HIGH COURT OF CHHATTISGARH AT BILASPUR @ D.B.: Hon'ble Shri Justice Sunil Kumar Sinha and Hon'ble Shri Justice Radhe Shvam Sharma Criminal Appeal No.683/1996 Santram versus The State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT FOR CONSIDERATION Sd/- R.S. Sharma Judge Hon'ble Shri Sunil Kumar Sinha. J.: ^_^2r^e— Sd/- Sunil Kumar Sinha Judge Postfor^O-10-2011 Sd/- R.S. Sharma Judge \^^ ,,-^" HIGH COURT OF CHHATTISGARH AT BILASPUR DB: APPELLANT Hon'ble Mr. Sunil Kumar Sinha & Hon'ble Mr- Radhe Shvam Sharma, JJ. Criminal Appeal No.683/1996 Santram, S/o. Shiva Yadav, aged about 30 years, R/o. Darripara (Naila), P.S. Janjgir, District Bilaspur (Now District Janjgir- Champa) (Chhattisgarh) Vs. RESPONDENT The State of Madhya Pradesh (Now State of Chhattisgarh) through P.S. Janjgir, District Bilaspur (Now District Janjgir- Champa) (Chhattisgarh) (Criminal Appeal under Section 374(2) Cr.P.C.) Present: Smt. Uma Tiwari, counsel for the appellant. Shri Ajay Dwivedi, Dy. Govt. Advocate for the State/respondent. JUDGMENT (.^Q^0ctober,2011) Per Radhe ShyamSharma, J-: This appeal is directed against the judgment dated 18 January, 1996 passed by the Additional Session Judge, Sakti, Camp Janjgir, District Bilaspur (Now District Janjgir-Champa) in Session Trial No.332/1992. By the impugned judgment, appellant Santram has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life. 2. The facts, briefly stated, are as under:- Deceased Fagni Bai was mother of the appellant and the deceased and the appellant were residing together in a house at Darripara (Naila). On the fateful day, i.e., 18.2.1992, one Gendram Chouhan came to the house of Ram Gopal Yadav (PW-1) and told him that he knocked the -»-\ %^"fs^ 1 ^&ss^^ i e Criminal Appeal No. 683 of 1996 door of the appellant's house, but the appellant did not open the door. On hearing this, Ram Gopal Yadav (PW-1) along with his father Nandu Ram (PW-5) went to the house of the appellant and knocked the door. The appellant opened the door. On being asked by Ram Gopal Yadav (PW-1) about deceased Fagni Bai, the appellant told them that he has killed his mother and has hidden her dead body under the straw. When they removed the straw, they saw dead body of the deceased. Thereafter, Ram Gopal Yadav (PW-1) lodged First Information Report (Ex-P/1) in Police Station Janjgir. The Investigating Officer reached the place of occurrence, gave notice (Ex-P/2) to 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 examination to Primary hlealth Centre, Janjgir vide Ex-P/6. The post mortem was conducted by Dr. U.C.Sharma (PW-6), who gave his report Ex-P/7, in which, he found a contusion, 4cmsx4cms on the occipital region and a fracture on base of the skull. He opined that the cause of death was haemorrhage and shock as a result of injury to the brain due to fracture ,on the base ofthe skull. In further investigation, axe, basula, sickle and lathi were seized from the appellant vide Ex-P/5. Seized articles were sent for examination to Dr. U.C.Sharma (PW-6), who gave his report vide Ex-P/8. Patwari Kashi Prasad Sharma (PW-7) prepared site map vide Ex-P/9. After completion of the investigation, charge-sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Janjgir, who, in turn, committed the case to the Court of Session, from where, it was received on transfer by the Additional Session Judge, Sakti, Camp Janjgir, /1^ Criminal Appeal No. 683 of 1996 who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Smt. Uma Tiwari, learned counsel for the appellant argued that the finding recorded by the Additional Session Judge is based on the evidence of last seen together and extra-judicial confession, which are not proved beyond reasonable doubt. The finding of the learned Additional Session Judge is perverse and not sustainable. She further argued that even strong suspicion is no substitute for a proof, therefore, finding recorded by the learned Additional Session Judge is not sustainable. Hence, the appellant deserves to be acquitted of the charge framed against him. 4. On the contrary, Shri Ajay Dwivedi, learned Deputy Government Advocate for the State/respondent, supporting the impugned judgment of conviction and sentence, argued that the prosecution witnesses are natural witnesses and their testimonies arewholly reliable and the prosecution has proved the circumstantial evidence and extra-judicial confession by cogent and reliable evidence. 