CRIMINAL APPEAL No.430 OF 1988 ***** Against the judgment of conviction and order of sentence dated 24th of June, 1988 passed by Shri Kashi Nath Roy, 6th Additional Sessions Judge, Bhagalpur in Sessions Trial No. 273 of 1985. JUGAL PASWAN, SON OF KARTIK PASWAN, RESIDENT OF VILLAGE SARUP CHAK, POLICE STATION SABOUR, DISTRICT-BHAGALPUR. -----------------(Appellant) Versus The State of Bihar --------------(Respondents) For the Appellant : Mr. Shakil Ahmad Khan (Sr. Adv.) For the State : Ms. Shashi Bala 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. The sole appellant has challenged the judgment and order of conviction and sentence dated 24th of June, 1988 passed by Shri Kashi Nath Roy, learned 6th Additional Sessions Judge, Bhagalpur in Sessions Trial No. 273 of 1985 whereby and whereunder the appellant has been held guilty for the offence under Sections 302/34, 364/34, 201/34 of the Indian Penal Code, convicted accordingly and sentenced to undergo rigorous imprisonment for life under Section 302/34, rigorous imprisonment for ten years under Section 364/34 and rigorous imprisonment for two years under Section 201/34 of the Indian Penal Code. However, all the sentences were directed to run concurrently. 2 2. The prosecution case started rolling with the fardbeyan of Prayag Mandal P.W. 10 recorded by the S.I. Arvind Singh P.W.3 of Mahagama police station on 06.01.1984 at 11 A.M. in presence of Satya Narain Singh, Amrendra Kumar Singh and Gopal Prasad Singh (all not examined) to the effect that on 05.01.1984 Gopal Mandal (dead), Jugal Paswan (present appellant) took Baboo Lal Mandal (deceased) to Murhan Hat and therefrom to Telwara for purchasing ox. On 06.01.1984 in the morning Gopal Mandal and Jugal Paswan came back to the village. When the informant and others inquired about Baboo Lal Mandal (deceased) then both of them replied that victim never went with them and suggested that victim might had gone to participate in some feast. Thereupon the informant and other villagers started assaulting the present appellant and Gopal Mandal. Then both of them disclosed that Baboo Lal Mandal has been killed and his dead body has been thrown near Hanwara Ghat. Thereafter both the accused persons were taken to Sabour police station by the local chowkidar and few villagers. Thereafter, the informant and others went to locate the dead body and on location of the dead body, it was identified to be of Baboo 3 Lal Mandal. It is further alleged that in the Murhan Hat area, Ganga Keshri and Sant Lal Yadav (both not examined) and others saw the two accused persons in the company of the deceased. Hence, it was claimed by the informant that both the two accused persons by throttling killed the informant‟s nephew but the two accused have not disclosed the name of their other two associates. On the basis of the aforesaid fardbeyan (Ext. 1), Sabour P.S. Case No. 8 of 1984 was registered under Sections 364/302/34 of the Indian Penal Code on 07.01.1984 at 8.00 p.m. 3. The police after investigation, submitted charge sheet against the two accused persons Gopal Mandal and Jugal Paswan. Subsequently, the cognizance was taken and the case was committed to the Court of Sessions where the charges were framed under Sections 302/34, 364/34 and 201/34 of the Indian Penal Code. 4. The prosecution in order to substantiate the charges, examined altogether 12 witnesses, of which P.W.1 Gulabi Mandal (father of the deceased), P.W.2 Indu Devi (wife of the deceased), P.W.3 Arvind Singh police officer posted at the relevant time in Mahagama 4 police station who went to seize the dead body on the information supplied by the chowkidar Ashwini Kumar Das (not examined). P.W.4 Arjun Mandal is a witness only to the alleged extra judicial confession. P.W.5 Girdhari Mandal has been tendered, who happens to be the brother of the deceased, P.W.6 Kuldeep Prasad Singh is the Mukhiya of the Gram Panchayat to whom the appellant confessed. P.W.7 Shanti Yadav has not supported the factum of ever seeing the deceased in the company of the accused prior to the occurrence, hence, he has been declared hostile. P.W.8 Kaloo Murmu is a formal witness who has proved the signature of Ainul Khan, writer constable on Sanha Diary Entry No. 110 of 1984 dated 06.01.1984 (Ext.4). P.W.9 Dr. B.P. Singh who conducted the autopsy over the dead body of Baboo Lal Mandal on 08.01.1984. P.W.10 Prayag Mandal is the uncle of the deceased and the informant who claims himself to be witness of extra judicial confession, last seen and the recovery of the dead body. P.W.11 is Chhathoo Prasad Sah who has stated that his statement was not recorded by the police and has been declared hostile. P.W.12 Nand Lal Paswan is the Investigating Officer of the case. 5 5. Admittedly, there is no eye witness to the occurrence and the prosecution case is based upon the two circumstantial evidences, firstly, the victim was last seen in the company of the appellant and one Gopal Mandal, secondly, the appellant and Gopal Mandal made an oral extra judicial confession before P.Ws.1, 2, 4 and 10. 6. The learned trial court held the appellant guilty. The other accused Gopal Mandal has died during the trial. On the basis of the aforesaid two circumstantial evidences the trial court had passed the order of conviction and sentence as stated above. 