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2013 DIGILAW 68 (CHH)

MEGHANATH v. STATE OF C. G.

2013-02-19

Radhe Shyam Sharma, Sunil Kumar Sinha

body2013
JUDGMENT 1. These appeals are directed against the judgment dated 31st of October, 2002 passed in Sessions Trial No. 86/2002 by the Third Additional Sessions Judge (FTC), Bemetara, District Durg (C.G.). By the impugned judgment, the appellants have been convicted u/ss 302/34 & 318/34 IPC and sentenced to undergo imprisonment for life and to pay fine of 500/- and R.I. for 1 year with a direction to run the sentences concurrently. 2. The facts, briefly stated, are as under:- Appellant- Ganga Bai (A-1) was a deserted lady, aged about 22 years. Ganga Bai (A-1) was residing in the house of her father- Dhanau (PW-9) in village Khairjhiti. Appellant- Meghanath (A-2) was aged about 23 years. He was also a resident of same village. He had a betel shop in front of the house of Dhanau (PW-9). The case of the prosecution is that Meghanath (A-2) had developed illicit relations with Ganga Bai (A-1). Ganga Bai (A-1) was carrying pregnancy of about 8 months. When it was noticed by the villagers, a Panchayat was convened and the villagers advised Dhanau (PW-9) to sent her for treatment. Ganga Bai (A-1) was sent to Dr. Sobha Fating (PW-10). After the sonography, she found that Ganga Bai (A-1) was carrying pregnancy of 37 weeks. Ganga Bai (A-1) and Dhanau (PW-9) did not disclose all this to the villagers. On 8th of January, 2002, the villagers noticed physic of Ganga Bai (A-1) and raised suspicion that the fetus carried by her must have been aborted. On this a village Panchayat was again convened. The allegations are that in the said Panchayat, Ganga Bai (A-1) admitted that she had carried pregnancy through Meghanath (A-2). She had aborted the fetus which was buried by Meghanath (A-2) in pethu (muddy filed) in the outer area of the village. Thereafter Ganga Bai (A-1) took the villagers to that place and the villagers found that the dead body of a newly born male child was lying in the mud (pethu). Manharan (PW-17) was village Kotwar. He also saw the dead body of the male child and lodged First Information Report (F.I.R. - Ex.-P/8). The F.I.R. (Ex.-P/8) does not contain the name of appellant- Meghanath (A-2). According to the F.I.R. (Ex.-P/8), the child, which was delivered by Ganga Bai (A-1), was hidden in the pethu by Ganga Bai (A-1) herself. Manharan (PW-17) was village Kotwar. He also saw the dead body of the male child and lodged First Information Report (F.I.R. - Ex.-P/8). The F.I.R. (Ex.-P/8) does not contain the name of appellant- Meghanath (A-2). According to the F.I.R. (Ex.-P/8), the child, which was delivered by Ganga Bai (A-1), was hidden in the pethu by Ganga Bai (A-1) herself. The Investigating Officer reached to the place of the occurrence, gave notice (Ex.-P/4) to the Panchas and prepared inquest (Ex.-P/3) on the dead body of the deceased. The dead body was sent for postmortem. The postmortem examination was conducted by Dr. R.P. Sharma (PW-18). He noticed that it was a dead body of newly born infant. Mud was present all over the body. Placenta and cord were attached to the umbilicus. It was at the stage of decomposition. There was a lacerated wound of 5 x 2.5 x 2 cm on the right temporal region. Blood clots were present around the injury. Clotted blood was also present in nostril. The above injury was caused by hard and rough object. Clotted blood was present under the scalp on parietal and temporal regions. There was fracture over the right temporal bone. Fractures were also present over right and left parietal bones. The internal organs were congested. He opined that the infant was borne alive having gestational age of 32 to 34 weeks. The cause of death was ante-mortem injuries and the fractures sustained by the infant and it was homicidal in nature. The postmortem report is EX.-P/9. Admittedly, there was no eye-witness to the incident and the case of the prosecution was based on circumstantial evidence. The prosecution came with the case that Ganga Bai (A-1) had made extra-judicial confession in village Panchayat and she also confessed in her statement recorded u/s 313 Cr.P.C. that appellant- Meghanath (A-2) had administered some medicine upon her due to which she delivered the child and later on the child was committed to death by him; and Ganga Bai (A-1) also pointed out that place to the villagers from where the dead body was recovered. The Sessions Judge relied on these circumstances and convicted and sentenced the appellants as above. Hence this appeal. 