HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hon'ble Shri Justice Sunil Kumar Sinha and Hon'ble Shri Justice Radhe Shyam Sharma Criminal ADpeal No.966 of 1995 Pammi alias Pushpa versus State of Madhya Pradesh (now State of Chhattisgarh) JUDGMENT FOR CONSIDERATION Sd/- R.S. Sharma Judge Hon'ble Shri Sunil Kumar Sinha. J.: ^cyni^- Sd/- Sunil Kumar Sinha Judge Postfor *) -08-2011 ^( Sd/- R.S. Sharma Judge i \\ HIGH COURT OF CHHATTISGARHJ^T BILASPUR D.B.: Hon'ble Shri Justice Sunil Kumar Sinha and Hon'ble Shri Justice Radhe Shvam Sharma Criminal Appeal No.966 of 1995 Appellant versus Respondent Pammi alias Pushpa, wife of Ravindra Choubey, aged about 22 years, resident of Pandariya, Police Station Pandariya, District Bilaspur (Now District Kabirdham/Kawardha) (C.G.) State of Madhya Pradesh (now State of Chhattisgarh) Present: Shri Abhay Tiwari, counsel for the appellant. Shri Ashish Shukla, Government Advocate for the State/respondent. Criminal Appeal under Section 374(2) of the Code of Criminal Procedure JUDGMENT (Delivered on 2n<t August, 2011) Per Radhe Shvam Sharma, J.: This appeal is directed against the judgment dated 5-4-1995 passed by 4th Additional Session Judge, Bilaspur in Session Trial No. 112/93. By the impugned judgment, appellant Pammi alias Pushpa has been convicted under Sections 302 and 201 of the Indian Penal Code and sentenced to undergo imprisonment for life and rigorous imprisonment for four years. 2. Case of the prosecution, in brief, is as under: Deceased Nainabai was mother of Ravindra Choubey (PW-1) and Arvind Choubey (PW-2) and mother-in-law of the appellant. They were residing together in a house at Pandariya. On 15-12- ,^^.^^ \ 1992, some altercation took place between the deceased;and the appellant. Arvind Choubey (PW-2) gotthe matter compromisedand moved out of the house. Thereafter, again an altercation took place between the deceased and the appellant. On this account, the appellant assaulted the deceased with a Kudali (Pick-Axe) and caused injuries on the head and left ear. The deceased succumbed to the injuries. Dragging the dead body pf the deceased, the appellant hide the dead body in a Ghuruva (a pit where waste material is dumped). When Arvind Choubey (PW-2) came back to the house and enquired about his mother, the appellant told him that the deceased had gone somewhere along with a neighbourer woman. On 16-12-1992, Arvind Choubey (PW-2) found the dead body of his mother in the Ghuruva covered by a jute-bag and other materials. He informed his brother Ravindra Choubey (PW-1) about the occurrence. Ravindra Choubey (PW-1) asked the appellant about death of his mother. Initially, the appellant denied having any knowledge about the incident, but, later on, she confessed that on account of the altercation, which took place between them earlier, she had assaulted the deceased and the deceased succumbed to the injuries. Ravindra Choubey (PW-1) lodged First Information Report (Ex.P-1). Merg Intimation (Ex.P-2) was also lodged. Investigating Officer reached the place of occurrence, gave notice (Ex. P-3) to Panchas and prepared Inquest (Ex. P-4) on the body of the deceased. Dead body of the deceased was sent for post mortem to Primary Health Centre, Pandariya, where post mortem examination was conducted by Dr. M.K.Rai (PW-4), who prepared a report (Ex.P- f f^^7^^ 1 [ '•^SeS^ j v^'' . 3 12). The doctor noticed several lacerated injuries on the skull, temporal, left parietal and occipital regions of the body of the deceased. He opined that cause of death was coma due to head injuries and the death was homicidal in nature. In further investigation, memorandum statement of the appellant was recorded on 16-12-1992 vide Ex.P-6 and at her instance, a Kudali (Pick-Axe) was seized vide Ex. P-7. An other memorandum statement ofthe appellant was recorded on the same dayvide Ex.P-8 and at her instance, a Saree was seized vide Ex.P- 9. Site-Plan (Ex.P-16) was prepared by Patwari Ramji Yadav (PW- 6). The seized Saree and Kudali were sent for examination to Dr. M.K.Rai, who gave reports Ex.P-14A and P-15A. The doctor found that the Kudali and the Saree were stained with blood like substance. 3. After completion of the investigation, a charge-sheet was filed in the Court of Judicial Magistrate First Class, Mungeli, who, in turn, committed the case to the Court of Session, from where it was received on transfer by 'the 4th Additional Session Judge, Bilaspur, who conducted the trial and convicted and sentenced the appellant as mentioned above. 