7. Now, in the present appeal, we have to see whether the two circumstantial evidences on the basis of which the prosecution tried to prove its case has conclusively been proved beyond shadow of reasonable doubt or the so called extra judicial confession was made voluntarily or extracted by inducement, threat or promise made it irrelevant for proving the prosecution case as envisage under Section 24 of the Evidence Act. 8. The specific case of the prosecution is that on 05.01.1984 the appellant and Gopal Mandal came and persuaded the deceased Baboo 6 Lal Mandal to go in their company, when Baboo Lal Mandal left home in the company of the two accused persons on the same day in the night Gopal Mandal and the present appellant returned to their village home whereas Baboo Lal Mandal did not return, then the enquiries were made from both the accused persons who denied to have gone in company of the deceased. Thereafter, they were assaulted and the local Mukhiya was called and after interrogation, the accused persons admitted to have killed Baboo Lal Mandal and thrown the dead body in the maize field of Murhan Hat. Thereafter, both the accused were sent to Sabour police station with the local chowkidar and other villagers and the informant went to Murhan Hat where the dead body of the victim Baboo Lal Mandal was located, when fardbeyan of P.W. 10 Prayag Mandal was recorded on 06.01.1984 at 11 a.m. whereas in the formal part it has been recorded as 07.01.1984 at 8.00 p.m. 9. Though, from the perusal of the Sanha Diary Entry Ext.4, it appears that cognizable offence was reported but even then First Information Report was not registered. An explanation has come in the evidence of the investigation officer P.W.12 in Paragraph-6 7 that since the cognizable offence was only suspected, hence, no First Information Report was registered. This part of evidence of the investigating officer clouds the Sanha Diary Entry, because the Sanha Diary Entry reflects the commission of the cognizable offence hence either the police officers could not understand the purport of Sanha Diary Entry, or the contents of the Sanha Diary Entry, were subsequently interpolated but both the eventualities create serious doubt about prosecution version. 10. So far as the circumstance of last seen is concerned P.W.1 in Paragraph-1 has stated that the two accused persons used to ask the victim for going in their company, ultimately the victim left the house in the company of the two accused persons on 05.01.1984(Thursday). This witness has not stated that who else saw the victim going in the company of the appellant and Gopal Mandal. P.W.2 who is the wife of the victim has also stated that the appellant and Gopal Mandal took her husband. But she has also not stated that who else saw the victim going in the company of the appellant and other and has also not suggested the presence of P.W.1 at that point 8 of time. P.W.10 in Paragraph-3 has stated that the victim went in the company of the appellant and Gopal Mandal when Shiv Nath Mandal, Bhola Mandal, Chhabinath Mandal (all not examined) and Gulabi Mandal P.W.1 were present. Hence, P.W.10 rules out the presence of P.Ws. 2, 7 and 11 when the victim left his house in company of accused persons but the witnesses present as canvassed by P.W.10 were either not examined or have gone hostile. Admittedly, the circumstance of the last seen has not been proved by the prosecution by any independent witness which appears unreasonable in view of the prosecution case that the victim not only left the house in afternoon but he went to two different villages in the company of the appellant and other accused. Though, during investigation two independent witnesses (P.Ws.7 and 11) claim to have last seen the victim in company of the appellant and other accused but both of them have gone hostile. 11. The last seen theory comes into play where the time gap between the point of time when the accused together with deceased were last seen alive and when the deceased is found dead is so small that the possibility of any person other than the accused being the author 9 of the crime becomes impossible. It will be difficult for such cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons going in between. In the absence of any other positive evidence that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in such cases. In the present case the victim alleged to have left his house in company of the appellant and others in the afternoon of 05.01.1984. It is the prosecution case that the appellant and the Gopal Mandal returned to village home in the same night or next morning. Whereas the victim‟s body appears to have been recovered on 06.01.1984 on late night as P.W. 10 in para-7 of his evidence has stated that he reached near the dead body at 10 P.M. this part of evidence of P.W. 10 clouds the very fardbeyan which was recorded on 06.01.1983 at 11 A.M. after recovery of dead body. Hence it cannot be treated to be a small gap of time between the last seen and the recovery of the dead body. 12. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is 10 especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company with the deceased. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. 13. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 of Evidence Act does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are especially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any 11 explanation, as an additional link which completes the chain. 14. But in the present case the prosecution has tried to prove the case by virtue of two circumstantial evidences without having any direct evidence or completion of the chain of the circumstances. The appellant was confronted with the circumstances of last seen when he was examined under Section 313 of the Code of Criminal Procedure but has denied to have gone in the company of the deceased. This fact has been admitted by the informant in the First Information Report that initially the appellant and other accused denied to have gone in the company of the victim. Hence, in our view the circumstances of last seen has not been proved by the prosecution beyond shadow of all reasonable doubt. 