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2015 DIGILAW 41 (CHH)

Savitri Bai v. State of Madhya Pradesh

2015-02-02

NAVIN SINHA, P.SAM KOSHY

body2015
Judgment Navin Sinha, J. 1. The present appeal arises from judgment dated 22.02.1999 of the First Additional Sessions Judge, Baloda Bazar in Sessions Trial No. 61 of 1998, convicting the Appellant under Section 302/34 IPC to life imprisonment and fine of Rs. 5,000, in the event of failure to pay which she was required to undergo one year further rigorous imprisonment. Learned Counsel for the Appellant submitted that Merg, Exhibit P-1 was lodged on 4.11.1997 by Thirwar Das, PW-1 on information given to him by the Appellant that her husband was lying dead at the door of the house. FIR was registered on the basis of the same by ASI B.L. Sahu, PW-13 marked Exhibit P-17 on 8.11.1997. The post mortem was conducted on 6.11.1997 by Dr. F.R. Nirala, PW-9 and the report Exhibit P-12 revealed three injuries on the person of the deceased; i) lacerated wound 1 1/2" x 1/2 c.m. x 1/2. c.m. over right cheek ii) Compound committed fracture of zygomatic bone iii) Contusion 2" x 1/2" over chest left side below nipple, internally fracture of 5th and 6th rib and Echymosis blood clot opining that the cause of death was due to excessive blood loss. 2. Learned Counsel for the appellant submitted that there is no eye witness to the occurrence and the entire case of the prosecution is based on the alleged extra-judicial confession of co-accused along with confession of the co-accused under Section 27 of the Evidence Act leading to recovery of Lungi and grinding stone alleged to have been used for assault. The forensic report with regard to both is negative with no presence of blood. It leaves only the extra-judicial confession of the co-accused only. There is no material whatsoever against the appellant to convict her on the basis of any circumstantial evidence even. The co-accused never made an extra judicial confession. What is alleged to be a confession where statements made to the police when it came to the village, in presence of the villagers including PW-3 Ayodhya Prasad and PW-8 Punitram. The motive alleged against the Appellant is her extra marital affair with the co-accused. PW-2 Bhagchand has deposed that the deceased never suspected the infidelity of his wife and never objected to the co-accused coming to his house as he was a regular visitor. The motive alleged against the Appellant is her extra marital affair with the co-accused. PW-2 Bhagchand has deposed that the deceased never suspected the infidelity of his wife and never objected to the co-accused coming to his house as he was a regular visitor. There was no material to sustain the conviction of the appellant or even ascribe any motive to her. 3. Counsel for the State relied upon the extra judicial confession made by the co-accused that they had intended to kill the deceased as the Appellant had an extra marital affair with the co-accused and that the deceased husband was an impediment in the same. There existed a motive for the Appellant to kill the deceased in association with her paramour which was an important consideration in a case of circumstantial evidence. 4. We have considered the submissions on behalf of the parties and perused the evidence on record also. There is no eye witness to the occurrence and the case against the Appellant is based on circumstantial evidence coupled with the extra judicial confession of the co-accused. In case of circumstantial evidence, there must be some tangible material linked with a chain of circumstances and one circumstance must be intertwined with the other in a continuous link compatible only with the guilt of the accused pointing inescapably to the same. There must be no other hypothesis possible compatible with the innocence of the accused. In the latter case, the benefit of doubt must be given to the accused. In the present case the only circumstantial evidence emerging against the Appellant is the motive because of her extra marital affair with the co-accused. We find it difficult to accept the existence of motive especially when prosecution witnesses have themselves stated that the deceased never objected to the co-accused visiting his house and even staying at times. If the co-accused had easy access to the house of the Appellant with no objection being raised by the deceased who was her husband, we find it difficult to hold that motive was an incriminating circumstance against the Appellant. In Sunil Clifford Daniel Vs. State of Punjab, (2012) 11 SCC 205 it was observed as follows:- "33. If the co-accused had easy access to the house of the Appellant with no objection being raised by the deceased who was her husband, we find it difficult to hold that motive was an incriminating circumstance against the Appellant. In Sunil Clifford Daniel Vs. State of Punjab, (2012) 11 SCC 205 it was observed as follows:- "33. In a case of circumstantial evidence, motive assumes great significance and importance, for the reason that the absence of motive would put the court on its guard and cause it to scrutinise each piece of evidence very closely in order to ensure that suspicion, emotion or conjecture do not take the place of proof." 