HIGH COURT OF CHHATTISGARH, BILASPUR _ mwsnoN BENCH CORAM: HON’BLE MR. T.P. SHARMA AND , HON’BLE MR. R.N. CHANDRAKAR, JJ. APPELLANT: RESPONDENT: Criminal Agpeal No.1087 of 2007 Gauri Shankar Giri S/o Arjun Giri, aged abaut 37 years, R/o Village Kalgatar, Police Station Baramkela, District Raigarh (C.G.) Versus State of Chhattisgarh through District Maistrate, Raigarh, District Raigarh (C.G.) , APPELLANT: (In Custody) Criminal Ap_geal No.92 of 2008 Rani Krishna Choudhary, S/o Mohar Sai Choudhary, 37 yrs, R/o Village Karanpali, P.S. Baramkela, Distt. Raigarh (C.G.) Versus State of. Chhattisgarh Through Distt. Magistrate Raigarh, Distt. Raigal'rh (C.G.) RESPONDENT: APPELLANT: (ln Jail) EM Criminal Aggeal No.333 of 2008 Thuluram Sarthi S/o Jotram Sanhi. aged about 32 years, Rlo Village Karanpali. Police Station Baramkela. District Raigarh (C.G.) Versus State of Chhattisgarh through District. Magistrate, Raigarh, District Raigarh (C.G.) AND RESPONDENT: APPELLANT: (ln Jail) Criminal Aggeal No.116 of 2009 Bharat Jaiswal (Dansena) S/o Yadram Dansena aged 27 years, Rlo Village Karanpali, Police Station Baramkela, District Raigarh (C.G.) Versus State of Chhattisgarh through District Magistrate,,Raigarh, District Raigarh (C.G.) {Criminal appeals under Section 374 (2) ofthe Code of Criminal Procedure, 1973} RESPONDENT: g Present: Mr. Awadh Tripathi, counsel for the appellants in Cr.A.Nos.1087/2007 and 333/2008. Mr. Prafull Bharat, counsel forthe appellant in Cr.A.No.92/2008. Mr. Dheerendra Pandey, for the appellant No.1 16/2009. i Cr.A. n JUDGMENT (30m November, 201 1) The followinq iudqment of the Court was passed by T.P. Sharma, J: - 1. Cr.A.Nos;1087/2007, 92/2008, 333/2008 and 116/2009 tiled against common judgment of conviction & order of sentence dated 290-2007 passed by the Additional Sessions JUdge, Sarangarh, in Sessions Trial No.93/2006 are being disposed of by this common judgment. 2t By filing Cr.A.No.1087/2007 appellant Gauri Shankar Giri, Cr.A. No‘92/2008 appellant Ram Krishna Choudhary, Cr.A.N0.333/2008 appellant Thuluram Sarthi and Cr.A.No.116/2009 appellant Bharat Jaiswal (Dansena) have challenged legality and propriety of the judgment of conviction & order of sentence dated 29-92007 passed by the Additional Sessions Judge, Sarangarh, in Sessions Trial No.93/2006, whereby and whereUnder learned Additional Sessions Judge after holding the appellants/seven accused persons of the case guiify for formation of unlawful assembly armed with deadly weapons having common object to commit murder of Basant Kumar, to conceai'the evidence of criminal case and to commit conspiracy, convicted the appellants under Sections 147, 148, 302 read with Section 149, 201 & 120B of the IPC and sentenced each of them to undergo RI for two years; Rl'for two years; imprisonment for life & pay tine of Rs.10,000/’, in default additional RI for one year; Rl for five years & pay fine of Rs.2,000/—‘, in default additional Rl for one year; and Rl for ten years & pay fine of Rs.5,000/-, in default additional 'Rl for one year, respectively. 3. Conviction is impugned on the ground that without any iota of evidence the trial Court has convicted & sentenced the appellants as aforementioned and thereby committed iliegality. Mr. J.A. Lohani, Panel Lawyer for the State/respondent. 3 x 4. As per case of the prosecution, in the intervening night of 24‘“ & 25‘“ February, 2006, the appellants formed unlawful assembly, they were holding deadly weapons and were present at Katen Ghutkuri forest near Bahera tree along with Basant Kumar (since deceased). They committed murder of Basant Kumar and burnt the dead body, thereafter, they fled from the spot. When Basant Kumar did not return back to his houseon 25-22006, villagers and relatives of Basant Kumar made search of Basant Kumar. Dead body of Basant Kumar was found at forest in semi-burnt condition with injuries. Lambodar (PW-1) went to Police Station Baramkela and lodged FIR against unknown person vide Ex.P-1. Morgue was recorded vide Ex.P-8. Investigating Officer left for M; the scene of occurrence and after summoning the witnesses vide Ex. P- g ”>1 6, prepared inquest over the dead body of Basant Kumar vide Ex.VP-7. Spot map was prepared vide Ex.P-2. Bloodstained & plain soil, one flat & round shaped stone of 7 Kgs. stained with blood, one flat & square shaped stone of 5 Kgs. stained with blood, one piece of stone of 3 Kgs. stained with blood, ash found over the body of 1/2 Kg. and one woolen piece were seized from the spot vide Ex.P-3, Soil below the dead body was taken out and seized vide Exs.P-4 & P-5. Another map was prepared vide Ex.P-14. 