.< HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'bte Shri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha, J. APPELLANT RESPONDENT APPELLANT RESPONDENT APPELLANT RESPONDENT Cnmjnal Appeal No. 299 of 1992 Mohan Das S/o Mukandiram by caste Satnami, aged about 19 years, R/o Khurtipar Thana Dongargaon, District Rajnandgaon Versus State of Madhya Pradesh (Now State of Chhattisgarh) Criminal Appeal No. 300 of 1992 Gajanand S/o Bishoha Ram Satnami, aged about 29 years, R/o Khurtipar Thana Dongargaon, District Rajnandgaon Versus State of Madhya Pradesh (Now State of Chhattisgarh) And Crjminal Appeal No. 327 of 1992 Anjor S/o Nanduram Satnami, aged about 18 years, R/o Khursipar Thana Dongargaon, District Rajnandgaon Versus State of Madhya Pradesh (Now State of Chhattisgarh) (Criminal Appeals under Section 374 (2) of The Code of Criminal Procedure. 1973) Appearance: Mr. P.K.C. Tiwari, Sr. Advocate with Mr. Shashi Bhushan, Advocate for the appellants. Mr. Akhil Agrawal, Panel Lawyer for the State. i,^"^ /'^'-^ "i^ ^I^. '^s^t.t 'Hx^y^ it^.vafxr Criminal Appeals No. 299 of92: 300 of92 & 327 of92 JUDGMENT (2?.08.2010) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) These appeals have been directed against the judgment dated 31.1.92 passed in Sessions Trial No. 74/91, by the Second Additional Sessions Judge, Rajnandgaon, whereby, the four accused persons were convicted u/s 302/34 IPC and sentenced to undergo imprisonment for life. (2) In all, there were four accused persons who were convicted and sentenced as aforementioned. These are the appeals filed by three of them. The fourth accused, Ramhlu had also filed a separate appeal challenging his conviction and sentence which came to be registered as Cr.A. No. 301/92. However, when he was released from Central Jail, Raipur on 4.8.2004 upon remission of sentence being granted by the State, his appeal was dismissed as not pressed. (3) The facts, briefly stated, are as under:- On 15.2.91, dead body of deceased- Mannulal was found hanging from a tree in the outer area of the village. His father Biselal (PW-1) lodged the merg intimation (Ex.-P/1). The Investigating Officer reached to the place of occurrence, gave notice to the Panchas and prepared inquest (Ex.-P/2) on the body of the deceased. A letter (suicidal note) was found inside the baniyan of the deceased. It was also taken into possession by the police. The dead body was sent for its post-mortem examination which was conducted by Dr. I.S. Thakur (PW-6). On 17.3.91 a village Panchayat was convened, in which Anjor (one of the accused) made extra-judicial confession which was reduced into writing by the villagers in form of Ex.-P/4. It was handed over to the Criminal Appeals No. 299 of92; 300 of92 & 327 of92 police by the villagers. Ex.-P/4 contains the names of all four accused persons giving details of the manner in which the offence was allegedly committed. It also disclosed that, in fact, the deceased was strangulated by a gamchha by the accused persons and then the dead body was hanged with the tree. Thereafter the alleged suicidal note written by accused Mohan Das was put in the baniyan of the deceased. The ligature whjch was found around the neck of the deceased was a roped made of leather which was brought from the house of accused Mohan Das. The aforesaid suicidal note was sent for its examination to hand-writing expert, Mr. A.K. Pauranik, who was Additional State Examiner Of Questioned Documents Govt. Of M.P., Bhopal. He gave his report Ex.-P/18, according to which, the alleged suicidal note was written in the hand-writing of accused Mohan Das and it was not written in the hand-writing ofthe deceased. (4) The learned Sessions Judge believed the evidence of extra-judicial confession made by accused Anjor. He also believed the report of hand- writing expert and evidence of identification of the rope belonging to accused Mohan Das, and convicted & sentenced the appellants as aforementioned. (5) Mr. P.K.C. Tiwari, learned Senior Counsel appearing on behalf of the appellants, argued that the extra-judicial confession made by accused Anjor was not admissible in evidence because it was not affecting the maker of confession. It was only affecting the co-accused persons. Therefore, it was not relevant in view of the provisions of Section 30 of the Evidence Act. About the hand-writing expert report, he argued that the concerned expert was not examined, therefore, the said report was also not admissible in evidence. About identification ofthe rope belonging to accused Mohan Das, he.argued thatsuch kind pf leather rope (nahan) N ^'^1 ^••'"^- i».l(s»»,,«? "'i'^*&:l®'^i'l^ Criminal Appeals No. 299 of92; 300 of92 & 327 of92 is a common article found in the house of every villager, therefore, it would hardly connect the accused persons from the above crime. (6) On the other hand, Mr. Akhil Agrawal, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (7) We have heard the learned counset for the parties at length and have also perused the records of the sessions case. (8) Admittedly, there was no eye-witness to the incident and the case of the prosecution was based on circumstantial evidence. In a case based on circumstantial evidence, the circumstances must be fully established and 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 persons are guilty. The circumstances must be of a conclusive nature and tendency that they should exclude every possible hypothesis except the one to be proved and 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 sliow that in al.l human probability the act must have been done by the accused/accused persons. (9) In case on hand, the learned Sessions Judge has based the conviction on 3 circumstances - (i) Extra-judicial confession made by accused - Anjor; (ii) Suicidal note written by accused-Mohan Das & (iii) The leather rope (nahan) found around the neck of the deceased to be that of accused Mohan Das. ^'.'