4. Shri Abhay Tiwari, learned counsel for the appellant argued that the finding of guilt recorded on the evidence of last seen together is unreasonable. There were other inmates in the house of the appellant. The offence is not proved beyond reasonable doubt. Even if the circumstances are taken on their face value, it cannot be ..„.„-.. ^ i.\.,.,,.^-^"^-^ i:'ss"^9, %... '^^^''^ ^:^^^" said that it was the appellant who committed murder of the deceased. He further argued that the evidence relating to extra- judicial confession is shaky. The dead body was not recovered at the instance of the appellant. The relation between the appellant and Arvind Choubey (PW-2) was not cordial, therefore, the evidence relating to extra-judicial confession is not reliable. He further argued that it is well settled that a strong suspicion is no substitute for proof. Therefore, the finding recorded by the learned Additional Session Judge is not sustainable and the appellant deserves to be acquitted. 5. On the other hand, Shri Ashish Shukla, learned Government Advocate for the State/respondent opposed the arguments and supported the impugned judgment passed by the learned Additional Session Judge. 6. We have heard learned counsel for the parties at length and have also perused the record of the session case. Admittedly, there is no eye-witness to the incident and the case of the prosecution is based on the circumstantial evidence. Main circumstances, which the learned Additional Session Judge appears to have taken note of, are thus: (1) This is a house-murder, and at the time of occurrence, only the appellant and the deceased were present in the house; (2) Conduct of the appellant in giving false information about going out of the deceased to Arvind Choubey (PW-2); and ^ (3) Extra-judicial confession of the appellanf regarding commission of murder ofthe deceased. 7. It is well settled that with a view to base conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence. The circumstances, from which conclusion of guilt is to be drawn, should be fully established. 8. In Varun Chaudhary vs. State of Rajasthan, AIR 2011 SC 72, the Hon'ble Supreme Court has held thus: "24. It is a settled legal position that in case of circumstantial evidence, there must be a complete chain of evidence which would lead to a conclusion that the accused was the only person, who could have committed the offence and none else. In the instant case, there is nothing to show that the accused had committed the offence and on the basis of the aforestated material, in our opinion, it would be dangerous to conyict the accused. In the case of G. Parashwanath v. State of Karnataka, (2010)8 SCC 593 : (AIR 2010 SC 2914), para 24, it has been stated that "in deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved ......... There must ^•t* /^^\ f€f^\ •j ^iis^ N -a^m^ j ^ ^. 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, where various links in chain are in themselves complete, then the false plea or falsedefence may be called into aid only to lend assurance to the court"." ^ - 9. Now, we shall deal with the circumstantial evidence led by the prosecution. Mlotive is important in cases wherein prosecution is based on circumstantial evidence. In the instant case, whether the prosecution has been able to prove motive to commit murder of the deceased? The prosecution has led evidence to the effect that an altercation had taken place between the appellant and the deceased on account of preparing tea and wearing of socks by the children of the appellant. We do not think that merely because some petty altercation took place between the appellant and the deceased on account of the aforesaid reasons, the appellant would commit murder of the deceased. We, therefore, reject the theory that there was any motive, muchless any strong motive, on the part of the appellant so as to commit murder of the deceased. 10. So far as the questions regarding the house-murder and that too at the_time of occurrence, only the appellant and the deceased were present in the house and conduct of the appellant are concerned, it is not disputed that on the fateful day, the appellant and the deceased were residing together in a house. It is also not disputed that death of the deceased was homicidal in nature. Arvind Choubey (PW-2) has deposed in paragraph 3 that at about 12 Noon, ••'^- ^ ..?' ^^;... ;;''? .