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2014 DIGILAW 70 (CHH)

Ram Kumar v. State of C. G.

2014-02-17

INDER SINGH UBOWEJA, SUNIL KUMAR SINHA

body2014
JUDGMENT Sunil Kumar Sinha, J. 1. This appeal is directed against the judgment dated 25th of January, 2001 passed in Sessions Trial No. 326/2000 by the Additional Sessions Judge, Sakti, District Bilaspur. By the impugned judgment, the appellant has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 10,000/-, with default sentence for R.I. for one year. The facts, briefly stated, are as under:-- 2.1. Deceased-Premnath Ratre was working as a Patwari in village Hardi. He was residing in a rented premises belonging to the appellant. The said premises was situated at some distance from the house of the appellant. The appellant was also residing in the same village along with his wife. 2.2. The case of the prosecution is that the deceased had developed illicit relations with the wife of the appellant, therefore, the appellant was unhappy and he had a motive to commit murder of the deceased. On 28.05.2000, the appellant, deceased and one Kamta Prasad went for drinking liquor. They became heavily intoxicated. In the evening, appellant and Kamta Prasad brought the deceased on his motorcycle to his house, where the deceased started vomiting. The allegations are that while cleaning the vomits, the appellant caused strangulation to the deceased in his house. 2.3. At about 11.20 pm, merg intimation (Ex.-P-31) was lodged by the appellant. The Investigating Officer reached to the village, gave notice to the Panchas and prepared inquest (Ex.-P-4) on the dead body of the deceased. The dead body was sent for postmortem. The postmortem examination was conducted by Dr. N.P. Mishra (PW-15). He found certain injuries on the dead body of the deceased and opined that his cause of the death was asphyxia on account of strangulation and it was homicidal in nature. The postmortem report is Ex.-P-15. 2.4. On 11.06.2000, the appellant was taken into custody and he was detained in the Police Station. According to the prosecution, there he made extra judicial confession before Kavilal (PW-6), Shankar Singh (PW-16) and Tejram (PW-30). The confession was reduced into writing by the Sarpanch, Ramkumar Chouhan, of Gram Panchayat, Hardi. This document is Ex.-P-7. 2.5. Admittedly, there was no eye-witness to the incident and the case of the prosecution was based on circumstantial evidence. According to the prosecution, there he made extra judicial confession before Kavilal (PW-6), Shankar Singh (PW-16) and Tejram (PW-30). The confession was reduced into writing by the Sarpanch, Ramkumar Chouhan, of Gram Panchayat, Hardi. This document is Ex.-P-7. 2.5. 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 learned Sessions Judge has relied and convicted and sentenced the appellant as above:-- (a) The deceased was lastly seen in the company of the appellant; (b) The appellant made extra judicial confession in the Police Station; and (c) There was a 'motive' with the appellant to commit murder of the deceased, because the deceased had illicit relations with the wife of the appellant. 2. Ms. Savita Tiwari, learned counsel appearing on behalf of the appellant, has argued that the alleged confession was recorded in the Police Station in presence of the Police Officers, while the appellant was in the custody of the Police, therefore, it was not admissible against him. About last seen, she argued that Lachharam (PW-8) had stated that after bringing the deceased to his house, the appellant had gone to call the doctors and the deceased had died thereafter, therefore, this circumstance would not be incriminating. She also argued that there is no definite evidence regarding motive. However, even if it is held to be proved, that itself would not lead to conviction of the appellant. 3. On the other hand, Ms. Smita Ghai, learned Panel Lawyer appearing on behalf of the State, has opposed these arguments and supported the judgment passed by the Sessions Court. 4. We have heard counsel for the parties. 5. In Dhananjoy Chhatterjee Vs. State of W.B. (1994) 2 SCC 22, the Supreme Court held "In a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. Those circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not merely indignation of the court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof." 6. In Bodh Raj alias Bodha and others Vs. State of Jammu and Kashmir AIR 2002 SC 3164, the Supreme Court laid down that there is no doubt that conviction can be based solely on circumstantial evidence but the conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are: 1. the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may' be established; 2. the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; 3. the circumstances should be of a conclusive nature and tendency; 4. they should exclude every possible hypothesis except the one to be proved; and 5. there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 7. In Manjunath Chennabasapa Madalli Vs. State of Karnataka AIR 2007 SC 2080 , it was held vide para 11 as under: It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan ( AIR 1977 SC 1063 ); Eradu and Ors. v. State of Hyderabad ( AIR 1956 SC 316 ); Earabhadrappa v. State of Karnataka ( AIR 1983 SC 446 ); State of U.P. v. Sukhbasi and Ors. (See Hukam Singh v. State of Rajasthan ( AIR 1977 SC 1063 ); Eradu and Ors. v. State of Hyderabad ( AIR 1956 SC 316 ); Earabhadrappa v. State of Karnataka ( AIR 1983 SC 446 ); State of U.P. v. Sukhbasi and Ors. ( AIR 1985 SC 1224 ); Balwinder Singh v. State of Punjab ( AIR 1987 SC 350 ); Ashok Kumar Chatterjee v. State of M.P. ( AIR 1989 SC 1890 ). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab ( AIR 1954 SC 621 ), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt. 8. So far as circumstance of extra judicial confession is concerned, we find that the alleged confession was recorded in Ex.-P-7. According to the prosecution, this document was recorded by the Sarpanch in presence of two witnesses, namely, Kavilal (PW6) and Tejram (PW-30). The learned Sessions Judge, himself has recorded a finding vide para-14 that the said document was prepared in the Police Station, while the appellant was in the custody of the Police. 9. Kavilal (PW-6) has deposed in clear words that the appellant had made statement in the Police Station, which was recorded by Komal Prasad in presence of 3-4 persons. However, he very specifically mentioned that he does not know as to what statement was given by the appellant. He was standing at some distance. He simply admitted to put his signature in Ex.-P-7. 10. Tejram (PW-30) is another witness of the confession (Ex.-P-7). He clearly deposed that no such Panchnama (Ex.-P-7) was recorded by the Sarpanch in his presence. The said Panchnama (Ex.-P-7) was already prepared and it was put before him for his signature by the Police and he simply signed on the said document. At that time, the appellant was not present before him. He was put to lengthy cross-examination by the Public Prosecutor, but nothing material in this regard could be elicited. 11. The said Panchnama (Ex.-P-7) was already prepared and it was put before him for his signature by the Police and he simply signed on the said document. At that time, the appellant was not present before him. He was put to lengthy cross-examination by the Public Prosecutor, but nothing material in this regard could be elicited. 11. Kavilal (PW-6) in his cross-examination, has clearly admitted that the said confession (Ex.-P-7) was prepared at the instance of Daroga, who dictated in the Police Station, which was being reduced in writing by the Sarpanch. 12. Section 25 of the Evidence Act, 1872 makes it very clear that no confession made to a Police Officer, shall be proved as against a person accused of any offence. It is well settled principle of law that any confessional statement given by accused before Police is inadmissible in evidence and cannot be brought on record by the prosecution and is insufficient to convict the accused. 13. In the instant case, as we have already stated, the said confessional statement was recorded in presence of Police in the Police Station. It comes that the contents of confessional statement (Ex.-P-7) were dictated by the Police Officer himself, on which, the witnesses had signed. 14. The learned Sessions Judge has also recorded a finding that at the time of recording of confession, the appellant was already in the custody of the Police. Yet, it was held by the Sessions Judge that the said confession recorded vide Ex.-P-7 was admissible and was incriminating against the appellant. We are of the opinion that the learned Sessions Judge completely erred in holding the said confession as proved against the appellant and the same cannot be accepted. 15. The circumstance of 'last seen' was also not proved. It is not a case, in which, after seeing the deceased alive lastly in the company of the appellant, the dead body of the deceased was found. In the instant case, it comes in the evidence of Lachharam (PW-8) that the deceased was brought alive by the appellant and Kamta Prasad (Pahalwan), who dropped him in his house. Thereafter, the appellant went from the house of the deceased. He clearly deposed that at that time, the deceased was alive. Thus, in the said circumstance, the theory of last seen will not come into play. 16. Thereafter, the appellant went from the house of the deceased. He clearly deposed that at that time, the deceased was alive. Thus, in the said circumstance, the theory of last seen will not come into play. 16. That apart, it comes in the evidence of Ramkunwar (PW-10) and Salil Vishwas (PW-11) that on the fateful day, in the evening, the appellant had visited their places for taking the doctor to his village for treatment of the deceased. Ramkunwar (PW-10) is wife of Ghasiram, who was practicing as a doctor. The appellant came to her house and asked about her husband in the evening. Salil Vishwas (PW-11) was also practicing as a doctor in village Chandrapur. He also deposed in his evidence that on the fateful day, at about 8.00-8.30 pm, the appellant came to his place and said that the Patwari (deceased) was seriously ill, as he was suffering from high fever, he said that he was unconscious. The appellant requested him for a visit to the house of Patwari, but he did not go along with the appellant. The evidence of these two witnesses as also the evidence of Lachharam (PW-8) would show that when the appellant had left the house of the deceased, at that time, the deceased was alive and thus, the said circumstance was also not established against the appellant. 17. Four witnesses have been examined to prove the 'motive' set-forth by the prosecution. They are Dilip Kumar Ratre (PW-1), Prakash (PW-2), Tilbai (PW-3) and Gauribai (PW-4). According to them, the deceased had illicit relations with the wife of the appellant. 18. Dilip Kumar Ratre (PW-1) is Devar of Gauribai (PW-4). He deposed in his evidence that he was told by Gauribai (PW-4) about the illicit relations of the deceased with the wife of the appellant. 19. Prakash (PW-2) is son of the deceased. He did not depose about the alleged illicit relations in his examination-in-chief. On certain aspects, he was declared hostile and was permitted to be cross- examined by the Public Prosecutor. In para-7 of his cross-examination, he deposed that a day after the said incident, his mother had told him that his father (deceased) had illicit relations with the wife of the appellant. 