CRIMINAL APPEAL No.258 OF 1988 (DB) Against the judgment of conviction and order of sentence dated 28th April, 1988 passed in Sessions Trial No. 421 of 1983 by Sri Ghanshyam Prasad, 6th Additional Sessions Judge, Siwan. ************ 1. SHYAM SUNDARI DEVI WIFE OF MEWA GOND 2. VIDYAWATI DEVI W/O NICHHATAR, D/O MEWA GOND BOTH RESIDENT OF VILLAGE- KAROM, P.S.- DARAULI, DISTRICT- SIWAN………………………..APPELLANTS Versus STATE OF BIHAR ……………RESPONDENT ********************* For the Appellants :- Mr. Ranbir Singh, Amicus Curiae For the State :- Miss Shashibala Verma, APP *********************** P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH S. K. Sharma & D. K. Singh, JJ. Above named two appellants are assailing the judgment of conviction and sentence dated 28th April, 1988 passed by the learned 6th Additional Sessions Judge, Siwan in Sessions Trial No. 421 of 1983 whereby the appellant no. 1 has been held guilty for the offence punishable under Section 302 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for life whereas appellant no. 2 was convicted under Section 201 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for three years. 2. The prosecution case as per the fard-beyan of Reshmi Devi (PW 1) recorded on 22.12.1977 at 9.30 AM is to the effect that 2 on 19.12.1977 at 8 AM the informant was thrashing the paddy crop at the door of Sriram Ram (not examined). Informant’s two children, namely Lella @ Leelwa (PW 2) and Sukhat Gond (deceased) aged about two and half years were sitting near the informant. After sometime the informant’s daughter Leelwa (PW 2) left for plucking spinach (Sarso ka Saag) when the deceased Sukhat Gond also followed her. Informant’s daughter (PW 2) returned alone after one and half hours. When the inquiry was made by the informant about her son, then she (PW 2) conveyed that the deceased actually did not accompany her. Thereafter, the informant along with PW 2, Chandrashekhar Tiwary (PW 5), Naga Singh, Gautam Singh (both not examined) started searching the victim but he was not traced out. On next morning i.e. 20th September, 1977 at about 6 AM the informant heard about a dead body of a child lying in the drain of one Jagai Hazam (PW 3). Jagai Hazam raised alarm when he saw the legs of a child in the drain and informed his neighbours including PW 5 Chandrashekhar Tiwary and others. Chandrashekhar Tiwary (PW 5), Anirudh Tiwary (PW 6), Firangi Sah (PW 7) and Deena Nath Srivastava (PW 11) came at the spot when PW 11 Dhaneshwar Gond took out the dead body from the drain and kept the same at the door of Mukhiya Ramashankar Tiwary (not examined). The informant including his villagers identified the dead body to be of informant’s son Sukhad Gond. The injury on the dead body was visualized on the head and the neck. The further case of the prosecution is that 3 the appellants are the agnates of the informant with whom the informant is not on good terms as it is alleged in the FIR that the accused side poisoned the cow of the informant and lit fire the heap of straw of the informant much prior to the occurrence. Hence, on suspicion, accused Shyamsundari Devi and her daughter Vidyawati Devi were called on the spot and were interrogated by Chandrashekhar Tiwary (PW 5) and Anirudh Tiwary (PW 6) and Firangi Sah (PW 7) when both made extra judicial confession to the effect that Shyamsundari Devi killed the victim boy by strangulating him and thereafter, she directed her daughter appellant no. 2, Vidyawati Devi, to dispose of the dead body. Consequently Vidyawati Devi took the dead body of the child in a bucket and threw into the drain of Jagai Hazam (PW 3). It is also alleged in the First Information Report that on 19th December, 1977 at 10 PM Jagai Hazam (PW 3) was sitting at his door along with Jagai Gond (PW 4) while chewing Tobacco and both saw Vidyawati going near the drain with a bucket but she returned with empty bucket and on inquiry being made by PW 3 as to why she did not fetch water, she replied that the hand pump situated near the drain had gone out of order. It is also alleged that the accused side had threatened to kill the son of the informant. On the basis of the aforesaid fard-beyan Darauli P.S. Case No. 5 (12) of 1977 was registered on 20.12.1977 at 9.30 AM under Section 302 of the Indian Penal Code. 3. The police after investigation submitted charge sheet 4 and consequently cognizance was taken and the case was committed to the Court of Sessions. Charges were framed under Sections 302/34 of the Indian Penal Code. 4. In order to prove its case the prosecution has examined altogether 11 witnesses. Out of which PW 1 Reshmi Devi is the informant and mother of the deceased. PW 2 Leelwa is the daughter of the informant. Both PWs 1 and 2 claimed to have seen the dead body of the deceased very next day and raised suspicion against both the appellants. PW 3 Jagai Hazam and PW 4 Jagai Gond are the witnesses to the circumstances that appellant no. 2 was seen going near the drain at 10 PM on 19.12.1977 whereas PW 3 is also witness to the fact that he saw the leg of the child in the drain, next morning. 5. PW 4 Jagai Gond, PW 6 Anirudh Tiwary and Firangi Sah PW 7 are the witnesses to the recovery of the dead body and of the extra judicial confession made by the accused. 