5. Dead body of Basant Kumar was sent for autopsy to Community Health Centre, Baramkela. Dr. J. Choudhary (PW—1 0) conducted autopsy vide Ex.P-32 and found following symptoms/injuries: - (1) Bleeding from ear and nose. (2) Swelling over left part of head in the size of 27 c.m. x 20 c.m.. (3) Swelling of 20 c.m. x 15 c.m. over'right side of head. (4) Parietal, temporal and frontal bones were found fractured. (5) Brain was crushed. (6) Right thigh and abdomen were burnt. (7) Burn injuries were post-mortem in nature. Mode of death was shock and death was homicidal in nature. 6. During course of investigation, one of the accused persons namely Bodhram was taken into custody, he shown his willingness to give confession, he was produced before the Magistrate on 17—3—2006, he was directed to be produced on 20-3-2006 and on 20-3-2006 after explaining the fact that he is not under obligation to give confession and K the confessmn given by hlm may be used agamst h‘m desplte he was ady to give his confessmn statement It was recorded on 20—3-1006 Vlde EXP—42 by the Judlc'a! Magistrate First Class, Ralgarh 7. Thereafter, statements of two witnesses namely Lochan (PW-8) & Daukatram (PW-1 3) were recorded. They have deposed that they have seen all appellants along with Basant (since deceased) on 24-2-2006 in the evening near Bahera tree and on second day, injured dead body of deceased Basant was found. Spot map was prepared by the Patwari 'vide EXP-10. ’ 8. During course of mvestigation appellant Kunu @ Ganan @ Bodhram was taken into custody, he made discloser statement of knife vtde Ex P- 16 and same was recovered at his instance Vlde Ex P 17 ARDellant Birju made discloser statement of wrist watch vrde EXP 1‘8 andsame was recovered at his instance vide EXP-19 in broken condition. Appellant Gauri Shankar made discloser statement of petrol bottle vide EXP-20 and same was recovered at his instance vide EXP-21. Appellant Ram Krishna made discloser statement of wrist watch vide XP-22, but it was not recovered. E 9. The accused persons were arrested Statements of the witnesses were recorded under Section 161 of the CrPC Seized articles were sent for chemical examination vrde Ex P—48 and presence of blood over the knife recovered from Bodhram was confrmed vrde Ex P—48A After completion of Investigation charge sheet was fled before the Cnurt of JudiCial Magistrate First Class, Sarangarh who committed the case to the Court of Sessions, Raigarh, from where learned Additional SesSions Judge received the case on transfer for trial. 10iln order to prove the guilt of the accused, the prosecution has examined as many as thirty—three witnesses. The accused were examined under Section 313 of the CrPC in which they denied the circumstances appearing against them, pleaded innocence and false implication. 11 Defence has examined defence witness Arjun Giri (DW—1) who has deposed that his grand son Rahul son of appellant Gauri Shankar was m \ admitted in Medical College Raipur on 2 2 2006 and he was discharged on 14-3-2006, during the aforesaid period Gauri Shankvai' was With him at Raipur. K 5 Sessions Judge convicted & appellants as sentenced ' th aforementioned. 13.We have heard learned counsel for the parties, perused the judgment and record of the trial Court, 14.Mr. Awadh Tripathi, Mr. Prafull Bharat & Mr. Dheerendra Pandey, learned counsei for the appellants, vehemently argued that this is a case of blind murder, conviction of the appellants is based on last seen evidence of Lochan (PW—8) & Daulatram (PW-13) and confession of accused Bodhram. Learned counsel submitted» that the trial Court has relied upon the statement recorded under Section 164 of the CrPC Ex.P- 42 of accused Bodhram. Aforesaid evidence is not confession of accused Bodhram. Virtually, it is exculpatory statement/confession and ’ . not inculpatory statement/confession. Therefore, it cannot be relied upon as confessional statement of Bodhram. However, it would have been relied upon by the prosecution after adducing Bodhram as witness, but during the course of accusation of Bodhram as accused, his inculpatory statement cannot be treated as confessional statement and is not admissible in evidence. Likewise, statements of Lochan (PW-8) & Daulatram (PW—13) under Section 161 of the CrPC have been recorded after lapse of considerable time on. 21-3-2006 as Exs.D-2 & D-4, respectively, i.e. after twenty—four days of incident, especially after arrest, production and recording of the statement of accused Bodhram under Section 164 of the CrPC. Lochan (PW-8) is resident of Village Mekra, Police Station Baramkela, Distt. Raigarh and Daulatram‘(PW-13) is resident of Village Padkipali, not of village Karanpali. The prosecution has not explained as to how the investigating officer came to know that these witnesses are witnesses of last seen in the present case. These witnesses have specincally deposed that they were present during last rituals of deceased Basant in his village and have participated in last rituals of Basant, however, they have not narrated the incident to any