20. Tilbai (PW-3) is aunt of Prakash (PW-2). On certain aspects, he was declared hostile and was permitted to be cross- examined by the Public Prosecutor. In para-7 of his cross-examination, he deposed that a day after the said incident, his mother had told him that his father (deceased) had illicit relations with the wife of the appellant. 20. Tilbai (PW-3) is aunt of Prakash (PW-2). She deposed in para-2 of her evidence that when Gauribai (PW-4, wife of the deceased) had returned from Hardi, she had told her that her husband, i.e. deceased, used to purchase sari, etc., for the wife of the appellant. Except the above, she deposed nothing in this regard. 21. Gauribai (PW-4) is wife of the deceased. She deposed in para-3 of her examination-in-chief that when deceased was alive, she had gone to live with him in village Hardi. She had resided there for 15 days. Her husband had never told about his relations with the wife of the appellant. However, she came to know that he had illicit relations with the wife of the appellant. She later on, added that when she was residing in village Hardi, she herself could gather about it on the conduct of the wife of the appellant, however, she had never seen anything relating to it. She farther added that even after assuming so, she did not ask about it to the deceased. This is the only evidence regarding the motive alleged by the prosecution. 22. In Dharnidhar Vs. State of Uttar Pradesh and Others & other connected appeals (2010) 7 SCC 759 , the Supreme Court, deliberating on direct and circumstantial evidence, held in para-19 as under:- However, in cases which are entirely or mainly based upon and rest on circumstantial evidence, motive can have greater relevancy or significance {Bablu Lodhi Vs. State of U.P., (1987) 2 SCC 352 and Prem Kumar Vs. State of Bihar, (1995) 3 SCC 228 }. But it is equally true that when positive evidence against the accused is clear in relation to the offence, motive is not of much importance. Mere absence of motive, even if assumed, will not per se entitle the accused to acquittal, if otherwise, the commission of the crime is proved by cogent and reliable evidence {State of Punjab Vs. Kuljit Singh, (2003) 2 RCR (Cri) 629 (P & H)}. 23. The instant case was mainly based on circumstantial evidence. Thus, the motive would assume importance. Mere absence of motive, even if assumed, will not per se entitle the accused to acquittal, if otherwise, the commission of the crime is proved by cogent and reliable evidence {State of Punjab Vs. Kuljit Singh, (2003) 2 RCR (Cri) 629 (P & H)}. 23. The instant case was mainly based on circumstantial evidence. Thus, the motive would assume importance. We have gone through the entire evidence relating to motive, but it does not appear to be sufficient. The evidence of Dilip Kumar Ratre (PW-1), Prakash (PW-2) and Tilbai (PW-3) would be hearsay evidence and the evidence of Gauribai (PW-4) is not definite. Even if it is held to be proved, it simply gives an impression, which creates suspicion of alleged illicit relations of the deceased with the wife of the appellant. 24. In Ramesh Baburao Devaskar and others Vs. State of Maharashtra (2007) 13 SCC 501 , it was held that suspicion against accused on the basis of 'motive' to commit the crime cannot by itself lead to his conviction. Proof of motive by itself may not be a ground to hold the accused guilty. Similar view was taken by the Supreme Court in Sampath Kumar Vs. Inspector of Police, Krishnagiri AIR 2012 SC 1249 , that presence of the strong 'motive' by itself would not be enough to support a conviction especially in a case where the sentence can be capital punishment. Reference was made to the case of N.J. Suraj Vs. State represented by Inspector of Police (2004) 11 SCC 346 . Reference was also made to the decision of Sunil Rai alias Paua and Ors. Vs. Union Territory, Chandigarh AIR 2011 SC 2545 , in which, it was held that "In any event, motive alone can hardly be a ground for conviction. On the materials on record, there may be some suspicion against the accused but as is often said suspicion, howsoever, strong cannot take the place of proof". 25. Therefore, even if it is held that the deceased had developed illicit relations with the wife of the appellant and there may be a 'motive' for the appellant to commit murder of the deceased, in absence of any other circumstance, that by itself would not be sufficient to hold him guilty of an offence like murder. 26. 25. Therefore, even if it is held that the deceased had developed illicit relations with the wife of the appellant and there may be a 'motive' for the appellant to commit murder of the deceased, in absence of any other circumstance, that by itself would not be sufficient to hold him guilty of an offence like murder. 26. In a case based on circumstantial evidence, the basic principles are that the circumstances set-forth by the prosecution should be fully established. The circumstances so established should be of conclusive nature and tendency and none of the circumstances should be capable of being explained and the chain of circumstantial evidence also must be complete. 27. In the instant case, the circumstances set-forth by the prosecution were not fully established; they were not of conclusive nature and tendency; almost all the circumstances were capable of being explained and the chain of circumstantial evidence was also not complete. 28. We are of the view that the learned Sessions Judge has erred in law in resting the conviction of the appellant on the above set of circumstantial evidence and the same deserves to be set-aside. Accordingly, the appeal is allowed. The conviction and sentences awarded to the appellant under Section 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 bond shall continue for a period of six months in view of Section 437-A Cr.P.C.