1 HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR Criminal Appeal No.726/2007 [ENTITY] V. The [ENTITY] For the Appellant: Smt. [ENTITY], For the respondent: Shri [ENTITY], Government Advocate PRESENT: HON'BLE SHRI JUSTICE H.P. SINGH HON'BLE SHRI JUSTICE RAJEEV KUMAR DUBEY JUDGMENT
(10/10/2017) As per :- [ENTITY], J This criminal appeal has been filed against the judgment dated 13/11/2006 passed by Session Judge, Sidhi in [CASE NUMBER], whereby learned Session Judge found the appellant guilty for the offences punishable under [SECTION] of the [ACT] and sentenced him to life imprisonment and fine of Rs.5,00/-, and in default of payment of fine amount, further R.I. for three months.
2. Brief facts of the case are that on 05/06/06/ at 10:00 pm deceased [ENTITY], a resident of village Katheri, District Sidhi came back home after labour work and slept on the cot in the courtyard of the house after having a meal. His wife [ENTITY] (PW/2) was also sleeping in the house. When next day at 4:00 am she got up and went to the courtyard where [ENTITY] was sleeping, she saw that the blood spread beneath the cot on which [ENTITY] was lying. She also saw one injury on his neck, from where blood was oozing out and he was dead. On listening her crying, her sons [ENTITY] (PW/3), [ENTITY] (PW/4), [ENTITY] (PW/1), her daughter-in-laws [ENTITY] and [ENTITY] came there and they also saw the dead body of [ENTITY] lying on the Cot. Thereafter, [ENTITY] (PW/1) went to Police [ENTITY], P.S.Sidhi and lodged the report, (Ex.P/2) which was written by [ENTITY] (PW/9) and sent it for original registration to [ENTITY], District Sidhi. At [ENTITY], on that Head Constable [ENTITY] registered [CASE NUMBER] (Ex.P/31) for the offence punishable under [SECTION] of the [ACT]. [ENTITY] (PW/9) investigated the matter. During investigation on 06/05/06 he went to the spot and prepared spot map (Ex.P/3) on identification of [ENTITY] (PW/1) and also seized sample of blood stain and simple soil (Article A and B) from the spot , one blood stained shawl (Article C) lying on the dead body of deceased and prepared seizure memo (Ex.P/26). He also prepared inquest report (Ex.P/5) of the dead body of deceased [ENTITY] in presence of Panch witnesses. [ENTITY] (PW/7) took photos of the scene of crime and dead body of [ENTITY]. [ENTITY] (PW/9) seized those photographs and its negatives (Ex.P/11 to Ex.P/19) from the possession of [ENTITY] (PW/7) and prepared seizure memo (Ex.P/9). Thereafter, he sent the dead body of [ENTITY] for postmortem along with request letter (Ex.P/21) through [ENTITY] (PW/8) at Primary Health Center, Niwa where Dr. [ENTITY] (PW/11), conducted autopsy of the dead body of deceased [ENTITY] and gave Postmortem report (Ex.P/21A). He also seized blood stained vest of deceased [ENTITY] from his dead body and sent it to Police Station through Constable [ENTITY]), in a sealed packet alongwith seal impression. [ENTITY] (PW/9) seized that packet and prepared seizure memo (Ex.P/24). On 08/05/2006 appellant came to the Police Chowki, Niwas along with blood stained [ENTITY] (Artical D) and confessed before [ENTITY] (PW/9) that he had murdered [ENTITY]. On that SN. [ENTITY] (PW/9) recorded his confessional statement (Ex.P/6) before panch witness and also seized that [ENTITY] from his possession and prepared seizure memo (Ex.P/7), arrested him and prepared arrest memo (Ex.P/1) and sent the information (Ex.P/27) of his arrest to [ENTITY], the then Up- sarpanch and thereafter sent the seized [ENTITY] to Dr. [ENTITY] (PW/11) alongwith query letter Ex.P/28-A. After examining that [ENTITY] Dr. [ENTITY] (PW/11) gave the report that the injuries sustained by deceased could be caused by that [ENTITY]. [ENTITY] (PW/9) also recorded the statement of [ENTITY] (PW/1), [ENTITY] (PW/2), [ENTITY] (PW/3) and [ENTITY] (PW/4). [ENTITY], [ENTITY], [ENTITY]), Smt. [ENTITY], [ENTITY], [ENTITY] and [ENTITY] (PW/6) and sent all the seized articles i.e. sample of blood stain and simple soil, [ENTITY] and blood stained clothes to Forensic Science Laboratory, Sagar alongwith letter (Ex.P/30). From where report (Ex.P/34A) was received. After completion of investigation, Police filed charge-sheet against the appellant before Judicial Magistrate, First Class, Sidhi, who committed the case to the court of Sessions. On that [CASE NUMBER] was registered.