person. Evidence of these witnesses does not inspire confidence and is not trustworthy. Virtually, in thetlpresent case, Investigating Officer l.L. Purre (PW~22) was investigating the crime till 12-3-2006, thereafter the case was handed over to another investigating officer namely Sushanto Banerjee (PW—23) on 16—3—2006 who arrested accused Bodhram and produced before the Magistrate on 17—3-2006. This clearly reveals that 12.After affording opportunity of hearin to the parties, learned Additional e g 6 all of a sudden, the investigating'officer has been changed and new investigating officer arrested accused Bodhram on same day, thereafter, statements of Lochan (PW-8) & Daulatram (PW—13) were recorded on 21-3-2006 which shows that the entire investigation is concocted and unfair, and that both the witnesses are concocted witnesses. 15.Mr. Awadh'Tripathi, learned counsel appearing on behalf of appellants Gauri Shankar Giri & Thuiuram Sarthi, placed reliance in the matter of State of T.N. v. J. Jayalalitha1 in which the Supreme Court has held that confessional statement of co-accused could not be treated as evidence for deciding to proceed against another accused, ‘more so when the statement was exculpatory in nature, exculpatory statement cannot be treated as evidence. Mr. Awadh Tripathi further placed reliance in the matter of R. Janakiraman v. State represented by Inspector of Police, CBI, SPE, Madrasz in which the Supreme Court \ has held that the court cannot start with the confession of a co-accused and must begin with other evidence adduced by the prosecution, but the court can use confession of co-accused to lend support or assurance to the conclusion of guilt which the court is about to reach on the other evidence. 16.Mr. Prafull Bharat, learned counsel appearing on behalf of appellant Ram Krishna Choudhary, placed reliance in the matter of Kashmira Sinrg’'h v. a5} The State of Madhya Pradesh3 inrwhich the Supreme Court has held' that the confession of an accused person is not evidence in the ordinary sense of the term as defined in Section 3. It cannot be made/the foundation of a conviction and can only be used in support of other evidence. Mr. Prafull Bharat further placed reliance in the matter of Mohd. Khalid v. State of W.B." in which the Supreme Court has held- that conspiracy can be proved by direct evidence, though the same is rarely available, or by circumstantial evidence and confession of co- accused, even without corroboration, can be taken into consideration. 17.Mr. Dheerendra Pandey, learned counsel appearing on behalf of appellant Bharat Jaiswal (Dansena), placed reliance in the matter of 1 (2000) 5 scc 440 2 (2006) 1 sco 697 3 AIR 1952 sc 159 (2002) 7 SCC 334 Sidharth, etc. etc. v. State of Bihar5 in which the Sopreme Court has held that‘confessional statementv'of main saccuse‘d naming another accused as one of the conspirators, not supponed by the fact that he had actively participated in conspiracy; confession made by main accused cannot be basis‘for conviction. Mr. Dheerendra Pandey further placed reliance. in the matter of State of M.P. through CBI etc. v. Paltan Mallah and others etc.6 in which the Supreme Court has held that extra judicial confession of co-accused relating to other accused is no substantive evidence against the other accused persons and no conviction can be based on extra judicial confession of co-accused. J 18.0n the other hand, learned State counsel opposed all appeals and submitted that evidence of Lochan (PW-8) & Daulatram (PW-13) relating to last seen theory inspires confidence, same is trustworthy and their evidence cannot be out rightly rejected on the ground that their- statements under Section 161 of the CrPC have been recorded after twenty-four days of incident. Delay in recording statement of any witness or delay in lodging report by itself is not fatal to the prosecutibn o'r ground for rejection of evidence if such delay is properly explained. Learned State counsel further submitted that evidence adduced on behalf of the prosecution is sufficient to prove the case. After appreciating evidence available on record, the trial Court has rightly convicted & sentenced the La appellants. V 19.ln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. 20.ln the present case. homicidal death of deceased Basant Kumar as a result of fatal injuries found over his body has not been substantially disputed on behalf of the appellants, otherwise also, it is established by evidence of Dr. J. Choudhary (PW-10) and autopsy report EXP-32 that death of Basant Kumar was homicidal in nature. 21.As regards complicity of the appellants in crime in question, conviction is substantially based on last seen theory i.e. evidence of Lochan (PW-8) & Daulatram (PW-13) and statement of accused Bodhram recorded under Section 164 of the CrPC. 7. 