5. That motive alone could not be sufficient to convict in a case of circumstantial evidence came to be considered in Sampath Kumar Vs. Inspector of Police, (2012) 4 SCC 124 observing as follows:- "31.......Yet even assuming that the appellant Velu had not reconciled to the idea of Usha getting married to the deceased Senthil, all that can be said was that the appellant Velu had a motive for physically harming the deceased. That may be an important circumstance in a case based on circumstantial evidence but cannot take the place of conclusive proof that the person concerned was the author of the crime. One could even say that the presence of motive in the facts and circumstances of the case creates a strong suspicion against the appellant but suspicion, howsoever strong, also cannot be a substitute for proof of the guilt of the accused beyond reasonable doubt." 6. An extra-judicial confession made voluntarily without any coercion, fear or duress, inspiring confidence can also be the basis of conviction. But it is a weak piece of evidence and in appropriate cases may need corroboration from other facts and circumstances. But in the present case, we find that there is no extra-judicial confession made by the co-accused at all. In order to be a valid extra-judicial confession it must be made voluntarily without any coercion and undue influence. The evidence of PW-2 Bhagchand establishes very clearly that no voluntary confession was made by the co-accused but he is alleged to have given certain replies in response to the queries made from him. It cannot be equated and put at par with a voluntary extra-judicial confession. The evidence of PW-2 Bhagchand establishes very clearly that no voluntary confession was made by the co-accused but he is alleged to have given certain replies in response to the queries made from him. It cannot be equated and put at par with a voluntary extra-judicial confession. Further PW-2 in his cross-examination acknowledged that even this statement of the co-accused was not made to him but to one Santram who has not been examined. Likewise, PW-3 Ayodhya Prasad also acknowledged that the disclosures were made by the co-accused to the Police in presence of villagers when it came to inquire. It raises a serious and grave doubt whether any statement was made by the co-accused to villagers voluntarily and independently or it was made to the Police in presence of the villagers. In the latter case it is not admissible in evidence. Similarly PW-8 Punitram stated that Lungi of the co-accused and also grinding stone were seized on the confession of the co-accused but the FSL report Exhibit P-20 has not confirmed the presence of blood on either of them. Reliance may appropriately be placed on Kishore Chand Vs. State of H.P., (1991) 1 SCC 286 observing as follows:- "7........The next piece of evidence is the alleged extra-judicial confession made by the appellant to PW 10. An unambiguous extra-judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of its falsity. But in the process of the proof of the alleged confession the court has to be satisfied that it is a voluntary one and does not appear to be the result of inducement, threat or promise envisaged under Section 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent Sections 25 and 26 of the Evidence Act. Therefore, the court has to look into the surrounding circumstances and to find whether the extra-judicial confession is not inspired by any improper or collateral consideration or circumvention of the law suggesting that it may not be true one. For this purpose the court must scrutinise all the relevant facts such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made and finally the actual words used by the accused. For this purpose the court must scrutinise all the relevant facts such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made and finally the actual words used by the accused. Extra-judicial confession if found to be voluntary, can be relied upon by the court along with other evidence on record. Therefore, even the extrajudicial confession will also have to be proved like any other fact. The value of the evidence as to the confession depends upon the veracity of the witness to whom it is made and the circumstances in which it came to be made and the actual words used by the accused." 7. There appears to have been no motive for the Appellant to kill the deceased who was her husband. No evidence has come of an amorous relationship between her and the co-accused except a mere suggestion with regard to the same. According to PW-2 the deceased had no objection to the co-accused visiting their house regularly and never suspected the fidelity of his wife. PW-3 has further stated that it was the appellant who herself went to the Kotwar and the villagers crying that her husband had been done away with. We further find that in the alleged confession attributed to the co-accused he had not ascribed any role to the Appellant much less is there any corroborative evidence in support of the same. It has come in the evidence of PW-2 that it was co-villager Babulal who had spread a canard in the village of the co-accused having illicit relations with the Appellant. The possibility that because of this general rumour having been spread, another villager having been peeved with the conduct of the deceased in not protesting may have vented his ire against him. If the deceased was not objecting to the co-accused visiting his house regularly, eating and even sleeping there it is difficult to accept that the Appellant had any occasion to team up with the co-accused for doing away with the deceased. 8. We are unable to sustain the conviction of the Appellant which is set aside. The Appellant is set at liberty subject to the conditions in Section 437A Cr.P.C. The appeal is allowed.