3. The Sessions Judge relied on these circumstances and convicted and sentenced the appellants as above. Hence this appeal. 3. Learned counsel appearing on behalf of the appellants have argued that the confession of Ganga Bai (A-1) before the village Panchayat was not proved; even otherwise also her confession either in village Panchayat or in her 313 Cr.P.C. statements was not substantive evidence against Meghanath (A-2) there was no incriminating evidence against Meghanath (A-2) that he had committed murder of the child; he has been convicted on insufficient evidence. About Ganga Bai (A-1), it was argued that even if the entire case of the prosecution is admitted, she would not be liable for punishment u/s 302/34 IPC as there is no evidence that either she committed murder of the child (infant) or she in any manner shared common intention with Meghanath (A2) for commission of murder of the said child. 4. On the other hand, Mrs. Madhu Nisha Singh, Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. She took us to the evidence of Dhanau (PW9), Leelaram (PW-15), Punnilal (PW-15) and Manharan (PW-17), and she also read the statement of Ganga Bai (A-1) recorded u/s 313 Cr.P.C. 5. We have heard counsel for the parties at length and have also perused the records of the sessions case. 6. We have gone through the evidence of Dr. R.P. Sharma (PW- 18). Dr. Sharma (PW-18) had conducted autopsy on the dead body of the infant and noticed the above injuries. He had opined that all the injuries were antemortem caused by hard and rough object. In Para-5 of his evidence, he clearly deposed that the infant was borne alive having gestational age of 32 to 34 weeks. It was therefore established that Ganga Bai (A-1) had delivered a male child who was alive at the time of the delivery and thereafter he was subjected to death. 7. The question arises as to who was responsible for homicidal death of the child. As we have already stated that there was no eye-witness to the incident and the main circumstance on which the Sessions Judge has relied is the confession which was made by appellant- Ganga Bai (A-1). 8. Let us firstly examine as to whether Ganga Bai (A-1) had made any confession before the village Panchayat or not? 9. As we have already stated that there was no eye-witness to the incident and the main circumstance on which the Sessions Judge has relied is the confession which was made by appellant- Ganga Bai (A-1). 8. Let us firstly examine as to whether Ganga Bai (A-1) had made any confession before the village Panchayat or not? 9. Dhanau (PW-9) is father of Ganga Bai (A-1). He deposed that in village Panchayat, Ganga Bai (A-1) had stated that she had carried pregnancy from Meghanath (A-2). Meghanath (A-2) had committed her child to death. He had buried her child in the pethu. The case of the prosecution is that after the said confession made by Ganga Bai (A-1), she took the villagers to the pethu and the dead body of the child was recovered from that place. 10. Leelaram (PW-15) is the other witness of village Panchayat. He stated in clear words in Para-2 of his examination-in-chief that Ganga Bai (A1) had stated in the Panchayat that she had carried pregnancy from Meghanath (A-2), and thereafter she took the villagers to the pethu where the child was buried. 11. Punnilal (PW-16) also deposed in similar fashion. He also deposed in Para-6 of his examination-in-chief that Ganga Bai (A-1) had only stated that the child was from the side of Meghanath (A-2) and thereafter she took the villagers to that place where the child was thrown. The villagers had seen the dead body of the child. 12. Manharan (PW-17) was the other witness of Panchayat. He was village Kotwar. He also deposed that in the village Panchayat when the Panchas asked Ganga Bai (A-1) about her child, Ganga Bai (A-1) took them to the pethu and the child was shown. 13. In appreciation of the evidence of these witnesses, we find that none of the independent witness i.e. Leelaram (PW-15), Punnilal (PW-16) and Manharan (PW-17), had deposed that Ganga Bai (A-1) had also stated in the Panchayat that her newly born child was committed to death by Meghanath (A-2) and Meghanath (A-2) had buried the child in the mud of pethu. Manharan (PW-17) had lodged the F.I.R. (Ex.-P/8) and the merg intimation (Ex.-P/12). They were the first hand information to the police. In these two documents also, there is no mention about the fact that Ganga Bai (A-1) had confessed before the Panchayat that her child was committed to death by Meghanath (A-2). Manharan (PW-17) had lodged the F.I.R. (Ex.-P/8) and the merg intimation (Ex.