3. Learned Sessions Judge framed charge against the applicant for the offence punishable under [SECTION] of the [ACT]. Prosecution produced as many as 11 witnesses to prove his case. The applicant took the defence that he is innocent and has falsely been implicated in the case. However, learned Sessions Judge after trial found the appellant guilty for the offence punishable under [SECTION] of the [ACT] and sentenced him for life imprisonment and fine of Rs.5,00/- and in default of payment of fine amount further R.I. for three months. Being aggrieved by the impugned judgment, appellant has filed this Criminal Appeal.
4. Learned counsel for the appellant submitted that there is no eyewitness of the incident. The prosecution case is solely based on circumstantial evidence. It is settled that when there is no direct evidence of the commission of offences, the case rests entirely on circumstantial evidence, all the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established. While in this case no chain of circumstances has been proved by the prosecution beyond reasonable doubt against appellant. The prosecution produced only two circumstances against the appellant, the confession of guilt by the appellant before [ENTITY] (PW/6) and [ENTITY] (PW/9) and the seizure of [ENTITY] from the possession of appellant. But in statement of [ENTITY] (PW/6) there are many contradictions, so his statement is not believable. Although, SN. [ENTITY] (PW/9) also deposed that the appellant himself came to [ENTITY] and admitted his guilt, but the confession before the Police Office is not admissible in evidence. In the FSL report (Ex P/34A) it clearly mentioned that no blood was found on the seized [ENTITY]. So only on the seizure of [ENTITY] which is commonly found in the house of villagers no adverse inference can be drawn against appellant. Learned trial Court without appreciating these fact wrongly found appellant guilty for the offence.
5. On the other hand learned counsel appearing for the respondent/State submitted that there is ample evidence on record to prove the guilt of the appellant. Learned trial Court did not commit any mistake in finding the appellant guilty for the aforesaid offence.
6. Point of determination in this appeal is whether the conviction and sentence awarded by the trial Court against appellant under [SECTION] of [ACT] are liable to be set aside for the reasons stated in the memo of appeal and raised during argument.
7. On the point that [ENTITY] died in the intervening night of 05-06/05/2006 between 10:00 PM to 04:00 AM at his house situated at village Katheri and his death was homicidal which amounts to murder, [ENTITY] (PW/2) deposed that on the date of incident at 10:00 in the night, her husband [ENTITY] came back home after labour work and slept on the cot in the courtyard of the house after having a meal. She also slept in the house. When she got up at 4:00 in the morning and went where [ENTITY] was sleeping, she saw that the blood was spread beneath the cot on which [ENTITY] was lying. She also saw one injury on his neck, from where blood was oozing out and he was dead. Her statement is also corroborated by the statements of her son [ENTITY] (PW/3), [ENTITY] (PW/4), [ENTITY] (PW/1) and [ENTITY] (PW/5). They also deposed that when they reached the spot, they saw [ENTITY] lying dead on the cot and there was an injury on his neck. On that point prosecution story is also supported from the statement of [ENTITY] (PW/9) who deposed that on 06/05/06 he was posted as an ASI, Police Chowki at Nivas. [ENTITY] came to Police Chowki and informed that some unknown person murdered his Uncle [ENTITY] and his dead body was lying in the house. On that he wrote FIR (Ex.P/2) and sent it for original registration and thereafter went to the spot and prepared spot map (Ex.P/3) on information of [ENTITY] (PW/1) and also seized sample of blood stain and simple soil (Article A and B) from the spot and a blood stained shawl (Article C) which was lying on the dead body of deceased and prepared seizure memo (Ex.P/26). He also prepared inquest memo (Ex.P/5) of the dead body of deceased [ENTITY] in presence of witnesses and also got the photographs Ex. P/12 to Ex.P/18 of the dead body of [ENTITY] clicked, seized them and prepared seizure memo (Ex.P/9) and also sent the dead body of [ENTITY] for postmortem along with the letter (Ex.P/21).
