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2012 DIGILAW 218 (CHH)

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

2012-08-28

RAJEEV GUPTA, SUNIL KUMAR SINHA

body2012
JUDGMENT Sunil Kumar Sinha, J. 1. This appeal is directed against the judgment dated 1st of August, 1996 passed in Session Trial No. 118/93 by the Second Additional Sessions Judge, Sarguja (Ambikapur). By the impugned judgment, the appellant has been convicted u/ss 302/201 IPC and sentenced to undergo imprisonment for life & to pay fine of Rs.1,000/- and R.I. for 5 years & to pay fine of Rs.500/- respectively with default sentences under each count with further direction to run the sentences concurrently. 2. The facts, briefly stated, are as under:- Deceased - Bhajanram was nephew (bhanja) of the 2 accused persons namely- Kuwar Singh (appellant herein) and Kole @ Ansai (acquitted accused). On 27.7.92 Bhajanram (deceased) had gone to the house of the accused for preparation of sweets. In the night, after the preparation, he slept in the house of the accused. Thereafter he went somewhere. In fact, he was missing since the night of 27.7.92. A missing report was lodged by his father- Sanduram (PW-7). On 29.7.92 dead body of the deceased was found in a well which was at a distance of 2 Km from the house of the accused. Merg intimation was lodged and the dead body was taken out from the well. A big stone was tied with the body, therefore, murder was suspected. The body was sent for postmortem. It revealed that it was a homicidal death. The case of the prosecution is that after recovery of the dead body, the appellant made extra-judicial confession before two ladies namely-Jungo Bai (PW-8) and Pukri Bai (PW-9). Therefore, the accused persons were taken into custody and were prosecuted. The learned Sessions Judge mainly relied on the extra-judicial confession made by the appellant before the above 2 witnesses and convicted & sentenced him as aforementioned. The co-accused namely- Kole @ Ansai was acquitted because there was no sufficient evidence against him. 3. Mr. Jagdish Singh Baraik, learned counsel appearing on behalf of the appellant, has argued that extra-judicial confession was not proved at all. The circumstance of last seen in the night of 27.7.92 would not be incriminating because the deceased was in the house of his maternal uncles and there is a long time gap between the deceased seen alive and the dead body found. 4. On the other hand, Mr. The circumstance of last seen in the night of 27.7.92 would not be incriminating because the deceased was in the house of his maternal uncles and there is a long time gap between the deceased seen alive and the dead body found. 4. On the other hand, Mr. J.A. Lohani, 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. Admittedly, the deceased was seen alive in the house of the accused persons in the night of 27.7.92 and his dead body was found on 29.7.92 at about 4-5.00 p.m. It was found in a well belonging to one villager which was situated at a distance of 2 Km from the house of the accused persons. 7. About the last seen theory, the Supreme Court held that the last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of a guilt in those cases. 8. In the instant case, as we have already stated, the deceased was seen alive in the night of 27.7.92 and his dead body was found in the evening of 29.7.92. Therefore, the above circumstance of last seen would not be incriminating as a possibility of any other person coming in between this period cannot be fully ruled out. 9. Now we shall consider the circumstance of extra-judicial confession. 10. Jungo Bai (PW-8) is wife of the deceased. She deposed that the dead body of her husband was found in the well. She had gone to the well. Many villagers were present there. Kuwar Singh was weeping and was saying that ^^eq>s cpk nsuk^^ ^^eq>s cpk nsuk^^ . 9. Now we shall consider the circumstance of extra-judicial confession. 10. Jungo Bai (PW-8) is wife of the deceased. She deposed that the dead body of her husband was found in the well. She had gone to the well. Many villagers were present there. Kuwar Singh was weeping and was saying that ^^eq>s cpk nsuk^^ ^^eq>s cpk nsuk^^ . Except the above, nothing was told by the appellant to her. This is what she stated in her examination-in-chief. 11. The other witness of extra-judicial confession is Pukri Bai (PW-9). She also deposed that she was present near the well when the dead body was found. Wife of the deceased also came there. At that time, the appellant was saying to the wife of the deceased like ^^eq>dks cpkyks^^ ^^cpk yks^^ . She also does not depose anything more than that. 12. The question is whether it was extra-judicial confession made by the appellant before the above 2 witnesses? The settled principles are 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. 13. In the instant case, there is no confession of the appellant before the above witnesses. Even if 'we accept their entire evidence, it only comes proved that the appellant was weeping and was saying as above. He never said that he has committed murder of the deceased. We are of the view that the learned Sessions Judge fell into error by holding that the circumstance of extra-judicial confession was proved on the evidence of above 2 witnesses namely- Jungo Bai (PW-8) and Pukri Bat (PW-9). 14. As it was a case based on 'circumstantial evidence', 'motive' would have greater relevancy or significance. We are of the view that the learned Sessions Judge fell into error by holding that the circumstance of extra-judicial confession was proved on the evidence of above 2 witnesses namely- Jungo Bai (PW-8) and Pukri Bat (PW-9). 14. As it was a case based on 'circumstantial evidence', 'motive' would have greater relevancy or significance. The prosecution has not at all established any 'motive' against the appellant for committing murder of the deceased. 15. In the said facts and circumstances, we are unable to sustain the conviction of the appellant on the above set of circumstantial evidence. We are of the view that the appellant deserves to be acquitted in this matter. 16. For the foregoing reasons, the appeal is allowed. The conviction and sentences awarded to the appellant u/ss 302/201 IPC are set-aside. The appellant is acquitted of the charges framed against him. It is stated that the appellant is on bail. His bail bonds are cancelled and surety stands discharged. Appeal Allowed.