15. The word “confession” has been defined by Black‟s Law Dictionary as criminal suspect‟s acknowledgement of guilt usually in the writing and often including the details about the crime. 16. The “extra judicial confession” has been defined in Black‟s Law Dictionary as a confession made out of court and not as a part of the judicial examination or investigation. 12 Such a confession must be corroborated by some other proof of the corpus delicti or else it is insufficient to warrant a conviction. Admittedly the oral confession is also admissible but the judicial process usually give weightage to the confession in writing. In the present case, the prosecution has relied upon the oral confession of the accused persons. 17. Confession is a terminology used in criminal law is a species of “admissions” as defined in Section 17 of the Evidence Act. An admission is a statement oral, or documentary which enables the court to draw an inference as to any fact in issue or relevant fact. It is trite to say that every confession must be necessary by an admission, but every admission, does not necessarily amounts to a confession. Confessions are considered highly reliable because no rational person would make admission against his interest unless promoted by his conscience to tell the truth. Deliberately and voluntarily confessions of guilt, if clearly proved are among the most effectual proofs in law. However, before acting upon a confession the courts must be satisfied that it was freely and voluntarily made. A confession by hope or 13 promise of advantage, rewarded or immunity or by force or by fear induced by violence or threat of violence cannot constitute evidence against the maker of the confession. 18. In the fardbeyan the informant‟s specific case is that the informant and other villagers assaulted the accused persons and then the confession was extracted. Apart from this P.W.1 in Paragraph-12 has stated that the appellant and others were detained by the informant and the other villagers. The enquiries were made but the appellant and others refused to disclose anything then the Mukhiya was called and the said Mukhiya subsequently extracted the alleged confession. P.W.1 in Paragraph-14 has admitted that the accused were tied in rope before taking to the police station. The accused were also assaulted, gets reflected from the averment in the Sanha Diary Entry (Ext.4). P.W.6 in Paragraph-7 has admitted that someone has slapped the appellant in his presence before his statement was extracted. P.W.12, the investigating officer, in Paragraph-10 of his evidence has admitted that P.W.1 conveyed to him that the confession was obtained on threat by the villagers and Mukhiya. The defence has 14 also given such suggestions of coercion and assault to almost all prosecution witnesses during their cross-examination. Hence, in view of the prosecution evidence itself it cannot be said that in the present case the confession was voluntary. Though, the learned trial court has admitted that during interrogation the accused confessed the guilt. In our view, the learned trial court has erred in holding interrogated statement of accused as „confession‟. During interrogation if some statement is extracted from the accused persons that cannot be treated as confession. Confession must always be voluntary and a person usually only confesses before a person to whom he confides. This basic pre-conditions of the confession was reiterated by the Apex Court in the case of Bharat Vrs. State of Uttar Pradesh reported in 1971 3 SCC 950 Paragraph-7 in following words:- “Confessions can be acted upon if the court is satisfied that they are voluntary and that they are true. The voluntary nature of the confession depends upon whether there was any threat, inducement or promise and its truth is judged in the context of the entire 15 prosecution case. The confession must fit into the proved facts and not run counter to them. When the voluntary character of the confession and its truth are accepted, it is safe to rely on it. Indeed a confession, if it is voluntary and true and not made under any inducement or threat or promise, is the most patent piece of evidence against the maker. Retracted confession, however, stands on a slightly different footing. As the Privy Council once stated, in India it is the rule to find a confession and to find it retracted later. A court may take into account the retracted confession, but it must look for the reasons for the making of the confession as well as for its retraction, and must weigh the two to determine whether the retraction affects the voluntary nature of the confession or not. If the court is satisfied that it was retracted because of an afterthought or advice, the retraction may not weigh with the court if the general facts proved in the case and the tenor of the confession as made and the circumstances of its making and withdrawal warrant its user. 16 All the same, the courts do not act upon the retracted confession without finding assurance from some other sources as to the guilt of the accused. Therefore, it can be stated that a true confession made voluntarily may be acted upon with slight evidence to corroborate it, but a retracted confession requires the general