HIGH COURT OF CHHATTISGARH BILASPUR CORAM: Hon’ble Shri Ra'eev Gu ta C.J. 8a Hon’ble Shri Sunil Kumar Sinha J. Criminal Appeal No. 1176 of 1994 Fagu Singh Vs. State of Madhya Fradesh (Now State of Chhattisgarh) JUDGMENT For consideration F g 7 ‘ «MN Sdl- SUNE KUMAR SEPIA ‘ Judge ‘ ‘{> HON’BLE SHRI JUSTICE RAJEEV GUPTA j (W = / Sd/— f Chief Justice /- __ { / sw— Sunil. Kumar Sinha Judge , Post for Judgment V5 /O3/2011 (iL/ ”i \ W- ,Sb HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon’ble Shri Rajeev Gupta, C.J. 8n Hon’ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 1176 of 1991 APPELLANT Fagu Singh S/o Mansha Ram, Aged — 18 years, R/o Village— Sheetal Pani, P.S. Chilii, Tahsil Kawardha District Rajnandgaon — Now Kawardha (M.P. — Now Chhattisgarh) Versus State of Madhya Pradesh (Now State of Chhattisgarh) RESPONDENT (Criminal Apyeal under Section 374 (21 of The Code of Criminal Procedure, 1973) Appearance: Mr. Abhay Tiwari arid Mrs. Savita Tiwari, Advocates for the appellant. Mr. J.A. Lohani, Panel Lawyer, for the State.‘ JUDGMENT (15.03.2011) FOllowing judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) This appeal is directed against the judgment dated 28th of July, 1994 passed in Sessions Trial No. 144/93 by the Additional Sessions Judge, Khairagarh, Camp Court Kawardha. By the impugned judgment, the appellant has been convicted u/ ss 302 85 201 IPC and sentenced to undergo imprisonment for life. a. (2) The facts, briefly stated, are as under:- Deceased- Mansha Ram was the father of the ‘appellant. On 4.7.93 at about 10.00 p.m., ManshaARam 2 Criminal Appeal No. 1176 of 1994 f? came to his house in drunken condition. He quarreled with his wife Samartiya Bai (PW—2). He also quarreled with other family members including the appellant. The allegations are that When he slept in the house, the appellant committed his murder and thereafter the dead body was buried in the badi of the house. The case of the prosecution is that after 10 days, the appellant made extra-judicial confession before Ghasiya (PW-3), Sudan Singh (PW-6) and Baghel Singh (PW— 9). They came to the house of the appellant and saw the place where the dead body was allegedly buried. Samartiya Bai (PW—2) lodged the First Information Report (Ex.—P/ 10). In the report, there is mentioned about the extra-judicial confession made before her also. The dead body of the deceased was exhumed on 16.7.93 and a panchnama (Ex.— P/2) was prepared. The Investigation Officer gave notice to the Panchas and prepared inquest (Ex.-P/3) on the dead body of the deceased. The dead body of the deceased was sent for post-mortem to Block Hospital, Kawardha, where the post-mortem examination was conducted by‘a team of two Doctors, including Dr. R.K. Bakshi (PW-1). They found many injuries on the body and opined that the cause of death was haemorrhage and shock as a result of injuries to the Vital parts of the body. The post-mortem report is Ex.- P/ 1. In further investigation, the appellant was taken into custody and his memorandum statement (Ex.-P/4) u/s 27 of the Evidence Act was recorded and an axe, pickaxe (gaiti), spade and other articles were seized at the instance of the appellant vide seizure memo Ex.-P/5. No report relating to the chemical examination of these articles was produced. (3) The case of the prosecution was based upon two important circumstances. First, the appellant made extra-judicial confession before his mother and also before 3 prosecution witnesses namely Ghasiya (PW-3), Sudan Singh (PW-6) and Baghel Singh (PW—9). 3 Criminal Appeal No. 1176 of 1994 3% Second, the dead body of the deceased was recovered from the badi of the appellant. (4) Mr. Abhay Tiwari and Mrs. Savita Tiwari, learned counsel appearing on behalf of the appellant, argued that the evidence relating to extra-judicial confession is shakey; the dead body was not recovered at the instance of the appellant; there were many inmates in the house of the appellant, therefore, the recovery of the dead body from the badi of their house cannot be exclusively attributed to the appellant. (5) On the other hand, Mr. J.A. Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (6) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (7) So far as recovery of the dead body is concerned, we find from the' recovery panchnama (EX.-P/2) that the body was recovered at the instance of Samartiya Bai (PW-2 ~— wife of the deceased). It was not recovered at the instance of the appellant. 'The appellant was also present at the time of recovery. The recovery memo shows that the appellant was the witness of identification of the dead body, who identified the dead body to be a that of his father (Mansha Ram — since deceased). The proceedings of recovery of the dead body were conducted before Sub-Divisional Magistrate. It comes in the evidence of the witnesses that there 4 Criminal Appeal N0. 1 176 0f 1994 g! were many inmates in the house of the appellant, as they were living in a joint family. Therefore, the recovery of the dead body from the badi of the appellant at the instance of Samartiya Bai (PW-2) cannot be attributed to the appellant. Samartiya Bai (PW- 2) has turned hostile. She has not supported the case of the prosecution. Even she did not support the First Information Report. She has also not supported the alleged extra—judicial confession, 'made by the appellant before her prior to lodging of F.I.R., the mention of Which we find in the F.I.R. Therefore, we find that the above circumstance of recovery of the dead body from their badi cannot be attributed to the appellant. (8) Now we shall consider the main circumstance of extra— judicial confession. (9) In Mulk Raj -Vs- The State of U.P., AIR 1959 sc 902, the Supreme Court held that “An extra-judicial confession, if voluntaly, 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 the 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 the witness, his capacity to understand the language 5 é Criminal Appeal N0. 