inal Appea No.~ 8 of 199 Crim l 83 9 ulan' . tate of Chhattisarh S g Ci pp f rimnal Aeal No. 1159 o 1999 ‘Iara Ba s. hharh State of Cattisg J ifn: udgment for consderaio Sdl- sUNIL KUMAR SINHA Judge W -._ .Wm W on’ble Shri Jhsti'cevL.C.' ‘Bhaoo H d. ? Sd/- y L.C. BHADoo 77 Sc— i/ SUNIL KUMAR smHA Judge D Vs tw i V ( 3 HEGH CQURT GF CHHATTISGARH AT BILSPUR Division Bench: Hon’ble Shri Justice L.C.Bhadoeg Eion’ble Shri Justice Sunil Kumar Sinha, Criminal Apgeal No.838 cf 1999 Dulari ‘ Vs. State of Chhatu'garh .Aygeaxaace: 8111i RRSahu, counsel for the. appcllant. Shri U,N.S, D60, Govt. Advocate with Shri D. K, Gwalm, Deputy Govt. Advocate, for the State. Criminal Appeal No.1 159,! 1999 Imara Bai Vs State 0f Chhattisgarh A§9eagagca )7. Ms, Meenu Banexjtie, counsd for the. amacllant. . Shn' U.N.S. Deo, Govt. Advccate with Shri D. K. Gwalra, Dy. Govt. Advocate, for the Stats. . JUDGMENT ( 15:09.2006) SUNIL KUMAR SINHA, J, {1) These appeals have. been directed against the judgment of convimion axld omer of sentence awarded by the 11nd Addl. Sessions Judge, Bilaspur, on 06th of March 1999 in Sessions Trial No.257/ 1998 whereby the lealned sessions Judge held the appellants guilty of the odence punishable u/s 302 read with section 34 of the I.P.C. and sentenced them to undergo life imprisonment. (Z; The brief facts are. that the deceasai namsly Bholu Ram was the husband of appellant Itwara Bai, They were residing together in village Jodhra. After 28.3. 1998, the deceased was not seen 1'11 the village, This was noticed by the villagers and since the appellant Itwari Bai was having illicit relations with the co-appellaht Dulali, it was spread in the Village that they have killed the deceased and have caused disappearance of the dead body, On this, the Saipanch alongwith the villagers gave a written mport to the Police Chowki, Pachpedi, RS. Masturi on 09.4.1998 vide EX.P.14. This report was also entered in Rosnamcha Sanha (ExPEO-C). On this, the invesh'gation commenced and, since the villagers had exemssed their suspicion in the written report regarding murder by the > appellants on account of their illicit relations, therefore, they were permitted by the Police to ask about this fact from the appehants. Upon this, on 10.4.1998, these appellants were called by the villagers by Kotwar Jeevan Das in Panchayat Bhawan and they were asked about the incident. The appellants made extra judicial confession before the Villagers Which was reduced into writing by them in form of a memorandum vide EX,P,7, According to the confession of Dulari, he assaulted the deceased with the help of Kulhadi on his head (right temple) in the courtyard of the deceased, who fell down, The second blow was given at the instance of the appellant Itwara Bai and the deceased died on the spot. After his death, both the appellants put the dead body in the Gunni‘bag and tied it with the help of a bed sheet and took the body on a bicycle h‘om the house of the deceased to the Bank of River Sheonath and buried the dead -3- body at a particular place. After this information, the appellants ware. taken into custcdy and on 10,4. 1998 itself at about 14.30 hours, memorandum statement of Dulaxi (EX.P,8) leading to discovely of Tangia, Bicycle, Fowda and Nylon rope was recorded. Another memorandum] statement of Itwara Bai was also recorded which led to discovery of certain articles. Thereafter, with the permission of the State authorities, the dead body of the deceased was exhumed from the place indicated by the appellants at their instance by the Executive Magistrate Mr. M.S. Dubey (P.W.11). The body was identihed in Panchnama and it was sent for Postmortem which was conducted by Dr, Vinay Gupta (P,W.3) and the report was submitted Vide EX.P.6. The Doctor has noticed the injuries over the body, however, perhaps due to decomposed condition, he could not give any opinion regarding cause and mode of death. During the course of investigation, the Police recorded statements of neighbours of the deceased namely Ganga Bai (P.W.5) and Seorkha ‘(P.W.6) and after recording the statements of other witnesses, charge sheet was filed, The Sessions Court framed common charges u/s 302 read with section 34 and section 201 of the I.P.C. and after conclusion of the trial, convicted the appellants as aforementioned. (3) The conviction of the appellants is based on circumstantial evidence, The Sessions Court relied upon the following circumstances for holding the appellants guilty of the K i aforesaid oh'ence, just in the next moming of the