5 AIR 2005 so 4352 6 AIR 2005 so 733 8 22.The word confession has not been defined anywhere. As per dictionary meaning (Black’s Law Dictionary Eighth Edition), confession means a criminal suspect’s oral or written‘ acknowledgement of guilt, often including details about the crime. 23.Section 24 of the Indian Evidence Act, 1872 deals with confession of the accused and the circumstances which it can be relied upon. Section 164 of the CrPC provides recording of confessions or confessional statements by the Judicial Magistrate i.e. recording of judicial confession. 24.While dealing with requirement of confession, the Supreme Court in the matter of Kanda Padayachi v. State of Tamil Nadu7 has held that an admission of a fact, however incriminating, but not by itself establishing the guilt of the maker of such admission, does not amount to conféssion within the meaning of Sections 24 and 25 of the Evidence Act. 25.While dealing with same question, the Supreme Court in the matter of Veera Ibrahim v. The State of Maharashtraa has held that a statement in order to amount to a ”confession" must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of an incriminating fact, howsoever grave, is not by itself a confession. A statement which contains an exculpatory assertion of some fact, which if true, would negative the offence alleged, cannot amount to a confession. 26.While dealing with the question of written and oral confession.,the Supreme Court in the matter of Shiva Karam Payaswami Tewa‘r v. State of Maharashtrag has held that confession means an admissidn of guilt whether it is communicated to another or not. The Supreme Court observed in para 5 of its judgment as follows: - “5. The expression ‘confession’ is not defined in the Evidence Act, ‘Confession‘ is a statement made by an accused which must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. The dictionary meaning of the word ‘statement’ is "act of stating; that which is stated; a formal account, declaration of facts etc." The word ‘statement’ includes both oral and written statement. Communication to another is not however an essential component to constitute a ‘statement’. An accused might have been over—heard uttering to himself or 7AIR 1972 sc 66 SAIR 197s sc 1167 9 AIR 2009 sc 1692 \ saying to his wife or any. other person incomdence. He might have also uttered something in soliloquy. He might also keep a note in writing. Ail the aforesaid nevertheless constitute a statement. If such statement is an admission of guilt, it would amount to a confession whether it is communicated to another or not. This very question came up for consideration before this Court in Sahoo v. State of Uttar Pradesh, AIR 1966 SC 40: (1966 CrLJ 68). After referring to some passages written by well known authors on the “Law of Evidence” Subba Rao, J. (as he then was) held that “communication is not a necessary ingredient to constitute confession"._ ln paragraph 5 of the judgment, this Court held as follows: ...Admi’ssions and confessions are exceptions to the hearsay rule. The Evidence Act places them in the category of relevant evidence presumably on the ground that as they are declarations against the interest of the person making them, they are probably true. The probative value of an admission or a confession goes not to depend upon its communication to another, though, just like any other piece of evidence, it can be admitted in evidence only on proof. This proof in the case of oral admission or confession can be offered only by witnesses who heard the admission or confession, as the case may be... lf, as we have said, statement is the genus and confession is only a sub- species of that genus, we do not see any reason why the statement implied in the confession should be given a different meaning. We, therefore, hold that a statement, whether communicated or not, admitting guilt is a confession of guilt. 7 (Emphasis supplied)” 27.While dealing with the words confession and exculpatory statements, the Supreme Court in the matter of Palvinder Kaur v. The State of Punjab“) has held that a confession must either admit in terms the offence, or at any rate, substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of. itself a confession. A statement that contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact, Which if true, would negative the offence alleged to be confessed. A statement which when read as a whole is of an exculpatory character and in which the prisoner denies his guilt is not a confession and cannot be used in evidence to prove his guilt. 1° AIR 1952 sc 354 10 28.In the aforesaid touchstone of law, we are required to examine EXP-42, the confession of accused Bodhram. 