^' A - V. ^ ^. '^ he, his mother (the deceased) and the appellant had taken lunch together and thereafter he had moved out of the house at about 2:30 P.M. He returned to house at about 5 P.M. Heenquired about his mother (the deceased) from the appellant. The appellant told him that the deceased had gone on pilgrimage along with a woman. In the next morning, when he went to bathroom to wash his face and hands, he saw dead body of his mother (the deceased). He enquired from his sister-in-law (the appellant) about dead body of his mother, but the appellant did not tell anything to him. Thereafter, he closed the door from outside and went out to tell the incident to his brother Ravindra Choubey (PW-1). 11. The conduct of Arvind Choubey (PW-2) appears to be unnatural. After seeing dead body of his mother (the deceased), he did not disclose about it to anyone though many persons were present near his house, until he met his brother Ravindra Choubey (PW-1). Arvind Choubey (PW-2) has deposed in paragraph 12 that he had not told anyone about the incident on the way. It is admitted fact that the appellant, the deceased and Arvind Choubey (PW-2) were residing together in the house and it appears that on the fateful day, Arvind Choubey (PW-2) was also present in the house. When Arvind Choubey (PW-2) returned to house at about 5 P.M., he enquired about his mother (the deceased) from the appellant. On being informed by the appellant that the deceased had gone on pilgrimage along with a woman, he did not try to enquire further about whereabouts of his mother from anyone. This conduct of Arvind Choubey (PW-2) is unnatural. i 8 12. Ravindra Choubey (PW-1) has deposed that on coming to know about death of his mother, he called one Pradeep Halwai and went along with him to lodge the report in police station. He has further stated that the appellant had confessed before him about commission of murderof his mother (the deceased) by her. This witness also did not tell anything about the death of his mother to anyone. Conduct of this witness also appears to be unnatural. 13. Ravindra Choubey (PW-1) has deposed in paragraph 3 that relation between his mother and the appellant was cordial. Therefore, there was no motive attributed against the appellant. Arvind Choubey (PW-2) has admitted in cross-examination in paragraph 6 that some altercation had taken place between him and the appellant prior to the occurrence and on this account, he was not in talking terms with his elder brother Ravindra Choubey (PW-1). Ravindra Choubey (PW-1) has stated in cross-examination in paragraph 7 that the appellant and Arvind Choubey (PW-2) were not in talking terms on account of thealtercation, which took place between them prior to the occurrence. 14. Ravindra Choubey (PW-1) has deposed in paragraph 8 that he had written a letter to his father-in-law for giving him a sum of Rs.4,000/- in place of a television. In cross-examination in paragraph 15, this witness has admitted that on 15-7-1991, he had written a letter to his father-in-law for giving him a sum of Rs.15,000/- for the purpose of opening a Kirana (Grocery) shop. From the above evidence, it is evident that relations among the appellant, Ravindra Choubey (PW-1) and Arvind Choubey (PW-2) were not cordial. •K ^— 15. Ramji Yadav (PW-6) has deposed in paragraph 2 that he had prepared Site-Plan Ex.P-16. We have perused the document Ex.P- 16. The Ghuruva has beenshown in the Site-Plan (Ex.P-16) at No.8 and the place of occurrence has been shown at No.3. Distance between the two places is 61 feet. Arvind Choubey (PW-2) has stated in paragraph 7 that there was no door or wall in the way from courtyard to the Ghuruva and tbere was a wall after the Ghuruva and there was a door in west-side for coming out of the house towards Gali. From the above, it is clear that the Ghuruva was accessible and approachable from the Gali. Therefore, no conclusion can be drawn that the dead body of the deceased was hidden in the Ghuruva, which was in exclusive possession of the appellant and was not accessible to any one, and the appellant alone was required to offer explanation for it. 16. As regards theory of last seen together, it was not proved by the prosecution through conclusive evidence. There is a long time gap between the dead body seen and the deceased was last seen