'^s^' HIGH COURTOF CHHATTISGARH AT BILASPUR D.B.: Hon'ble Shri Justice Sunil Kumar Sinha and Hon'ble Shri Justice Radhe Shyam Sharma Crimmal Appeal No.1396 of 1995 •» Rajesh Kumar Verma and another versus. The State of Madhya Pradesh (now Chhattisgarh) JUDGMENT FOR CONSIDERAT10N Sd/- R.S.Sltarma Judge Hon'ble Shri Sunil Kumar Sinha. J.: ^ Sd/- SunilKumarSinha Judge ^ / •*>>- Postfor ^-11-2011 ScV- JlJDGE^ ^-11-2011 \iMs i«» HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hon'ble Shri JusticeSynil KumarSinha and Hon'ble Shri Justice Radhe Shyam ^harma Criminal Appeal No.1396 of 1995 Appellants 1. 2. versus Respondent Rajesh Kumar Verma, son of Pandurang Verma, aged 18 years, resident of Itar, Police Station Gatapar, District Rajnandgaon Munna Satnami, son of Gend Satnami, aged 19 years, resident of Itar, Police Station Gatapar, District Rajnandgaon The State of Madhya Pradesh (now Chhattisgarh) Present: Shri G.SAhluwalia, counsel for the appellants. Shri RavindraAgrawal, Panel Lawyerforthe State/respondent. Criminal Appeal under Section 374(2) of the Code of Criminal Procedure 1 JUDGMENT (Deliveredon stt> oj- November, 2011) Per Radhe Shyam Sharma, J.: This appeal is directed against the judgment dated 7-10-1995 passed by Additional Session Judge, Khairagarh in Session Trial No. 178/1993. By the impugned judgment, accused persons/appellants Rajesh Kumar Verma and Munna Satnami have been convictp'd under Section 302 of the Indian Penal Code and sentenced to undergo impFt§pnment for life and to pay fine of RS.1,000/- each, in default', to further undergo rigorous imprisonment for sixmonths. 2. Case of the prosecution, in brief, is as under: ,BI 7^ 'aila I'lE'tiiiiE'l Deceased Indrabai was missing since 4-7-1993. Her father Atamdas (PW-1) lodged a missing report in Police Station Gatapar. After lodging the missing report, he came to know that dead body of the deceased was found near culvert (/Va/a) of Village Itar. Merg Intimation (Ex.P-1) was lodged byAtamdas (PW-1) in Police Station Gatapar on 5-7-1993. Thereafter, First Information Reports (Ex.P-26 and P-27) were registered. The investigating officer reached the place of occurrence, gave notice (Ex. P-2) to Panchas and prepared inquest (Ex.P-3) on the body of the deceased. Dead body of the deceased was sent for post mortem examination to Primary Health Centre, Khairagarh vide Ex.P-7A. The post mortem was conducted by Dr. Smt. L.D.Jindani (PW-2) and Dr. S.S.Chhabra (PW-3), who gave their report Ex.P-7. They opined that cause of death was asphyxia due to strangulation and the death was homicidal in nature. In further investigation, Patwari Ramkumar Jangde (PW-6) prepared spot-map (Ex.P-15). Memorandum statement (Ex.P-16) of appellant Munna Satnami was recorded on 7-7-1993 at 10:35 A.M. and at his instance, one Suti Chaukhana (Lungi) was seized vide Ex.P-17 and one Chaddi was also seized vide Ex.P-18. Pieces of hair of head of appellant Munna Satnami were seized vide Ex.P-19. Pjgces of hair of head of appellant Rajesh Kumar Verma were also seized vide .Ex.R-20. A white full shirt was seized from appellant Rajesh KUmar Verma vide Ex.P-21. Confessional statement s^ Panchnama was also recorded vide Ex.P-22. One pair of Jhumka, one pairof Chappal and a Chaddi ofthe deceased, one white button and pieces of hair from the place of occurrence were seized vide Ex.P-23. Plain earth and blood stained earth were seized from the :".• -^. «<"s. s> -:^j ^i];i!rei:!l!*S8 place of occurrence vide Ex.P-24. Sando Baniyan and underwear were seized from appellant Rajesh KumarVerma vide Ex.P-25. One Ergot P. Forte Tablet, one red Money-Purse and three Tablets said to be kept for abortion were seized from the house of Atamdas (PW- 1) vide Ex.P-4 and 5. The seized articles were sent for chemical examination to Regional Forensic Science Laboratory, Raipur. A report was received therefrom vide Ex.P-38. The hair examination report was also received vide Ex.P-39. Serological Report was received vide Ex.P-37. After completion of the investigation, charge-sheet was filed against the appellants in the Court of Judicial Magistrate First Class, Khairagarh, who, in turn, committed the case to the Court of Session, from where the case was received on transfer by Additional Session Judge, Khairagarh, who conducted the trial and convicted and sentenced the appellants as mentioned above. Charges under Sections 376, 376/109, 376(2)(g) and 302 read with Section 34 IPC were framed against the appellants. The appellants had abjured the guilt. 