29.Ex.P-42, the statement of accused Bodhram under Section 164 of the CrPC, has been recorded by the Judicial Magistrate First Class, Raigarh on 20~3~2006 in which Bodhram has deposed detaiis of the offence and has deposed’the role attributed to six co-accused persons/co—appellants. in his detailed evidence. he has not stated anything that he has played role or he has participated in commission of offence, inter alia, in para 6 he has specifically deposed that he was requesting other accused persons not to kiii but they did not agree. Para 6 of his statement reads thus, "fiwemwfersasaWWwh‘maaW l” 30.Ex.P—42'cieariy reveals that Bodhram has not admitted his guiltkor t commission of offence or the ingredients of offence committed by him. His statement under Section 164 of the CrPC is exculpatory confessional statement of accused Bodhram. 31.As held by the Supreme Court in the matters of Kanda Padayachi (supra), Veera Ibrahim (supra), Shiva Karam (supra), Palvinder Kaur (supra), J. Jayalaiitha’s case (supra), R. Janakiraman (supra), Kashmira Singh (supra), Mohd. Khalid (supra), Sidharth (supra) and Paltan Maiiah’s case (supra), statement of co-accused Bodhram cannot be treated as confession, rather same is exculpatory statement of accused Bodhram. Ex.P—42 even cannot be considered for corroboration in absence of any opportunity of cross-examination to other accused persons. Virtuaily, after recording of statement of the co—accused under Section 164 of the CrPC, the investigating agency was having opportunity to make him witness. 1 32in these circumstances, evidence of Lochan (PW-8) & Daulatram (PW— 13) only, remains for consideration for proving offence against the appellants. 33. Lochan (PW—8) & Daulatram (PW-13) have categorically deposed in their evidence that on 24—2-2006 they have seen aii appellants near Bahera tree along with Basant Kumar (since deceased) and on second day Basant was found dead. As per autopsy report, death of Basant was homicidal in nature. Evidence of Lochan (PW~8) & Daulatram (PW-13) may be treated as last seen theory i.e, the deceased was seen alive in @ the company of the appenants last time on 24—2—2006, and on second day morning he was found dead. Time gap between Iast seen and death of thedeceased is too short, Therefore, it can be treated as substantive circumstance against the appellants. 34.As per evidence of Lochan (PW-8), he has seen the appeilants along with the deceased near Bahera tree. After detection of dead body he also visited Katen Ghutkuri forest where dead‘body of the deceased was kept and he has attended one ritual (dash karm). As per para 3 of his evidence, before dash karm i.e. 10‘“ day of death of deceased Basant Kumar, he had already informed Balkrishna Choudhary (PW-2) — father of Basant Kumar, that he has seen the appellants along with deceased Basant Kumar. ln para 4 of his evidence, this witness has further deposed that he has informed Balkrishna Choudhary (PW-2) after 5-6 days of incident. As per para 4 of his evidence, police were camping at village for one month and he has stated to the police after 5—6 days of incident and the police has recorded his statements 2-3 times. In para 6 of his evidence he has also deposed that he himself has not informed the police suo motu, but the police had called him 2—3 times and recorded his statement. 35. Daulatram (PW—13) has corroborated the evidenCe of Lochan (PW-8). ln para 4 of his evidence, Daulatram (PW-13) has deposed that he came to know on 25-2-2006 that Basant has been murdered. As per para 5 of his n evidence, he was present at the time of inquest. As per para 10, he has informed about the incident to the police within ten days of incident. «’36.As per evidence of Lochan (PW—8) & Daulatram (PW-13), they have seen deceased Basant alive in the company of the appellants last time on 24-2—2006 and when they came to know that Basant has been murdered, they came to the village, they attended last rituals of deceased Basant, and they informed the police and father of the deceased within ten days of incident, but their statements under Section 161 of the CrPC have been recorded on 21-3—2006 after lapse of 24 days of incident. They have 'denied the suggestion that their statements have been recorded after 24 days, inter alia, they have specifically deposed that their statements under Section 161 of the CrPC have been recorded within ten days of incident. They themselves have not informed the police, but they were called by the police. As per evidence of Lochan 11 b 12 (PW-8), police was camping a't the village for one month in relation to investigation of the offence, but within ten days any of the accused has not been arrested by the police and statements of these witnesses under Section 161 of the CrPC have not been recorded prior to 21-3-2006. Statement of accused Bodhram under Section 164 of the CrPC as Ex.P- 42 has been recorded on 20-3-2006 and thereafter, statements of these witnesses under Section 161 of the CrPC have been recorded. Delay