in the company of the appellant. In these circumstances, the appellant cannot be convicted on the basis that she was last seen in the company of the deceased earlier at one point of time. 17. So far as the question regarding extra-judicial confession before Ravindra Choubey (PW-1) and Arvind Choubey (PW-2) is concerned, in Mulkraj vs. The State of Uttar Pradesh, AIR 1959 .i v-^^Sh ^ '^fclL^-'"^ '^ ^'^// INN» 10 SC 902, the Hon'ble Supreme Court has held that "an extra-judicial confession if voluntary can be relied upon by the Court along with other evidence in convicting the accused. The confession will have to be proved just like any other fact. The value of the evidence as to the confession just like any other evidence, depends upon the veracity of the witness to whom it is made. It is true that court requires the witness to give the actual words used by the accused as nearly as possible, but it is not an invariable rule that the Court should not accept the evidence, if not the actual words but the substance were given. It is for the court having regard to the credibility of thewitness, his capacity to understand the language in which the accused made the confession to accept the evidence or not." 18. In Ajay Singh vs. State of Maharashtra, (2007) 12 SCC 341, the Hon'ble Supreme Court has observed thus: "8. ....... Though it is not necessary that the witness should speak the exact words but there cannot be vital and material difference. While dealing with a stand of extra-judicial confession, court has to satisfy that the same was voluntary and without any coercion and undue influence. Extra-judicial confession can form the basis of conviction if persons before whom it is stated to be made appear to be unbiased and not even remotely inimical to the accused. Where there is material to show animosity, court has to proceed cautiously and find out whether confession just like any other evidence depends on veracity of witness to whom it is made. ........." ^;.;;r>, ^ ••^,!f.^--^ ; ^' .^' 11 19. Arvind Choubey (PW-2) has stated in cross-examination in paragraph 12 that he and his brother Ravindra Choubey (PW-1) had enqutred from the appellant about the deceased but she did not tell anything about it. He has further stated that on making her to take oath and tell truth, she had told that she had committed murder of the deceased. Statement of Ravindra Choubey (PW-1) is similar to that ofArvind Choubey (PW-2). 20. It is evident that relation between the appellant and Arvind Choubey (PW-2) was not cordial and an altercation had taken place between them prior to the occurrence. Ravindra Choubey (PW-1) and Arvind Choubey (PW-2) appear to be highly interested witnesses and they appear to be biased and inimical to the appellant. Therefore, their testimonies create a doubt regarding extra-judicial confession of the appellant. We are of the view that in the above facts and circumstances, it was not safe to rely on the evidence of extra-judicial confession for convicting the appellant for commission of murder of the deceased, as the evidence of the above witnesses are shaky and a shadow of doubt is created on their testimonies regarding extra-judicial confession, which appears to be obtained by pressurizing the appellant. 21. Though the prosecution has also led evidence of memorandum and recovery of Kudali and Saree, but, mere recovery of Kudali and Saree does not prove the case of the prosecution as it has failed to prove that human blood was found on these two 12 ari:icles. Therefore, memorandum statement and the recovery of the articles cannot be based for conviction of the appellant. 22. We have carefully examined the entire evidence available on record. We are of the view that the learned Additional Session Judge has erred in law in resting the conviction on the circumstantial evidence of last seen and extra-judicial confession allegedly made by the appellant to the above two witnesses, whose evidence to that effect was shaky. GOt^l 23. In the result, the appeal is allowed. The conviction and sentence awarded to the appellant under Sections 302 and 201 of the Indian Penal Code are set aside. The appellant was arrested on 16-12-1992. She was through-out in jail and was released on bail on 8-2-2002 vide order dated 9-1-2002. At present, she is on bail. Her bail bonds are cancelled and surety stands discharged. Sd/- Sunil Kumar Sinha Judge Sd/- R.S. Sharma Judge