3. Shri G.S. Ahluwalia, learned counsel for the appellants argued that the finding of guilt recorded on the evidence of extra-judicial confession and memorandum statements of the appellants is unreasonabl^. The offence is not proved beyond reasonable doubt. Even if the circumstances are"taken on their face value, it cannot be said that the appellants have committed murder of the deceased. He further argued that the evidence relating to the extra-judicial confession is shaky which is not admissible in the evidence, K'i: ^r; ^•;;.: M^• i—'Tii&a // SKtt because the confessional statement was recorded by a police officer. He further argued that it is well settled that strong suspicion is not substitute for a proof, therefore, the finding recorded by the learned Additional Session Judge is not sustainable and the appellants deserve to be acquitted of the charges framed against them. 4. On the other hand, Shri Ravindra Agrawal, learned Panel Lawyer for the State/respondent opposed the arguments and supported the impugned judgment passed by the learned Additional Session Judge. 5. We have heard learned counsel for the parties at length and have perused the impugned judgment as also the record of the session case. Admittedly, there is no eyewitness to the incident and the case of the prosecution is based on circumstantial evidence. The main circumstances, which the learned Additional Session Judge appears to have taken note of are thus: (i) Extra-judieial confession of the appellants regarding commission of murder of the deceased. (ii) Memorandum statements of the appellants and recovery at their instances. (iii) Recovery of one button near dead body of the .xJeceased, which belonged to appellant Rajesh. " / _ (iv) " Recovery of bunch of hair near dead body of the deceased. '*'- 6. It is well settled that with a view to base conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching fc. '^. evidence. The circumstances, from which conclusion of guilt is to be drawn, should be fully established. n'*iilii 7. In Varun Chaudhary vs. State of Rajasthan, AIR 2011 SC 72, the Hon'ble Supreme Court has held thus: •» "24. It is a settled legal position that in case of circumstantial evidence, there must be a complete chain of evidence which would lead to a conclusion that the accused was the only person, who could have committed the offence and none else. In the instant case, there is nothing to show that the accused had committed the offence and on the basis of the aforestated material, in our opinion, it would be dangerous to convict the accused. In the case of G. Parashwanath v. State of Karnataka, (2010) 8 SCC 593 : (AIR 2010 SC 2914), para 24, it has been stated that "in deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only.with the hypothesis of the guilt of the accused and should exclude every hypothesis except the .Qne sought to be proved ......... There must be a phain 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, where various links in chain are in fhemselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court"." :te BBB ./. 8. The death of the deceased being homicidal has not been disputed by the appellants. Now, we shall deal with the circumstantial evidence led by the prosecution. 9. In Mulk Raj vs. Th6 State of U.P., AIR 1959 SC 902, the Hon'ble Supreme Court has held that an extra-judicial confession if voluntary can be relied upon by the Court along with other evidence in convicting the accused. The confession will have to be proved just like any other fact. The value of the evidence as to the confession just like any other evidence, depends upon the veracity of the witness to whom it is made. It is true that court requires the witness to give the actual wbrds used by the accused as nearly as possible, but it is not an invariable rule that the Court should not accept the evidence, if not the actual words but the substance were given. It is for the court having regard to the credibility of the witness, his capacity to understand the language in which the accused made the confession to accept the evidence or not. 10. In Ajay Singh vs. State of Maharashtra, (2007) 12 SCC 341, the Hon'ble Supreme Court has'observed thus: "8. .......^Though it is not necessary that the witness shoulcT speak the exact words but there cannot be vital and material difference. While dealing with a stand of extra-judicial confe.ssion, court has to satisfy that the same was voluntary and without any coercion and undue influence. Extra-judicial confession can form the basis of conviction jf persons before whom it is stated to be made appear to be unbiased and not even remotely inimical to .!&„ 1 .--;*a8i 8 't'if £3 ;:--c''^' "^L^' ..•••;^' 7 the accused. Where there is material to show animosity, court has to proceed cautiously and find out whether confession just like any other evidence depends on veracity of witness to whom it is made. ........." @ 11. So far as extra-judicial confession is concerned, the prosecution has examined Roopdas Banjare (PW-11), Bisauharam Lahare (PW-12) and Chamruram (PW-8). i 12. Roopdas Banjare (PW-11) deposed that appellant Rajesh Kumar Verma told him that he committed sexual intercourse with the deceased. He further told that the deceased had become pregnant. He also told that the deceased demanded Rs.500/- for abortion of pregnancy and he also told that he gave pills to Santoshi alias Rajeshwari Bai (PW-5) for causing abortion of the deceased. He further deposed that appellant ,Rajesh told that he killed the deceased to remove obstacle on way of his appointment as he was about to get a job of veterinary doctor. At the time of killing the deceased, appellant Munna Satnami was also with him. Panchnama (Ex.P-22) was prepared, which bears his signature. 