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2012 DIGILAW 270 (CHH)

PARSU @ PARASRAM GOND v. STATE OF C. G.

2012-10-15

RADHE SHYAM SHARMA, SUNIL KUMAR SINHA

body2012
JUDGMENT Sunil Kumar Sinha, J. :- 1. This appeal is directed against the judgment dated 7th of August, 1996 passed in Sessions Trial No. 456/95 by the Sixth Additional Sessions Judge, Bilaspur. By the impugned judgment, the appellant has been convicted u/s 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 50/- with default sentence of R.I. for 1 month. 2. The facts, briefly stated, are as under:- The case of the prosecution is that deceased-Paras Ram had illicit relations with the wife of the appellant. On 9.8.95, in the evening, he had gone out from his house. He did not return in the night. In the morning i.e. on 10.8.95 his dead body was found near marghat (cremation ground) of the village. He had sustained multiple serious injuries. First Information Report (F.I.R. - Ex.-P/1) was lodged by his brother-Chandram (PW-1). In the F.I.R. (Ex.-P/1) he raised suspicion against the appellant. The Investigating Officer reached to the place of occurrence, gave notice (Ex.P/2) to the Panchas and prepared inquest (Ex.-P/3) on the dead body of the deceased. The dead body was sent for postmortem to Government Hospital, Ratanpur by requisition Ex.-P/20. The post-mortem examination was conducted by Dr. N.K. Samdariya (PW-8). He found multiple incised wounds on the dead body of the deceased and opined that the death was on account of the above injuries and it was homicidal in nature. The post-mortem report is Ex.-P/17. Maniram (PW-3) was village Kotwar. He contended that on 10.8.95, while the investigation was going on, the appellant made extra-judicial confession before him which he told to the Investigating Officer, Ashok Joshi (PW-9). The appellant, then made confession before the Panchayat in presence of police. In further investigation, the appellant was taken into custody and his memorandum statement (Ex.-P/4) u/s 27 of the Evidence was recorded at about 4.30 p.m. on 11.8.95 and the clothes and a patasi (a sharp edged object) were seized at his instance vide seizure memo(s) Ex.-P/5, P/6, P/7 & P/8, The above articles and the articles seized from the place of occurrence and the hairs allegedly found in the hand of the deceased and the sample of hairs of the appellant, all were sent for their chemical examination to Forensic Science Laboratory (F.S.L.), Sagar, from where, reports were received vide Ex.-P/23 & P/24. According to the F.S.L. reports, blood stains were not found on the underwear (Article-A), towel (Article-B) and patasi (Article-L) seized at the instance of the appellant. Blood stains were also not found on the nails (Article-I) and hairs (Article-K) of the appellant. Blood stains was also not found in the hairs (Article-J) found in the hand of the deceased. About the hairs, it was found that though both the hairs were human hairs, but the samples were inadequate for comparison. 3. The case of the prosecution was mainly based on the extra-judicial confession made before Village Kotwar, Maniram (PW-3). The learned Sessions Judge relied on the extra-judicial confession made before Kotwar and convicted & sentenced the appellant as above. 4. Mr. Sourabh Sharma and Mr. Aditya Sharma, learned counsel appearing on behalf of the appellant, have argued that the circumstances of extra-judicial confession was not established; the evidence of Maniram (PW-3)was unreliable; blood stains were not found on the articles seized from the possession of the appellant; it was not proved that the hairs found in the hand of the deceased and the hairs of the appellant were similar; therefore, conviction based on above evidence of extra-judicial confession 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. Having heard learned counsel for the parties at length, we have perused the records of the sessions case. 7. The conviction of the appellant is mainly based on the evidence of extra-judicial confession. 8. Maniram (PW-3) is the solitary witness of extra-judicial confession. Maniram (PW-3) was village Kotwar. He deposed that on the fateful day at about 12-12.30 p.m. he met the appellant on the way. The appellant was coming from his house. The appellant stated that since the deceased had illicit relations with his (appellant's) wife, he has committed murder of the deceased. Maniram (PW-3) said the appellant that Daroga Saheb is present in the village, go and tell him. Thereafter Maniram (PW-3) went to Daroga, Ashok Joshi (PW-9), who was making panchnama and told him about the extra-judicial confession made by the appellant to him. In cross-examination, he admitted that he had gone along with Chandram (PW-1) to lodge the report of the incident. Thereafter Maniram (PW-3) went to Daroga, Ashok Joshi (PW-9), who was making panchnama and told him about the extra-judicial confession made by the appellant to him. In cross-examination, he admitted that he had gone along with Chandram (PW-1) to lodge the report of the incident. They had returned to the village