incident, the wife of the deceased i.e., appellant ltwara Bai / i) ( -Lf- (iV) taking a sum of RS. 1000/- with him. stated t0 her neighbours namely Ganga Bai (P.W.5) and Seorkha (RW. 6) that on account of fear of police regarding theft of wood, her hushagd ran away from the Village after There. were illicit relations between both the appallgmts; Prior to this incident also the Wife of the deceased namely Itwara Bai was burnt by the deceased on account of her illicit relations with me co-appellant Dulari, Even if the husband was missing since last ‘10-11 days, but no report was lodged by the wife. to the Police and she had also not given any complaint to the villagers rather she was canvassing regarding abscondence of the deceased on account of fear of police on the. pretext of theft ofwood; The factnm of extra judicial confession which was made by the appellants in Village Panchayat and was recorded Vide EX.P.7; The discovery of dead body from a particular place near the bank of river Sheonath at the instance of the appellants particularly in the which they had described in their confessions; and The memorandum u/s 2’7 of the Evidence Act, on which discoveries of vaiious articles were made, same condition (vii) along with same articles (4} Learned counsel for the appellants argued that the circumstance of giving extra judicial confession has not been established and the confession reduced into writing in EX.P.7 cannot he believed. They further argued that evidence of the Witnesses in this regard appears to be unreliable and the ..l:)v conviction camnot be. based on it. Th€y also argued that the. other circumstanccs are also not established 1'11 this caso so as to lead em hTesistible. coaclusion that ms appellants were. the. authors of tho crimo. {5} For axtra judicial confession, they have placed reliaace on g ’ decisions of the Apex Court rendered in the matter of Makhan sing}: 415- gtate cf mint», Am 1938 SC 1?05 and Kishare Qhaxgd -ys- State efHimachal Pradesh (i 991} 1 sCC 286. In Makhau Siugh’s case (supra), the Apex Court held that the eXtra judicial csnfession is a weak kind of evidence. In Kishom Chand’s case (supra) it was held by the Supreme Court that the extra judicial confession must satisiy the requirement of sections 24, 25 and 26 of the Evidence Act which must he construed strictly. An unambiguous extra judicial confession possesses high pmbative 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 nrocess of proof of the alleged confession, the Court has to be satisfied that it is a voluntary one and does not appear- to he the result of inducement, threat or promise envisaged u/s 24 or was brought about in suspicious circumstances to circumvent sections 24, 25 d5 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 any improper or collateral consideration or circumvention of the law / V suggesting that it may not be true one. Therefore, even the extra judicial confession will also have to he proved like any other fact. The value of theevidence as to the confession depends upon the y -é' v€racity of the witness to whom it is mack, the time and place of making it and. the circumstances in which it came to be. made. and the. actual words usad by tlm accused, Refemng to thesa decisions, laarned counsel fer the appellants submitted that since the police had aheady came 1'11 the Village and they had suggested the villagers to ask from the accused persons about the. deceased, tllelefore, the confession made by the accused persons, does not appear to be voluntary and it appears to be with me indulgence of the police personnel. {5} On the point of extra judicial confession one Seshnath (P.W.4) has been examined, He has stated that after hearing about the murder of the deceased, he alongwith other persons namely Bal Mukund (RW. 8), Dhannendra, Baba Singh and Sunhar (PW, 7) enquired from the accused persons asking them that they are hearing in the village about the murder of Bholu Ram, On this, accused Dularl stated that he had murdered the deceased alongwith the cc-accused ltwara Bai, He has also stated that thereaiter, a Panchnama about this confession was leduced into writing and the persons present there had signed it. P,W.7 Sunharlal is the other witness about the confession. He also stated Vide para 2 of his evidence that the accused persons had told to them that they had murdered the deceased and had buried the dead body at the bank of river Sheonath, Bal Mukund (P.W.8) is another witness who also stated vide \ para 2 of his evidence that the accused