13. Bisauharam Lahare (PW-12) deposed that appellant Rajesh told him that he was accompanied by appellant Munna. Appellant Munna cofnmitted sexual intercourse with the deceased and sitting on her chest killed her b\?*sthrottling. Appellant Rajesh further told that he held the legs of the deceased on being asked by appellant Munna. iii •;; .-•;•• 'y •^-y ^Si^' ^ 14. Chamruram (PW-8) also deposed that appellant Rajesh told him before Bisauharam Lahare (PW-12), Roopdas Banjare (PW-11) and one Ramji that he has killed the deceased. Appellant Munna caught hold the deceased and pressed her throat and he could not succeed then he, on being asked by appellant Rajesh, caught neck of the deceased and her hand. 15. Now, we shall examine whether the above statement of appellant Rajesh as extra-judicial confession is admissible in evidence. hs.li ir 16. Roopdas Banjare (PW-11) deposed that appellant Rajesh gave his statement before police. Ex.P-22 was recorded by S.H.O. Amreshwar Singh (PW-13). . Bisauharam Lahare (PW-12) also deposed that appellant Rajesh was brought in custody by police of Police Station Gatapar. 17. Chamruram (PW-8) deposed in cross-examination that when appellant Rajesh told them about the incident, the police personnel were present there and the appellants were in police custody. Ex.P- 22 was written by police officer. 18. Amre^tiwar Singh (PW-13) deposed that it is true that after . / - taking appellant Rajesh into custody, he was sent to hospital for -"». medical examination. H.e further deposed that he himself recorded Panchnama ofthe confessional statement (Ex.P-22) on 7-7-1993. i3fl;!tt 19. From the statement of these witnesses, it is evident that the so called confessional statement of appellant Rajesh was made before a police officer and it was recorded by a police officer. 20. According to Roopda's Banjare (PW-11), Bisauharam Lahare (PW-12) and Chamruram (PW-8), the deceased was pregnant, but it has been falsified by the medical evidence. Dr. Smt. L.D.Jindani (PW-2) deposed that the deceased was not pregnant. Therefore, the case of the prosecution becomes doubtful. 21. In Kishore Chand Vs. State of Himachal Pradesh (1991) 1 SCC 286, the Hon'ble Supreme Court held that an ambiguous extra- judicial confession possesses high probative value force as it emanates from the - person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of its falsity. But in the process of the proof of the alleged confession the court has to be satisfied that it is voluntary one and does not appear to be the result of inducement, threat or promise envisaged und'er Section 24 or was brought about in suspicious circumstances to circumvent Sections 25 and 26 of the Evidence Act. The Court has to look into the surrounding circumstances and to find whether the extra-judicial confession is not inspired by ^ny improperor collateral consideration or circumyention of the law suggesting that it«(nay not be true one. Therefore, even the extra-judicial confession will also have to be proved like any other fact. The value of the evidence as to the confession depends upon the veracity of the witness to whom it is made, the time and ^) f Mt litM'BK 10 place of making it and the circumstances in which it came to be made and the actual words used by the accused. Sometimes it may not be possible to the witness to reproduce the actual words in which the confession was made. For that reason the law insists on recording the statement by a Judicial Magistrate after administering all necessary warnings to the accused that it would be used as evidence against him. It is incredible to believe that in the present case the police officer after having got identified the accused- appellant by the PWs as the one last seen in the company of the deceased would have left the appellant without taking him into custody. It is obvious, that with a view to avoid the rigour of Sections 25 and 26, the police officer created an artificial scenario of his leaving for further investigation and kept the appellant in the custody of the Village Pradhan to make an extra-judicial confession. Nothing prevented the police officer to take the appellant to a Judicial Magistrate and have his confession recorded as provided under Section 164 of the Cr.P.C., which possesses great probative value and affords an unerring assurance to the court. It is too incredulous to betieve that for mere asking to tell the truth the appellant made voluntarily confession to the Pradhan and that too sitting in a hotel. The other person in whose presence it was stated to have been made was ;not"examined to provide any corroboration to the . / - testimony of the Pradhan. Therefore, it would be legitimate to -^ concludethat the appellant was taken into the police custody and while the accused was in the custody, the extra-judicial confession was obtained through the Pradhan who accommodated the accused. Sections 25 and 26 shall be construed strictly. Therefore, 11 by operation of Section 26, the confession made by the appellant to the Pradhan while he was in the custody of the police officer shall not be proved against the appellant. 