assurance that the retraction was an afterthought and that the earlier statement was true.” 19. With regard to the confession, the prosecution evidences are also inconsistent. As P.W.1 in Paragraph-2 has stated that he enquired from the appellant and Gopal Mandal twice. In Paragraph-3 this witness has stated that both the accused persons confessed when the local Mukhiya (P.W.6) came and made the enquiry. This witness has stated (in Paragraph- 6) that the confession was made in presence of P.W.1, P.W.2 and the mother of the deceased who has not been examined. P.W.2 has stated in Paragraph-7 that the initial enquiry from the accused was made by P.W.1. Though, in Paragraph-10, P.W. 2 has stated that the Mukhiya (P.W.6) was called and then the confession was made Mukhiya (P.W.6) has 17 admitted in paragraphs 1 and 2 of his evidence that he made enquiry from Jugal Paswan. Hence, the evidences of P.Ws. 1, 2 and 6 have conclusively proved that the so called extra judicial confession of the appellant was not voluntary but on persistent interrogation, coercion and threat. 20. It is admitted case that the extra judicial confession was made by the accused persons in the orchard. The evidence of the P.W.6 in Paragrpah-6 reflects that the orchard was situated outside of the village. In view of the evidence of P.W.2 in Paragraph-7 that she was unable to walk due to serious illness hence she did not go to the house of the accused persons in the neighbourhood but so far as the factum of confession is concerned she claims to be present in the orchard which makes the credibility of this witness doubtful. 21. P.W.4 has initially stated that both Jugal Paswan and Gopal Mandal confessed whereas subsequently classified that Jugal Paswan did not make specific confession.P.W.6, Mukhiya has deposed in Paragraphs 1 and 2 that he made only enquiries from Jugal Paswan (appellant) on 06.01.1984 at 1.30-2.00 p.m. in the orchard. Whereas the informant (P.W.10) in Paragraph-4 18 has stated that the first enquiry was made by the nephew Gopali (not examined) which is contrary to the evidence of P.Ws. 1 and 2 whose consistent version is that the initial enquiry was made only by P.W.1. In Paragraph-7 the informant has admitted that prior to coming of the Mukhiya no confession was made by the accused persons. Hence, in the circumstances stated above the alleged extra judicial confession becomes doubtful. 22. The informant‟s case is that after the confession at 4 p.m. on 06.01.1984, the informant along with Juthan Mandal, Baldeo Mandal and Shekho Mandal (all not examined) went to locate the dead body whereas from the fardbeyan, it appears that the fardbeyan was recorded prior to that. The informant has stated in Paragraph-6 that he went to locate the dead body of the deceased on 06.01.1984 to Hanwara Ghat where the dead body was recovered but this evidence of informant gets contradicted with the evidence of P.W.3 who has stated that on the information of chowkidar Kesho Paswan (not examined) that a dead body is lying at Hanwara Ghat P.W.3 went there and seized the dead body, prepared the inquest report who has admitted in Paragraph-3 that the 19 informant reached near the dead body after P.W.3. This makes the prosecution case doubtful that the dead body was recovered in pursuance to the extra judicial confession of the accused persons or on information of Kesho Paswan by P.W.3. The entire evidence of P.W.3 does not talk about extra judicial confession made by the accused persons. 23. So far as the place of recovery of the dead body is concerned, it is an admitted position that the dead body was recovered from the maze field in village Hanwara Ghat as there is no dispute with regard to the place of recovery of the dead body. 24. So far as the injuries of the victim are concerned P.W.9 Dr. B.P. Singh has conducted the post-mortem examination and found three external injuries. They are multiple bruises as follows: (i) on one over right cheek 1.1/2”x3/4, over chin 1”x1/2”, (ii)over forehead 2”x3/4”, over Parietal region of scalp 2”x3” (iii) and over vertex of scalp 2”x1”. 25. Though on dissection five internal injuries have been found. It is specific case of the prosecution that as per the extra 20 judicial confession of the accused persons, the victim was killed by throttling. Though, P.W.9 in the opinion portion of post-mortem report suggests death being caused by asphyxia due to ligature round the neck but the external examination of body does not suggest any injury on neck even ligature mark which also negates the alleged confession made by the accused persons. 26. The defence has got exhibited Ext.A the photo copy of the warrant of arrest issued against the deceased in a case under Section 396 of the Indian Penal Code, to suggest that the victim was a criminal and he was killed while committing some offence. Though, no evidence has been led to prove this contention of the defence but the injuries on the body of the deceased creates doubt about the manner of the occurrence as alleged. 27. The other circumstance which has been relied upon by the learned court below is the statement of witnesses under Section 164 of the code of criminal procedure. It is settled law that statement under Section 164 of the code of criminal procedure is not a substantive piece of evidence and it can be used only for corroboration and contradiction purposes. 21 Hence, the statement under Section 164 of the code of criminal procedure in no way helps the prosecution in proving its case. As the case is basically based on circumstantial evidence. 28. It is often said