-P/12). They were the first hand information to the police. In these two documents also, there is no mention about the fact that Ganga Bai (A-1) had confessed before the Panchayat that her child was committed to death by Meghanath (A-2). We note that the first information report was registered against Ganga Bai (A-1) only and the name of Meghanath (A-2) was missing in the F.I.R. (Ex.-P/8). This omission was fatal to the prosecution. If appellant- Ganga Bai (A-1) would have told the facts in Panchayat that her child was committed to death by Meghanath (A-2), these facts must have been mentioned in the F.I.R. (Ex.-P/8) and merg intimation (Ex.-P/12) which were lodged by Manharan (PW-17) who admittedly had attended the village Panchayat. We are of the view that in the above facts and circumstances of the case, the evidence of Dhanau (PW-9) does not assume much importance and it was not proved beyond all reasonable doubt that Ganga Bai (A-1) had confessed before the Panchayat taking the name of Meghanath (A-2) as the assailant of her newly born child. 14. Mrs. Singh has argued that Ganga Bai (A-1) had also made confessional statement in 313 Cr.P.C. statement, therefore, it was a judicial confession and it can be made basis for conviction of appellant- Meghanath (A-2). 15. We have gone through the statement of Ganga Bai (A-1) recorded U/S 313 Cr.P.C. 16. In Ashok Kumar Vs. State of Haryana, AIR 2010 SC 2839 , it was held that dual purpose is sought to be achieved when the Courts comply with the mandatory requirement of recording the statement of an accused under Section 313 Cr.P.C. Firstly, every material piece of evidence which the prosecution proposes to use against the accused should be put to him in clear terms and secondly, the accused should have a fair chance to give his explanation in relation to that evidence as well as his own versions with regard to alleged involvement in the crime. This dual purpose has to be achieved in the interest of the proper administration of criminal justice and in accordance with the provisions of the Cr.P.C. Furthermore, the statement under Section 313 of the Cr.P.C. can be used by the Court in so far as it corroborates the case of the prosecution. This dual purpose has to be achieved in the interest of the proper administration of criminal justice and in accordance with the provisions of the Cr.P.C. Furthermore, the statement under Section 313 of the Cr.P.C. can be used by the Court in so far as it corroborates the case of the prosecution. Of course, conviction per se cannot be based upon the statement under Section 313 of the Cr.P.C. 17. In Ramnaresh and Others Vs. State of Chhattisgarh, (2012) 4 SCC 257 ? it was held that one of the main objects of recording of a statement under this provision of Cr.P.C. is to given an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequences in law must follow. Where the accused takes benefit of this opportunity, then his statement made under Section 313 Cr.P.C., insofar as it supports the case of the prosecution, can be used against him for rendering conviction. 18. On perusal of the above judgments, it would appear that though conviction per se cannot be based upon statement made u/s 313 Cr.P.C., but the contents of the above statement which supports the case of the prosecution can be used against the accused for rendering conviction. This indicates about the accused who himself has made the statement. But the legal position with relation to co-accused would be different. In Jitender Kumar Vs. State of Haryana, (2012) 6 SCC 204 , it was held that statement of one of the accused recorded u/s 313 Cr.P.C., admitting material parts of prosecution case cannot be used against other co-accused. However, statement having become part of judicial record could be used against the accused himself for convicting him, if prosecution had proved its case in accordance with law. 19. In the instant case, the statement of appellant- Ganga Bai (A -1) would show that she had made allegations against appellant- Meghanath (A-2) in so much that Meghanath (A-2) has committed murder of her child. This cannot be the sole basis for conviction of Meghanath (A-2). However, the legal consequence of the above material has to be looked into in light of the procedural law. 20. Now let us talk about the value of the confession of a co-accused. 21. This cannot be the sole basis for conviction of Meghanath (A-2). However, the legal consequence of the above material has to be looked into in light of the procedural law. 20. Now let us talk about the value of the confession of a co-accused. 