5. We have heard learned counsel for the parties at length and have perused the impugned judgment as also the evidence available on record. 6. Admittedly, there is no eyewitness to the incident and the case of the prosecution is based on circumstantial evidence and extra-judicial confession. The main circumstances, which the Additional Session Judge appears to have taken note, are as under: (i) This is the house murder, where the appellant and the deceased were residing together. L. -b Criminal Appeal No. 683 of 1996 (ii) The deceased and the appellant were last seen together in their house. (iii) The dead body of the deceased was recovered from their house, which was hidden under the straw. (iv) Extra-judicial confession made bythe appellant. 7. It is well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstance from which the conviction of guilt is to be proved should be fully established. It is also well settled that suspicion, however grave it may be, cannot be substitute for a proof and the Court should take utmost precaution in finding an accused guilty only on the basis ofthe circumstantial evidence. 8. In Paramjeet Singh alias Pamma vs. State of Uttarakhand, (2010)10 SCC 439, the Hon'ble Supreme Court observed thus: "13. Though a conviction may be based solely on circumstantial evidence, this is something that the court must bear in mind while deciding a case involving the commission of a serious offence in a gruesome manner. In Sharad Birdhichand Sarda v. State of Maharasthra, (1984) 4 SCC 116 ; 1984 SCC (Cri) 487: AIR 1984 SC 1622, this Court observed that it is well settled that the prosecution's case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence put up by the accused. However, a false defence may be called into aid only to lend assurance to the court where various links in the chain of circumstantial evidence are in themselves complete. This Court also discussed the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone and held as under: (SCC p.185, para 153) .^.^^•^r^^ ^'.^^ik ';^., x^-/ Criminal Appeal No. 683 of 1996 "(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, (2) 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 is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) 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 show that in all human probability the act must have been done by the accused." 9. In State of Uttar Pradesh vs. Ram Balak and another, (2008) 15 SCC 551, the Hon'ble Supreme Court observed thus: "11. "9. it has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of ' any other person. (See Hukam Singh v. State of Rajasthan, (1977) 2 SCC 99, Eradu v. State of Hyderabad, AIR 1956 SC 316, Earabhadrappa v. State of Karnataka, (1983) 2 SCC 330, State ofU.P. v. Sukhbasi, 1985 Supp SCC 79, Balwinder Singh v. State of Punjab, (1987) 1 SCC 1, and Ashok Kumar Chatterjee v. State of M.P., 1989 Supp (1) SCC 560) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State ofPunjab, AIR 1954 SC 621, it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must -€,^^ '/ &,. .;^"'' Criminal Appeal No. 683 of 1996 be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt. 10. We may also make a reference to a decision of this Court in C. Chenga Reddyv. State ofA.P., (1996) 10 SCC 193, wherein it has been observed thus: (SCC pp. 206-07, para 21) '21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence." 10. In Padala Veera Reddy vs. State of Andhra Pradesh and others, AIR 1990 SC 79, the Hon'ble Supreme Court observed thus: "10. .......... This Court in a seriesof decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests:- (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) 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 none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the ^:^". ',1 ,'1 ^^,-...^--"^ ^ ^' Criminal Appeal No. 683 of 1996 accused but should be inconsistent with his innocence. 11. In Ramreddy Rajesh Khanna Reddy and another vs. State ofA.P., (2006) 10 SCC 172, the Hon'ble Supreme Court has held thus: "27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration." (See also Inspector of Police, Tamil Nadu vs. John David, (2011) 5 SCC 509 and State of U.P. vs. Satish, (2005) 3 SCC 114). 