persons were called by ./ t / the villagers in Panchayat Bhawan and they had confessed that , ’1 diey had murdered the deceased and had buried the dead body at the Bank of River Sheonath. Though there are some x :k contradich'ons in flm cvid6nce. of thew Witnesses but one thing which emergEs from meir evidence is that the appellants were called by the Villagers in village Panchayat and they have made confession about the muxder of the deceased and had also confessed that the dead body of the deceased was buried by‘ them at the baBk of river Sheonath. Nothing substandve has $ been brought on record against the testimonies of these witnesses and nothing has been suggested that they, in any manner, were interested in making false statement against the accused persons. (7} So far as the police indulgence is concemed, it only comes in the evidence that the Police had also Ieached to the village and the persons of police department were there in a ditferent loom of the Gram Panchayat Bhawan and before asking about the deceaSed from the accused persons, the Villagers had a talk with the Police. This does not mean that in fact, either the confession was made at the instance of the Police or it was made by their indulgence because except that the villagers were suggested by the Police to ask about the deceased from the accused, nothing adverse has been suggested against them. Mere presence of the Police in the village for purpose of investigation and permitting the villagers to enquire from the accused persons and during such time making confession by the wife and her paramour does not by itself vitiate the confession, It has not come on record that either the police was present in the room where the accused persons were called or the police had met with the accused persons or in any manner, the accused persons were having knowledge that the police had -g‘ £9139 come to the Village for investigation. It has not 136611 suggasted that fhe confession was made either by inducement, thleat‘ or promise or by making any influence on the accused persons. If evidence to this e§ect is giveii by the truthful witnesses who appear to be unbiased, not even remotely mimical to the accused, and 1'11 respect of whom nothing is brought out which may tend to indicate that mey may have a motive for attributing an unmithful statement to the accused and the words spoken are clear, unambiguous and unmistakably convey that the accused is the oifender and nothing is omitted by the witness which may militate against it, after subjecting the evidence to rigorous test on the touch stone of ctedibility, if it passed the test, it can be accepted and can he the basis for conviction, .Please see Am 1985 SC 48 - State of ULP. E's. MLK. Anthony. In the present case, the trial Court has rightly held the confession as a proved circumstance against the apneliants. t8; The other Circumstance, regarding canvassing of the abscondence of the deceased by the appellant Itwara Bai comes in the evidence of her neibours PW-S and PW-6. Gangabai (PW- 5} has clearly stated that on the next morning of the incident appellant-Itwara Bai had met with her and had said that Bholu Ram had run away from the Village. Though she has been declared hostile by nrosecution but this fact remained intact that the appellant-Itwara Bai told her that her husband {deceased) has absconded from the village, Likewise PW—6 Seorkha, has also stated that the appellant-Imam Bai had told, that her husband has ahsconded from the Village due to fear of , ‘9- ths police on account of tlmft 0f wood committed by him. She has aise disclosed that her husband (dECeased) had taliem a sum of Rs. 1000,1- from the house. He has also been declared hostile 0h some other §oh1t but the fact regarding disclosure by the appellant 1'11 the above manner is mtg—lot 3'11 his statement, On the basis of evidence of these two witnesses, this circumstance appears against the appellant-Itwara Bai that hum the very next day of incident, she tlied to mislead the villagers by canvassing that her husbaiid is abscondiiig on account of theft so that they may not seriously notice his abscondence and may not think in the line of his murder/ kidnapping etc. If this was the fact, which the wife was canvassing, then atleast after 10-11 days, as it comes in this case that the matter was not taken Seriously till the said date, in usual manner, she should have reported the matter to the. police or even to the. Village people for searching of her husband but it was not done and ultimately the