1176 of 1994 in which the accused made the confession, to accept the evidence or not.” (10) Further in Ajay Singh -Vs- State of Maharashtra, (2008) 1 SCC (Cri.) 371, a‘similar proposition was laid down and it was held that the exact words used by accused need not be reproduced and substance of the confession made by accused would be sufficient but there should be no ambiguity in the evidence of confession made by accused. In fact, the credibility of the evidence of the witnesses has to be judged. In this case different witnesses claimed to have heard different sentences shouted by the accused by way of confession after commission of the crime. On appreciation of their evidence, the Supreme Court held.that it would be unsafe to rely on the alleged extra-judicial confession on that account. (1 1) Ghasiya (PW—3) has deposed that when he was ploughing his fields, the appellant came there and took him to the house of - Baghel Singh (PW-9). There he made extra—judicial confession that “he committed murder of his father by giving blows by tangi and has buried the dead body in his badi.” Baghel Singh (PW-9) has deposed in different fashion. He deposed that “the appellant came to his house along with Ghasiya (PW~3) and said him that he has killed his father, therefore, he should tell some Way to him. On this, he said that he cannot tell any way and the appellant will be taken to the police station.” Sudan Singh (PW-6) deposed that “on the fateful day the appellant went to call him from his fields 6 6 ( Criminal Appeal No. 1176 of 1994 saying that all the Villagers have gathered, he should also come. He also went to the place where the other villagers had gathered. They asked Fagu as to What is the matter ? Fagu stated that since his father quarreled after drinking liquor and he also assaulted his mother, therefore, he committed murder of his father by using an axe. He also told about burying the dead body in the badi.” (12) We find that it is not a case in Which the extra—judicial confession was made before different witnesses at different point of time. In case on hand, the alleged extra-judicial confession was made at one place and the above 3 Witnesses heard the extra- judicial confession and thereafter they went to the badi, saw the place, where, according to the appellant, the dead body was buried. All the 3 witnesses are giving different versions regarding the extra-judicial confession. Apart from the abbve these witnesses are the witnesses of recovery of the ,dead body also, which was recovered at the instance of mother of the appellant. If the appellant had shown the place of burying the dead body, in normal circumstances, the recovery would have been made at the instance of the appellant, which has not been done in this case. On the contrary, the dead body was identified by the appellant, who, according to panchnama, was witness of pariChnama (Ex.— P/2) as also the identification of the dead body. If the First Information Report was named and there was mention in the F.I.R. about extra-judicial confession of the appellant to his mother, and the appellant, her mother, and many other villagers 7 t Criminal Appeal No. 1176 of 1994 cg; L including the witnesses of the extra—judicial confession were present there, in normal circumstances, said recovery would have been made at the instance of the appellant and the appellant would not have been taken as a witness to identify the dead body whose status was already recognized as an accused by that time. The proceedings of panchnama, therefore, creates a doubt on the testimonies of the above witnesses of extra—judicial confession. We are of the view that in the above facts and circumstances, it was not safe to rely on the sole evidence of extra—judicial confession for convicting the appellant for commission of murder of the deceased, as the evidence of the above witnesses are shakey and a shadow of doubt is created on their testimonies on the face of the contents of the recovery panchnama of the dead body. (13) 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. It needs no reminder that legally established circumstances and not merely s 8 Criminal Appeal No. 1 176 of 1994 @ 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.” (14) We have carefully examined the entire evidence available on record in light of the above principles laid down by the Supreme Court. We are of the View that the learned Sessions Judge erred in law in resting the conviction on the solitary circumstance of extra— judicial confession allegedly made by the appellant to the above 3 Witnesses, whose evidence to that effect was shakey. (15) For the foregoing reasons, the appeal is allowed. The conviction and sentences awarded to the appellant u/ss 302 8L 201 IPC are set—aside. He is acquitted of the charges framed against him. The appellant was arrested on 16.7.93. He was released on bail on 18.3.2002 by order dated 9.1.2002. Presently he is on bail. His bail bonds are cancelled and surety stands discharged. ,S(i/— Sunil Kumar Sinha Judge Sd/— . i Chief Justice vatti