21. Confessions of co-accused are not evidence as defined in S. 3 and no conviction can be founded thereon, but if there was other evidence on which a conviction can be based, they can be referred to as lending assurance to that conclusion and for fortifying it (Vide: Nathu Vs. State of Uttar Pradesh, AIR 1956 SC 56 , and Kashmira Singh Vs. State of Madhya Pradesh, AIR 1952 SC 159 ). 22. In State of MP Through CBI and Others Vs. Paltan Mallah and Others, (2005) 3 SCC 169 , it was held that extra-judicial confession of co-accused could be admitted in evidence only as a corroborative piece of evidence. In the absence of any substantive evidence against the accused, extra-judicial confession made by co-accused loses its significance and there cannot be any conviction based on it. 23. In the instant case, we have not believed the extra-judicial confession made by appellant- Ganga Bai (A-1). About her confessional statement in her examination u/s 313 Cr.P.C. we may only say that her such confessional statement would not be substantive evidence against the present appellant. In the instant case, we find no substantive evidence against appellant- Meghanath (A-2). They are only of corroborative nature. Therefore, conviction of Meghnath (A-2) based upon confessional statement of Ganga Bai (A-1) cannot be sustained. 24. Now we shall examine the case of appellant- Ganga Bai (A-1). 25. There is no evidence on record to show that Ganga Bai (A-1) had participated in commission of murder of her newly born child. The evidence on record would show that she had delivered a male child which was alive at the time of delivery and the dead body of the said child was recovered from the pethu. The case of the prosecution is that Ganga Bai (A-1) had shown that place where the dead body of the child was lying. There is no evidence to show as to who threw the dead body at that place. It is not a case that the dead body of the infant was recovered on the discovery made by Ganga Bai (A-1). There is no evidence to show as to who threw the dead body at that place. It is not a case that the dead body of the infant was recovered on the discovery made by Ganga Bai (A-1). Therefore, nothing more can be attributed to Ganga Bai (A-1) than that she showed the place where the dead body of her infant child was lying. Only on this evidence, Ganga Bai (A-1) cannot be convicted u/s 302/34 IPC. 26. The confessional statement of Ganga Bai (A-1) and pointing out the place of the dead body would show that any how she had knowledge that the dead body of her child was lying at a particular place and that place was shown to the villagers after the Panchayat. Section 318 IPC is titled as concealment of birth by secret disposal of dead body. It provides that whoever, by secretly burying or otherwise disposing of the dead body of a child, whether such child die before or after or during its birth, intentionally conceals or endeavours to conceal the birth of such child, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. It is a case in which at the most Ganga Bai (A-1) has concealed the birth of child by secret disposal of the dead body. We are of the view that in the above facts and circumstances of the case, Ganga Bai (A-1) would be liable for punishment u/s 318 IPC. 27. For the foregoing reasons, the appeal is partly allowed. The conviction and sentences awarded to appellant- Meghanath (A-2) u/ss 302/34 and 318/34 IPC are set-aside. He is acquitted of the charges framed against him. It is stated that appellant- Meghanath (A-2) is on bail since 13.8.2008. His bail bonds are discharged. The conviction and sentences awarded to appellant- Ganga Bai (A-1) u/s 302/34 IPC are also set-aside. She is acquitted of the above charges. However her conviction u/s 318/34 IPC is altered to Section 318 IPC simplicitor and the sentence awarded under this Section is maintained. It is stated that appellant- Ganga Bai (A-1) is in jail since 24.1.2002. Thus she has already undergone the sentence awarded to her. She be released forthwith, if not required in any other case. HEAD LINES 1. However her conviction u/s 318/34 IPC is altered to Section 318 IPC simplicitor and the sentence awarded under this Section is maintained. It is stated that appellant- Ganga Bai (A-1) is in jail since 24.1.2002. Thus she has already undergone the sentence awarded to her. She be released forthwith, if not required in any other case. HEAD LINES 1. The conviction can not be based solely upon statement made u/s 313 Cr.P.C. - But the above statement can be used against the accused making it for rendering conviction. 2. The confession of a co-accused is not a substantive evidence, whether it be judicial or extra-judicial. Appeal Partly Allowed.