6. PW 8 Dr. Deena Nath Srivastava is the doctor who conducted post mortem and found two injuries on the body of the deceased. PW 9 Jitendra Narain Verma is a formal witness who has proved fard beyan (Ext. 3), a letter (Ext. 4) written by Bishwanath Singh to the effect that the Investigating officer Thakur Ram Chabila Singh is dead. Inquest report, production list (Ext. 5 and 6) and page 1 to 48 of the case diary of Daraunli P.S. Case No. 5 (12) of 1977 as Ext. 7. PW 10 Dhrub Shankar Singh is the person from the Malkhana, who proved Material Exhibits i & ii. PW 5 11 Dhaneshwar Gond is agnate of the informant who took out the dead body from the drain of PW 3. 7. Admittedly, there is no eye witness to the occurrence. The only circumstantial evidence is the alleged extra judicial confession of the accused persons. Relying upon the extra judicial confession the learned trial court held both the appellants guilty and passed the judgment of conviction and sentence accordingly. 8. Now this Court has to see whether the alleged extra judicial confession of the accused was voluntary or the prosecution has been able to prove this extra judicial confession beyond the shadow of all reasonable doubt. 9. PW 1 is the informant. Informant’s specific case is that she was thrashing the paddy at the door of Sriram Ram where both the children of the informant- PW 2 and the deceased were sitting. Srirram Ram has not been examined nor any witness around the door of Sriram Ram has been examined to suggest that the victim was sitting with the informant. The informant’s version appears to be unreasonable in view of the fact that the three years old child, who according to the informant, as deposed in paragraph 5, was not able to even walk properly, was allowed to follow PW 2- the daughter of the informant and when this fact was denied by PW 2 after one and half hours then search was made. So far as this part of the prosecution case regarding disappearance of the victim from the door of Sriram Ram is concerned; it has not been proved by the other prosecution witnesses except PW 1 and 2 as 6 rest of the witnesses are the witnesses to the recovery of the dead body of child or the search being made along with the informant subsequently. PWs 1 and 2 have further deposed with regard to the relationship with the appellants by giving illustrations of two occurrences- firstly that the appellant no. 1 got the informant’s cow poisoned and secondly that a heap of straw was put to fire at the behest of appellant no. 1, though no documentary proof has been brought with regard to aforesaid two allegations. Moreover it is admitted by them that no case was lodged with regard to the poisoning of the cow and PW 1 has stated that she has not informed the villagers about the said two occurrences. Though the informant and the appellants are agnates but the evidences of PWs 1 and 2 suggest that relationship was not cordial between them though they were partitioned. PWs 1 and 2 have not said anything about the extra judicial confession made by the accused persons in spite of the fact that other witnesses PWs 5, 6 and 7 in their evidence have accepted this fact that PWs 1 and 2 were present when the extra judicial confession was made. 10. PW 3 is the witness to the effect that on 19.12.1977 at 10 PM appellant no. 2 Vidyawati Devi was carrying a bucket and went near the drain of PW 3 and stayed there for sometimes and then she came back. On inquiry about non-bringing the water in the bucket, she replied that the hand-pump is not working. This witness has stated that in the moonlit night the appellant no. 2 had gone near the drain. PW 3 also saw the legs of the child in the 7 drain in the next morning and informed the witnesses. 11. PW 4 saw the appellant no. 2 in the night of 19th December, 1977 while sitting at the door of PW 3 and has deposed in the similar manner to that of PW 3 but in paragraph 4, he has specifically stated that the night was absolutely dark which contradicts the evidence in paragraph 3 of PW 3 that it was a moonlit night. The distance between the drain and the door of PW 3 has been described by the witnesses as 20 yards. 12. PWs 5, 6 and 7 are the witnesses of the extra judicial confession on the basis of which the prosecution has tried to prove its case. 13. The word “Confession” as defined in the Black Laws Dictionary is “a criminal suspect’s acknowledgment of guilt usually in writing and often including the details about the crime”. 14. Whereas the “Extra Judicial Confession” has been defined in Black Law Dictionary as “a confession made out of court, and not as a part of judicial examination or investigation. Such a confession must be corroborated by some other proof of the corpus deliciti or else it is insufficient to warrant a conviction.” 15. The extra judicial confession is a weak piece of evidence though it is permissible to rest conviction on extra judicial confession provided that the confessional evidence must be conclusively proved by any other fact and the value thereof depends upon the veracity of the witnesses to whom it was made. 16. There must be a reason for any person to confide in 8 the person to whom the extra judicial confession has been made. Confession is a kind of admission and has been dealt in Chapter II of the Evidence Act under Sections 17 to 31. The prosecution is not debarred from proving its case on the basis of circumstantial evidence. It has been consistently laid down by the Apex Court that when a case rests only 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. 