12. Now, we shall proceed to examine the circumstantial evidence adduced by the prosecution in order to prove the guilt of the appellant and to see whether prosecution has been able to prove its case in conformity with the above principles. ( 13. So far as the circumstance that it is the house murder and that too where the appellant and the deceased were residing together is concerned, it is not disputed that the deceased was the mother of the appellant and they were residing together in the same house. It is also not disputed that the death of the deceased was homicidal in nature. 14. Ram Gopal Yadav (PW-1) deposed that on the fateful day, at about 8.00 a.m., Gendram Chouhan came to his house and told him that the house of the appellant is closed from inside and he had knocked the door but it was not opened. On hearing this, he went to the house of the ^^^ ^ r: 8 Criminal Appeal No. 683 of 1996 appellant along with his father Nandu Ram Yadav (PW-5). When he knocked the door, the appellant opened it. He asked about his mother. The appellant told him that "sft^fT ^IR ^ wt ^f^f\ On beingasked, he indicated towards the straw. Thereafter, he (Ram Gopal Yadav - PW-1) removed the straw and found that dead body of deceased Fagni Bai was lying there. She had sustained injuries on her face and head. He lodged the FIR (Ex- P/1) in Police Station Janjgir. 15. Nandu Ram Yadav (PW-5) deposed that the appellant is his cousin brother and the deceased was his aunt. When the appellant opened the door of his house, he asked him about his mother. The appellant told him that "3^ V7 ^ ^- ^f^Ff'. He further deposed that the dead bpdy of the deceased was taken out from the house of the appellant. Nandu Ram Yadav (PW-5) was declared hostile by the prosecution, but his evidence was not discarded in toto. In Paramjeet Singh alias Pamma vs. State of Uttarakhand (supra), the Hon'ble Supreme Courtobserved thus: "17. This Court while deciding the issue in Radha Mohan 1 Singh v. State of U.P., (2006) 2 SCC 450: (2006) 1 SCC (Cri) 661, observed as under: (SCC p.457, para 7) "7. ...... It is well settled that the evidence of prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross- examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof." 16. In view of the above, it is evident that the evidence of Nandu Ram Yadav (PW-5) does not become effaced from the record merely because he facs\ ^sa^l ^ M ^;^^ Criminal Appeal No. 683 of 1996 had turned hostile and his deposition must be examined more cautiously to findout as to what extent he supported the case of theprosecution. Therefore, the evidence of Nandu Ram Yadav (PW-5) is relied on to that extent which is supporting the prosecution case. 17. P.R. Kashyap (PW-9) deposed that Ram Gopal Yadav (PW-1 ) lodged the FIR (Ex.P-1) and he registered Crime No.46/92 under Section 302 IPC. In the FIR (Ex.P-1), it is reported that "sftvfT ^JR ^ ^ ^f^f'. These words J mentioned in the FIR (Ex.P-1) indicates extra-judicial confession ofthe appellant. Thereafter, he rushed the place of occurrence and prepared inquest (Ex.P- 3). The dead body of the deceased was lying under the straw in the house of the appellant and it was taken out from the straw. 18. Patwari Kashi Prasad Sharma (PW-7) deposed that he inspected the place of occurrence and prepared site map vide Ex-P/9. In the site map (Ex- P/9), place of occurrence is described as courtyard of the house, which is surrounded by a wall. Door of the house was closed from inside, where only the appellant was present and the dead body of the deceased was found hidden under the straw. Therefore, in this situation, it was not possible for anybody to enter the closed house and commit murder of the deceased. The appellant has given explanation in statement under Section 313 Cr.P.C. that some other person murdered his mother. The appellant never disclosed this fact to anybody, therefore, the explanation offered by him is not acceptable. 19. From the statement of the above prosecution witnesses, it is crystal clear that the dead body of the deceased was taken out from the courtyard of the house, where the deceased and the appellant were residing together. y^^ "% ^ %^w/ '^. •^^;?>" ^ ^' ^ 10 Criminal Appeal No. 683 of 1996 From the statement of Ram Gopal Yadav (PW-1) and Nandu Ram Yadav (PW-5), it is evident that the deceased was last seen alive in the company of the appellant. There is no reason why Ram Gopal Yadav (PW-1) and Nandu Ram Yadav (PW-5) will falsely implicate the appellant. After knocking the door of the house of the appellant, the appellant himself opened the door. On being asked about his mother, he indicated towards the straw, whereunder the dead body of his mother was hidden. The appellant did not offer any explanation in this regard. 