22. In Bullu Das Vs. State of Bihar, JT 1998 (7) SC 452, the Hon'ble Supreme Court h61d thus: "7. The confessional stateroent, Ex.5, stated to have been made by the appellant was before the Police Officer Incharge of the Godda Town Police Station where the offence was registered in respect of the murder of Kusum Devi. The FIR was registered at the Police Station on 8.8.95 at about 12.30 p.m. On 9.8.95, after the appellant was arrested and brought before Rakesh Kumar that he recorded the confessional statement of the appellant. Surprisingly, no objection was taken by the defence for admitting it inevidence. The trial Court also did not consider whether such a confessional statements is admissjble in evidence or ndt. The High Court has also not considered this aspect. The confessional statement was clearly inadmissible as it was made by an accused before a Police Officer after the investigation had started." 23. So far as the extra-judicial confessional statement of appellant Rajesh is concerned, it was recorded by Station House Officer Amreshwar Singh (PW-13) himself. Recording of such statement by a police officpr is^hit by Sections 25, 26 of the Evidence Act and not / ~ admissible jn evidence. Therefore, the appellants cannot be -•^s- convictedon the basis of.evidence of extra-judicial confession. tssMKv 12 24. Next circumstance is memorandum statements of appellants and one button, which was recovered near dead body of the deceased and found to be of appellant Rajesh. 25. Amreshwar Singh (PW-13) deposed that he recorded the memorandum statement dfappellant Munna vide Ex.P-16 and at his instance, one cotton Lungi {Chaukhana) and one Chaddi were seized vide Ex. P-18. Hair of head bf appellant Munna were seized vide Ex.P-19. Hair of head of appellant Rajesh were also seized vide Ex.P-20 and one white full shirt in which one buttonwas in broken condition was also seized vide Ex.P-21. Chamruram (PW-8) supported the seizure from the appellants. The seized article Lungi was sent for chemica) examination to the Forensic Science Laboratory. Report (Ex.P-38) was received therefrom. In the report (Ex.P-38), Lungiwas marked as article 'G'. In the FSL Report (Ex.P- 38), no blood stain was found in article 'G'. 26. So far as bunch of hair is concerned, report (Ex.P-39) is given by V.K.Agrawal, Assisfant Director, Forensic Science Laboratory, Sagar. He opined that articles B, C and D are human hair, but no definite opinion can be given about similarity. Thus, it is not proved that the hair seized near the dead body of the deceased and the hair seized fFon'i the appellants were similar. -.^. ''v. 27. In Ashish Batham vs. State of Madhya Pradesh, AIR 2002 SC 3206, the Hon'ble Supreme Court held that mere suspicion, however, strong or probable it may be is no effect substitute for the legal proof required to substantiate the charge of commission of a fti,. <; 13 crime and grave the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between 'may be true' and 'must be true' and this basic and golden rule only helps to maintain the vital distinction between 'conjectures' and 'sure conclusions' to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record. 28. The circumstance of finding of button near dead body of the deceased, which, according to the prosecution was of the shirt worn by appellant Rajesh on the dafe of occurrence, is insufficient. If is difficult to .connect the button seized near the dead body with the button which was broken from the shirt of appellant Rajesh. Similarity in buttons may give rise to suspicion, but, it is difficult to rely upon it as an incriminating circumstance. It is difficult to hold that the button seized from the place of occurrence was of the shirt of appellant Rajesh. Therefore, the circumstantial evidence of memorandum statement and recovery of button from the place of oc^urrence is not convincing and reliable and cannot be based for conviction of the appellants. f 29. We have carefully examined the entire evidence available on record. We are of the view that the Additional Session Judge has erred in law in resfing the conviction on the circumstantial evidence of extra-judicial confession allegedly made by the appellants and /•••' ;?a j^ 14 recovery of button from the place of occurrence. We are of the view that on the above circumstantial evidence, the conviction of the appellants cannot be sustained. 30. In the result, the ^ppeal is allowed. The conviction and sentence awarded to th& appellants under Section 302 IPC are set aside. They are acquitted of the charges framed against them. Presently, they are on bail. Their bail bonds are cancelled and sureties stand discharged. Sd/- Sunil Kumar Sinha Judge Sd/- R.S. Sikarma Judge Bini/Gopal