at about 11.00 a.m. Thereafter the police also came in the village. When the appellant made confession before him, he immediately told it to Daroga. He deposed that then the appellant also confessed before Daroga. However in Para-7 of his cross-examination, he admitted that when the appellant did not tell the police about the incident till 12 in the night, then he was taken to the police station and was again brought in the village at about 3-4.00 a.m. by the police and then the police persons told the village persons that the appellant had accepted his guilt and they should also ask, and then the appellant confessed before the villagers. Vishamber, he himself, Ashwani and many other persons along with police persons were present at that time in the Panchayat Bhawan. 9. Sub-Inspector, Ashok Joshi (PW-9), is the Investigating Officer. Though he deposed about the entire investigation and preparation of various documents, he did not depose that village Kotwar, Maniram (PW-3), had informed him during the course of investigation that the appellant had made extra-judicial confession before him. He deposed in Para-22 of his evidence that on 10.8.95 he was throughout in the village and he returned to the police station at about 4-5.00 p.m. on 11.8.95. He denied the suggestion that in between this period he had taken the appellant to the police station in the night of 10.8.95 and brought him in the morning as claimed by Kotwar (PW-3). If we look into the discovery statement (Ex.-P/4) of the appellant, it was recorded at about 4.30 p.m. on 11.8.95 after taking the appellant into custody at that very point of time. We have no reason to disbelieve the evidence of Ashok Joshi (PW9). 10. If we look into the discovery statement (Ex.-P/4) of the appellant, it was recorded at about 4.30 p.m. on 11.8.95 after taking the appellant into custody at that very point of time. We have no reason to disbelieve the evidence of Ashok Joshi (PW9). 10. In appreciation of the evidence of Maniram (PW-3) and Ashok Joshi (PW-9), we find the above part of evidence of Maniram (PW-3) unreliable in which he claimed that prior to recording of the discovery statement of the appellant on 11.8.95, the appellant was taken by the police to the police station and was again brought back when he admitted his guilt before the police. The evidence of Maniram (PW-3) that he had told about the confession to the I.O. (PW-9) on 10.8.95 also becomes false on the evidence of I.O. (PW-9) who did not depose that Kotwar (PW-3) had told him about confession made by the appellant. Thus, the evidence of Maniram (PW-3) which was contrary to the evidence of Ashok Joshi (PW-9) on the above material particulars, was not wholly reliable. 11. 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 . 12. In light of the above principles laid down by the Supreme Court and further in light of the evidence of Maniram (PW-3), we are of the view that it was not safe to rely on his solitary evidence relating to extra-judicial confession allegedly made by the appellant before him. The learned Sessions Judge fell into error in holding that it was proved by the evidence of Maniram (PW-3) that the appellant had made extra-judicial confession before him. 13. So far as discovery and seizure part is concerned, blood stains were not found on the clothes of the appellant and the patasi, seized at the instance of the appellant. The learned Sessions Judge fell into error in holding that it was proved by the evidence of Maniram (PW-3) that the appellant had made extra-judicial confession before him. 13. So far as discovery and seizure part is concerned, blood stains were not found on the clothes of the appellant and the patasi, seized at the instance of the appellant. Therefore, mere seizure of those articles, belonging to the appellant, were not incriminating against him. 14. Some hairs were found in the hand of the deceased. Therefore, hairs of the appellant were also seized. Though it was found by the F.S.L. that both the hairs were human hairs, but it was not established that they were of the same person. Thus the above evidence was also not incriminating against the appellant as it was not proved that the hairs found in the hand of the deceased were the hairs of the appellant which were seized on the pretext that the deceased might have got them in his hand while quarrelling or scuffling with the assailant. 15. In a case based on circumstantial evidence, the circumstances must be fully established. The circumstances so established should be of conclusive nature and tendency. They should not be capable of being explained and the chain of circumstantial evidence must be complete. But in the instant case, neither the circumstances were fully established, nor the chain of circumstantial evidence was also complete. 16. For the foregoing reasons, we are unable to sustain the conviction of the appellant on the above set of circumstantial evidence. 17. Accordingly, the appeal is allowed. The conviction and sentences awarded to the appellant u/s 302 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.