20. So far as the extra-judicial confession is concerned, Ram Gopal Yadav (PW-1) specifically deposed that on being asked about the mother of the appellant, he told that "sr^fr w^^ ^f^f'. Nandu Ram Yadav (PW-5) also deposed in same fashion. It means, the appellant made extra-judicial confession before these witnesses that he killed his mother. 21. In Bhagwan Dass vs. State (NCT) of Delhi, (2011) 6 SCC 396, the Hon'ble Supreme Court observed that an extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value ofthe evidence as to 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. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speakof such a confession. Such a confession can be relied upon and conviction can be founded thereon if the I- .^." "fe^—'"'..<? "%;^ • 'w''^ ..^' ^ 11 Criminal Appeal No. 683 of 1996 evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility. 22. In the instant case, it is proved that the appellant made extra-judicial confession before Ram Gopal Yadav (PW-1) and Nandu Ram Yadav (PW- 5). Nandu Ram Yadav (PW-5) is cousin brother of the appellant and Ram Gopal Yadav (PW-1) is son of Nandu Ram Yadav (PW-5). Both these witnesses are nearest relative of the appellant and in this situation, making of extra-judicial confession by the appellant before them is natural. The 'evidence ofthese witnesses are also corroborated by the FIR (Ex.P-1). 23. It is not disputed that the deceased was murdered in her house and the appellant and the deceased were residing together in the same house. One of the circumstances which is relevant is that the deceased and the appellant were last seen together in the premises, where an outsider could not have access. When Ram Gopal Yadav (PW-1) and Nandu Ram Yadav (PW-5) came to the house of the appellant, the house was closed from inside. On knocking the door, the appellant opened it and the dead body of the deceased was found to be hidden under the straw in the house, which ^5\ 12 Criminal Appeal No. 683 of 1996 was in exclusive possession of the appellant. Therefore, it is for the appellant to explain the unnatural death of his mother in his house. At the time of the occurrence, the appellant and the deceased were together in the house. The death ofthe deceased was homicidal. 24. Once the prosecution has been able to show thatat the relevant time, the house was in exclusive possession of the appellant, burden of proof lay upon the appellant to show under what circumstances the death of the S deceased occurred. The onus was on the appellant and he failed to discharge the same. The appellant offered a belated explanation at the trail that his mother was murdered by some other person. In view of the medical evidence, the extra-judicial confession made by the appellant and the circumstance of recovery of dead body of the deceased from the house of the appellant, the explanation offered by the appellant is not acceptable. 25. In view of the extra-judicial confession made by the appellant before Ram Gopal Yadav (PW-1) and Nandu Ram Yadav (PW-5), homicidal death of the deceased and the circumstance that the deceased and the appellant were residing together in the house, where an outsider could not have access, possibility of any outsider committing the offence is unacceptable. The appellant could not explain the homicidal death of his mother in his house. Absence of explanation by the appellant in this regard would lead to an inference against the appellant. 26. After going through the entire evidence available on record, we are of the view that there is enough evidence that it is none else but the appellant, who caused the murder of the deceased. In our considered opinion, the prosecution has established its case on the basis of extra-judicial r i''y:y^-.v'^ 13 Criminal Appeal No. 683 of 1996 confession and on the above circumstantial evidence and there cannot be any other possibility or plausible view favouring the appellant. 27. For the foregoing reasons, we find no substance in the appeal, which deserves to be and is accordingly dismissed. Sd/- Sunil Kumar Sinha Judge Bini/Gopal Sd/- R.S. Sharma Judge