* ^ Criminal Acpeals No. 299 of92; 300 of92 & 327 of 92 //^.. (10) So far as first circumstance of extra-judicial confession is concerned, the said confession was made by one of the accused before village Panchayat after one month of the incident. The contents of the confession (Ex.-P/4) would show that it was not a confession affecting the maker of it i.e. accused- Anjor. In the said confession, nothing has been attributed to Accused-Anjor. On the contrary, it comes in the confession that he was threatened by co-accused persons not to disclose all this to anybody, otherwise he would also be roped into the matter. Section 30 of the Evidence Act provides for consideration of proved confession affecting person making it and others jointly under trial for same offence. It says that when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. This makes very clear that such kind of confession would be admissible only if the same is affecting the person making it. If such confession is not affecting the person who made it, it would not be relevant u/s 30 of the Evidence Act and it would hardly be an incriminating circumstance to connect the accused persons with crime in questipn. In the present case also, as stated above, it was not a confession affecting its maker. Therefore, it was hardly incriminating against the accused persons, and the learned Sessions Judge erred in law in holding it as an incriminating circumstance against them.. (11) So far as report of hand-writing expert is concerned, we find that the expert was not examined. An objection was also taken by the defence 2 5 ) i Sfe i M. v >°i ./ Criminal Appeals No. 299 of92; 300 of 92_&J27 of92 that such report was not admissible in evidence without examination of the expert, but the objection was overruled by the Sessions Judge. The > Sessions Judge took the report as proved on the strength of Section 293 Cr.P.C. Section 293 Cr.P.C. reads as under:- "293. Reports of certain Government scientific experts.- (1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code. (2) The Court may, if it thinks fit, summon and examine any ^uch expert as to the subject-matter of his report. (3) Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf. (4) This section applies to the following Government scientific experts, namely:- (a) any Chemical Examiner or Assistant Chemical Examiner to Government; (b) the Chief Controller .of Explosives; (c) -the Director of the Finger Print Bureau; (d) the Director, Haffkeine Institute, Bombay; (e) the Director, Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State Forensic Science Laboratory; the Serologist to the Government. (O (9) any other Government scientific expert specified, by notification, by the Central Government for this purpose." llp Criminal AppealsNo. 299 of92; 300 of92 & 327 of92 Clause (g) of sub-section (4) was added w.e.f. 23.6.2006. Under the other Clauses, in our considered view, the hand-writing expert namely Additional State Examiner Of Questioned Documents Govt. Of M.P., Bhopal would hardly be covered. A person while discharging his duties as the State Examirier Of Questioned Documents would hardly fall within the above categories of expert provided under sub-section (4) of Section 293 Cr.P.C. Since the provision is clear and specific, the Court has to accept the document issued by any of the sjx offjcers who are mentioned in ^l '^ '" " .-^'.,:; ,^ne7'r\',^^;--\\~ ,^ Section 293 as valid evidence without examining the author thereof. Therefore, the hand-writing expert's report, filed in the Sessions Court, was not admissible in evidence without proving it by expert who prepared the report. Since the expert was not examinecl, therefore, the Sessions Court erred in law in accepting the said report as an evidence in the matter. (12) The third circumstance was about the rope. It comes in the evidence of Biharilal (PW-3) that the rope (nahan made by leather) found around the neck of the deceased was a roped which he had seen in the house of accused Mohan Das. Such kind of rope is very common in the villages and it'may be found in the house ofevery villager. Therefore, it was also not an incriminating circumstance against the accused persons. (13) In the above facts and circumstances of the case, we find that the learned Sessions Judge completely erred in law in holding the accused persons guilty of the offence punishable u/s 302/34 IPC on the above set of circumstantial evidence. The conviction and sentences awarded to the g Criminal Aweals No. 299 of92; 300 of92 & 327 of92 appellants, on the above circumstantial evidence, therefore, cannot be sustained. (14) In the result, the appeals are allowed. The conviction and sentences awarded to the appellants u/s 302/34 IPC are set-aside. The appellants are acquitted of the charges framed against them. It is stated that the appellants were taken into custody on 19.3.91 and were directed to be released on bail on 16.4.2002. Presently they are on bail. Their bail bonds are cancetled and sureties stand discharged. Sd/- Ghief Justice Sd/- Sunil Kumar Sinha Judge vatti ^ f/ -< M < c 3