confessional statement was made on 10.4, 1998. A w-k (9} The most important circumstance is the discovery of the dead body at the instance of the accused persons, In this regard the Investigating Ofticer SS. Singh (PW- 10), had recorded two discovery statements vide EX-P-8 8% EX-P—Q. EX-P-S is the memorandum of appellant Dulan‘. In this memorandum, he has indicated the place, where the dead hody was buried and has also indicated about the various articles like Tangi, bicycle, Ehawda etc, EX-P-9 is the memorandum given by accused- Itwara Bai and she has also indicated the place of burying the dead body. PW-4 Shaisnath and PW-7 Sunhar Ram are the witnesses of memorandum before whom the statements were -w‘ made and they have prévmi the aforssaid documents, After this, the: place was searched and the permission to exhume the dead body was obtained. PW-ll- SS. Dubey is the Executive Magistrate in whose piesence the dead body was exhumed, He. has stated that on 10.4.98, the S.D.M., Bilasmlr has sent a memo (Ex-P40) for exhuming the dead body of the deceased y Bholu Ram, On the said memorandum, he had gone to village Jodhara and after meeting with the out—post in-charge, police out-post Pachpedi, he had gone to the spot and the place of buiying the dead body was indicated by accused persons and the body was taken out. The body was identihed and a Pmzchnama vide EX~P-12 was prepared in his presence which hears his signature. He also deposed that in Panchnctma (Ex-P- 12), he had made an endorsement to this effect. He has fuxther deposed that alongwith the dead body one Chhadar, one gunny bag (in which the dead body was kept) and a Ioongi of the deceased. were also there. He further deposed that the photograph etc. wele also taken. (10) Nothing adverse has been brought against the said statement of this witness. The dead body was exhumed on 11.4.98 and after preparation of the Panchnama of the dead body, the aforesaid articlesJwhich were found along with body, were also seized vide Ex-P- 13. How the appellants came to know about the positioning of the body ? How they could come to ' know that the articles like gunny bag, bed-sheet, etc. were used for disposing of the dead body unless they had complicity with the crime ? This is not a case where the entire investigation was completed in one day and after discovery of body the forged . dacuments as memorandums etc, Wtere prepared. It is note worthythat the memorandums of bath the. accused p61"sons were gitpared on 10.4.1998 and thereafter when the question of exhuming the dead body arose a permission was sought from the S.D.M., who granted permission, which was served upon the . Executive Magistrate aad thereafter the Executive Magistrate on the next day ie, 11.4.98 went to the Village and got the body exhumed in the manner mdicated above, These are grave circumstahcaagainst the appellants which go against them. €11.) It is a settled principle that ‘in a case based on circumstaim'ed evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the ch‘cumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being eXplained by any other ' hypothesis, except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused, Legally established circumstances and not merely indignation of the court can form the basis of conviction and the more serious the crime, the greater should he the care taken to scrutinize the evidence lest suspicion takes the place of proof.’ {Please see (1994} 2 SCC 220 — Dhanaujoy Ch lteijee alias 1./ Dhana Vs. state of W.B.], (12} In the present case, trial Court has rightly taken the above circumstantial evidence into consideration which goes to suggest .J‘L’ that since both the appallants wmt having illicit relations with each other, they had strong motive to causa the murder of the. decoasttd and a chain of tho Circumstantial evidence suggest that thsy caused thc murder on 28.3.98 and tlmreailer caused disappearance of the dead body i1; the manner indicated above and they in planned manner tried to canvass in the village that the deceased is absconding 0n account of fear of the police but they ultimately could not succeed. ‘l {13} The above circumstahces irresistibly lead to the conclusion that the appellants were culprits of the cn'me and they have lightly been convicted by the trial Court. For the foregoing reasons, these appeals have no merits and the same are dismissed, The judgment of conviction and order of sentence awai‘ded by the trial Court to both the appellants are hereby coniirmed. Sd/- L.C. BHADOO Judge f; J