed murder of the girl, which he committed with the help of appellant-Indrajeet Domar (P.W.8) then told this fact to Bhuneshwar. In cross-examination, Domar (P.W.8) denied to give any statement to the police in this regard. When he was faced with his case diary statement (Ex-D-3) recorded under Section 161 Cr.P.C., he denied to give such statement to the police. He admitted in para 4 of his cross-examination that he was a police witness in case of Dhanudas and he was also a police witness in case of Amritlal. We find from his dairy statement that it was recorded on 28.10.1993. In the dairy statement he contended that 3-4 days prior to the said date, the extra-judicial confession was made. We note from his evidence that, according to him, only appellant-Chagan made extra-judicial confession before him and he also took the name of appellant-Indrajeet. Thus, there was no confession, as such, by appellant-Indrajeet. We further note that appellant-Chagan was taken into custody by the police on 25.10.1993 and his memorandum/discovery statement was recorded. When appellant-Chagan was already in police custody, how he can make extra-judicial confession before Domar (P.W.8), which Domar claimed that he made 3-4 days prior to 28.1 0.1993. Moreover, when the alleged confession was made to Domar (P.W.8), why Domar kept quite for 3-4 days when the police party was present in the village for investigation of the crime. Bhuneshwar, to whom he allegedly disclosed the confession, has not been examined. On due appreciation of the evidence of Domar (P.W.8), we find his evidence to be shaky. 12. Mr. Dubey has stressed upon the discoveries and seizure made at the instance of the appellants. The seizure of belt at the instance of appellant Indrajeet would assume no importance because the prosecution could not establish that the deceased died homicidal death and that the death was caused by strangulation in which the above article, belonging to appellant-Indrajeet, was used. So far as the seizure of clothes at the instance of appellant-Chagan is concerned, that would also not assume importance in light of the above discussion and that alone cannot be the basis for conviction. 13. In case based on circumstantial-evidence, the circumstances must be fully established. So far as the seizure of clothes at the instance of appellant-Chagan is concerned, that would also not assume importance in light of the above discussion and that alone cannot be the basis for conviction. 13. In case based on circumstantial-evidence, the circumstances must be fully established. The circumstances so established must be of conclusive nature and tendency. The circumstances should not be capable of being explained and the chain of circumstantial evidence must be complete. 14. In the instant case, the circumstances set-forth by the prosecution were not fully established. They were not of conclusive nature and tendency, and were capable of being explained. Therefore, we are unable to sustain the conviction of the appellants on the above set of circumstantial evidence. 15. For the foregoing reasons, the appeals are allowed. The conviction and sentences awarded to the appellants under Section 302/34 IPC are set aside. The appellants are acquitted of the charges framed against them. It is stated that the appellants are on bail. Their bail bonds are cancelled and sureties stand discharged. Appeals Allowed.