8. Dr [ENTITY] (PW/11) who conducted the postmortem of dead body of deceased [ENTITY] deposed that on 06/05/06 he was posted as Senior Medical Officer at Primary Community Health Centre, Niwas. On that day he conducted postmortem of dead body of [ENTITY] and found following external injuries on his body :-
1. One stab wound (incised wound) size 10 x 4 left side of his neck.
2. His mandible and muscles of right side of neck was cut.
9. He further deposed that all injuries are ante mortem and caused by hard and sharp object. In his opinion, [ENTITY] had died due to shock which was caused due to excessive haemorrhage and the duration of death was within 24 to 48 hours from the postmortem and injury was homicidal in nature. In this regard, his statement is also corroborated by postmortem report (Ex.P-21A).
10. There is no significant contradiction in the statements of the aforesaid witnesses on that point. From the statements of these witnesses, it is clearly proved that [ENTITY] died in the intervening night of 05-06/05/2006 between 10:00 PM to 04:00 AM at his house situated at village Katheri due to injuries sustained by him in the neck which were caused by a hard and sharp object and his death was homicidal which amounts to murder.
11. But, as regards the fact whether appellant murdered [ENTITY]. Admittedly, there is no eye witness or direct evidence in the case, however the trial Court has held that the prosecution has proved the guilt of the appellant beyond reasonable doubt on the basis of circumstantial evidence on record and the extra- judicial confession said to have been made by the appellant to [ENTITY] (PW/6).
12. As far as circumstantial evidence is concerned, the normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence, as held by the Hon'ble Apex Court in the matter of [ENTITY] vs. [PRECEDENT]. The same principles were reiterated in [PRECEDENT], [PRECEDENT] and [PRECEDENT].
13. Regarding extra- judicial confession Hon'ble Apex Court in the case of [PRECEDENT] after considering his earlier decisions has laid down that:-
(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence. (iv) An extra-judicial confession attains greater credibility and
evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
(vi) Such statement essentially has to be proved like any other fact and in accordance with law".
14. Hon'ble Apex Court in the case of [PRECEDENT] again held that extra-judicial confession can be relied upon only if the same is voluntary and true and made in a fit state of mind. The value of the evidence as to the confession like any other evidence depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence.
15. In the light of above pronouncement of the Hon'ble Apex Court if we examine the evidence on record, prosecution produced following evidence against appellant :-
(i) Confession of appellant before [ENTITY] (PW/6) and [ENTITY] (PW/9) that he murdered [ENTITY].
(ii) Seizure of one [ENTITY] from the possession of appellant. 16. As the Court below has based its conclusion on the
statement of [ENTITY] (PW/6) and has held the appellant guilty mainly on the basis of his evidence, it would be appropriate to examine his evidence in detail.
17. Although [ENTITY] (PW/6) in his examination-in-chief deposed that one morning when he was resting in his house, appellant came and demanded Rs.5/-, so he asked him that where he would go. On that, appellant told that he had murdered [ENTITY] resident of village Katheri and was going to Police Chowki, Niwas and since he had no money he did not give it to the appellant. Meanwhile, a bus came there, applicant stopped and boarded it and went by it .