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. 17. It is often said that though the witnesses may lie, circumstances will not, but at the same time it must cautiously be scrutinized to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. There can also be no hard and fast rule as to the appreciation of evidence in a case and being always an exercise pertaining to arriving at a finding of fact the same has to be in the manner necessitated or warranted by the peculiar facts and circumstances of each case. The whole effort and endeavour in the case should be to find out whether the crime was committed by the accused and the circumstances proved from themselves into a complete chain unerringly pointing to the guilt of 9 the accused. 18. In the case of Padala Veera Reddy Vrs. State of Andhra Pradesh and Others reported in 1989 supplementary (2) SCC 706 Paragraph-10 the Apex Court prescribed the four tests for resting any case on circumstantial evidence. Those tests are:- (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (iii) 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 (iv) 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 accused but should be inconsistent with his innocence. 19. In the case of C. Chenga Reddy and Others Versus State of A.P. reported in (1996) 10 SCC 193 paragraph 21 the Hon’ble Supreme Court held as follows: “In a case based on circumstantial evidence, the 10 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.” 20. The Apex Court in the case of State of U.P. Versus Ashok Kumar Srivastava reported in (1992) 2 SCC 86 has laid down the caution to be taken while evaluating the circumstantial evidences. Paragraph 9, reads follows: “Great Care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted.” 21. In view of the aforesaid parameters, we will reappraise the evidence particularly the evidences of PWs 5, 6 and 7 who are witnesses to the circumstantial evidence. From the scanning of evidences of PWs 5, 6, and 7, it is crystal clear that the statement of the accused which is treated to be extra judicial confession does not come within the purview of confession because it is a consistent case of the witnesses that on suspicion appellant no. 1 was called and then interrogated and the statement was extracted, as PW 5, in paragraph 3, has stated that appellant no. 11 1 was inquired by PWs 5, 6 and 7 when she came at the door of Mukhiya Ramashankar Tiwary (not examined) then appellant no. 1 accepted the guilt that she killed the victim and thereafter, she brought the bucket in which she put the dead body of the victim. Similarly PW 6, in paragraph 2, has stated that on suspicion the inquiry was made from both the appellants by PWs 5, 6 and 7, when both the appellants accepted that they have committed mistake as they have killed the boy by strangulating him and thereafter, appellant no. 1 directed appellant no. 2 to dispose of the dead body. 22. PW 7 has also stated in paragraph 1 that on inquiry the confession was made. The aforesaid depositions clearly suggest that the statement was extracted from the appellants and it was not voluntary. Hence, on that ground alone the statement, if any, of the appellants cannot be treated as extra judicial confession. It is well settled law that a person confesses to someone in whom he confides, it is an admitted case of the witnesses that they are somehow related to the informant and the informant had no good relation with the family of accused. Hence, the depositions of the prosecution witnesses suggest the extra judicial confession not only unreasonable but improbable. The voluntary nature of confession gets clouded from the evidence of the prosecution witnesses as PW 5, in paragraph 6, has stated that appellant no. 1 was given threat of life and she got scared and then she made the confession. Similarly, PW 6, in paragraph 4, has stated that if the 12 appellant will disclose the truth then she will be relieved otherwise she will be punished which suggest that not only threat was given but it was in the nature of inducement. Hence, on this score the alleged extra judicial confession cannot be treated as voluntary confession. 23. So far as manner of extra judicial confession being made by the accused is concerned there also the witnesses are inconsistent. As PW 5, in paragraph 6, has stated that the confession was reduced in writing and the same was handed over to the Investigating Officer, whereas PW 5, in paragraph 7, has stated that the Investigating Officer made interrogation from the appellants but both the appellants did not say anything to the I. O. PW 6, in paragraph 6, has stated that the confession was not reduced in writing. Moreover, this witness has stated that the accused confessed the guilt before the Investigating Officer. PW 7, in paragraph 3 of his evidence, has stated that the confession of the appellants were reduced in writing by the I. O. himself but no such written confession has been brought on record nor any effort has been made by the prosecution to prove the same. Inconsistencies of all the three witnesses (PWs 5, 6 & 7) cloud the very existence of the extra judicial confession. 24. PW 5, in paragraph 3, has stated that only appellant no. 1 has confessed and she did not say about the involvement of appellant no. 2. Whereas PW 6, in paragraph 2, has accepted that confession was made by both the appellants and PW 7, in 13 paragraph 1, has stated that only Shyamsundari Devi confessed. Hence, the prosecution witnesses are inconsistent with regard to the fact that whether the confession was made by both the appellants or by appellant no. 1 only. Hence, considering the evidence of PWs 5, 6 and 7, we are of the view that the so called extra judicial confession is not a confession at all in the eye of law as it is not voluntary. Moreover, the circumstances of extra judicial confession have not been cogently and firmly established. 25. The prosecution has tried to prove only two circumstances; first is the extra judicial confession of the accused and secondly appellant no. 2 being seen carrying a bucket near the drain by PW 3 on 19.12.1977 at 10 PM but both the circumstances have not been established. Moreover, both the circumstances are not connected to each other and have no definite tendency unerringly pointing towards the guilt of the accused. As the both circumstances taken cumulatively have not formed a chain so complete that there is no escape from the conclusion that within all human probabilities the crime was committed by the appellants and none-else. 26. After screening of the evidences, we find that the circumstantial evidences put forward by the prosecution are neither conclusive in nature nor consistent. They are totally inconsistent with the hypothesis of guilt of the appellants. 27. The doctor (PW 8), who conducted the post mortem has found following two injuries: 14 “(i) one incised wound ¼” x 1/6” x scalp deep over the left perital region of the head and (ii) one bruise injury across the front part of the neck 1 ½ “ x ¾” more of right side than on left side.” 28. The injury found by the doctor is inconsistent with the so-called extra judicial confession of the accused, as the prosecution has alleged that the appellants have only confessed to the effect that the victim was strangulated but confession does not visualize the incised injury on the head. Hence, on this score also the alleged confession does not lead to the conclusive prove with regard to the guilt of the accused persons. The post mortem report (Ext. 2) is in contradiction to the inquest report (Ext. 5) which reflects bleeding injuries from mouth and nose and further fracture injury in the left hand. But all these contradictions have not been considered by the learned trial court, since the Investigating Officer could not be examined due to his death. These contradictions surely cloud the manner of the occurrence as alleged by the prosecution. 29. So far as the place of occurrence is concerned the evidences of prosecution witnesses do not reflect, as to where the victim was done to death, as the so-called extra judicial confession also does not reflect as to where the victim was strangulated and the trial court only could fix second place of occurrence from where the victim’s dead body was recovered i.e. drain of PW 3 but 15 the actual place where the victim was assaulted, neither it has been suggested by any prosecution witnesses nor it has been proved by the prosecution and here non-examination of the Investigating Officer has definitely created a hole in the prosecution case and naturally the benefit flowing from that hole has to be conferred to the accused persons. 30. Learned counsel for the appellants has suggested that the prosecution has tried to prove the extra judicial confession on the basis of evidences of PWs 5, 6 and 7, whereas PW 7, in paragraph 4, has stated that he was never examined under Section 161 of the Code of Criminal Procedure. Similar is the statement of PWs 3 and 4, who are witnesses to the other circumstance of seeing the appellant no. 2 carrying a bucket near the drain in the night of 19th December, 1977. PW 3, in paragraphs 4 and 6 and PW 4, in paragraph 4, have stated that their statements were never recorded by the police and they are for the first time deposing before the Court. Hence, on this score alone the prosecution has failed to prove these circumstances. On this point reliance has been placed on the ratio laid down in the case of Maga Ram Rajak and Others Versus State of Bihar reported in BLJ 1985 (8) 44. Paragraph 3 of the judgment stipulates that the witness never examined by the police during the course of investigation, his evidence in court for the first time has no consequence. 31. We agree with the contention of the learned counsel 16 for the appellants that the evidences of PWs 3, 4 and 7 has no relevance and has not to be considered, since they have not been examined by the police under Section 161 of the Code of Criminal Procedure. Specifically, the only circumstance, on basis of which the prosecution tried to prove its case, is the extra judicial confession made by the accused persons. Statement recorded under Section 313 Cr.P.C. of the appellants