18. But, This witness in his cross-examination stated that applicant had never come to him for demanding money before that incident. He did not even inform the family members of [ENTITY] when applicant had told him that he had murdered [ENTITY], which seems quite unnatural. He did not state that applicant had a [ENTITY], when he had come to him, while [ENTITY] deposed that appellant came at Police Chowki, Niwas along with a [ENTITY]. Police recorded his statement after 12 days of the incident. Although, [ENTITY] (PW/6) deposed in his cross-examination that he went to the Police Choki to inform that fact to Police on the same day. Police met him on the way and he informed the Police regarding confession of appellant. But [ENTITY], A.S.I. (PW-19) in his cross-
examination clearly denied from the fact of having met [ENTITY] (PW/6) on 08/05/06 and still not recording his statement on that day and clearly deposed that he recorded his statement for the first time on 21/05/06. So the statement of [ENTITY] (PW/6) that he had informed the police regarding confession of appellant on the same day also becomes false. In these circumstances his statement becomes doubtful which can not be relied upon. In the considered opinion of this Court, learned Trial Court committed mistake in believing his statement.
19. Although, [ENTITY], A.S.I. (PW-19) also deposed that appellant came to Police Chowki, Niwas on 08/05/06 along with a blood stained tangi and confessed in the presence of witnesses that he had murdered [ENTITY], on which he recorded his confessional statement (Ex.P/6), but according to provisions of [SECTION] of the [ACT] the confession of accused before the Police officer is not admissible in evidence.
20. As far as circumstantial evidence is concerned, [ENTITY] A.S.I.(PW/9) deposed that appellant came to Police Chowki, Niwas on 08/05/06 with a blood stained [ENTITY]. He seized that [ENTITY] from his possession and prepared seizure memo (Ex./P.7). On that point his statement is also corroborated by the statement of [ENTITY] (PW/3) son of deceased [ENTITY]. [ENTITY] (PW/9) further deposed that he sent that [ENTITY] to Dr [ENTITY] (PW/11) for examination along with letter (Ex.P/28) and Dr. [ENTITY] deposed that he examined that [ENTITY] and gave the report (Ex.P/28A) to the effect that the injuries sustained by [ENTITY] could be caused by that [ENTITY] and blood stains were also present on that [ENTITY] at the time of examination. But in the report (Ex.P/28A) given by the Dr [ENTITY] (PW/11) it is not mentioned that he saw blood stains on seized [ENTITY]. In the FSL report (Ex.P/34A) it is clearly mentioned that no blood stains were found on the [ENTITY] (Article-D). So the statement of [ENTITY] (PW/3), [ENTITY] A.S.I. (PW/9) and Dr [ENTITY] (PW/11) that they saw blood stains on sized [ENTITY] becomes doubtful. Even otherwise there is no evidence on record that the blood found on the [ENTITY] was human blood and that its blood group matched with the blood group of deceased [ENTITY].
21. Hon'ble Apex Court in the case of [PRECEDENT] held that the evidence of recovery of human blood-stained clothes from accused cannot be regarded as a conclusive piece of evidence. But it is certainly a piece of evidence which goes to support the other evidence about the guilt of accused. In the case of [PRECEDENT] Hon'ble Apex Court also held circumstantial evidence recovery of blood-stained clothes from accused - report of sociologist that the clothes were stained with human blood but blood group not indicated- evidence of blood group is only conclusive to connect bloodstains with accused no reliance could be placed on the circumstance.
22. Even in the case seized [ENTITY] was not produced before Court during trial of the case. Appellant's motive behind the murder of [ENTITY] could also not be proved by the prosecution. On the contrary [ENTITY] (PW/4) son of the deceased admitted in his cross-
examination that there is no animosity between appellant and his father.
So, in the considered opinion of this Court only on the circumstance that one [ENTITY] was seized from the possession of appellant, which commonly found in the house of villagers it cannot be assumed that appellant murdered deceased [ENTITY].
23. From the above discussion, in the considered opinion of this Court from the evidence produced by the prosecution against the appellant it cannot be assumed that appellant murdered [ENTITY]. The trial Court wrongly found appellant guilty causing the murder of [ENTITY].
24. Hence appeal is allowed and the appellant is acquitted from the charge under [SECTION] of the [ACT].
25. Appellant is in jail. He be released forthwith, if not required in any other case.
26. With the aforesaid observations and directions the appeal is disposed of.
([ENTITY]) ([ENTITY]) JUDGE JUDGE as/