IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (Chapter VIII, Rule 32(2) (b) Description of Case Criminal Appeal No. 460 of 2001 (Old No. 2250/1993) Date of decision : 18th May, 2007 A.F.R. (Approved for Reporting) ____________________________ Not approved for reporting Date : 18.05.2007 Initials of Judge Note : Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 460 of 2001 (Old No. 2250 of 1993) Yashwant S/o Raja Ram R/o Kaneri, P.S. Karbhi District Kolhapur (Mah.) At present L/NK. No. 4172-782, 16 Advance Park C/o 56 A.P.O. …Appellant Versus State … Respondent Mr. P.S. Adhikari, learned senior counsel for the appellant Mr. G.S. Sandhu, learned Govt. Advocate for the respondent- State. Date of Delivery :- 18th May, 2007 Coram: Hon’ble Rajeev Gupta, C.J. Hon’ble J. C. S. Rawat, J. Per Hon’ble J.C.S. Rawat, J. 1. This appeal, preferred under Section 374 (2) of Code of Criminal Procedure, 1973 (for brevity hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 13.12.1993, passed by learned Session Judge, Pithoragarh in S.T. No.6/1991, whereby appellant Yashwant has been convicted under Section 302 I.P.C. and sentenced to imprisonment for life. 2. Brief facts of the case are that the appellant Yashwant, an employee in the Indian Army, posted at Headquarters 16 Advance Park, Dharchula, District Pithoragarh was residing with his family in quarter no.16, Advance Park, which was a temporary structure building. The appellant used to suspect that his wife Smt. Vimal had illicit relationship with someone in the village of her in-laws. The appellant was greatly disturbed by the conduct, character and behaviour of his wife Vimal and it resulted in bad name to him amontgst his colleagues as well as in the society. It is alleged that on the date of the occurrence, that is, in the intervening night of 29/30.11.1990, the appellant came to his house after seeing a movie and then went to the bed alongwith his wife and children. The appellant was greatly disturbed and could not sleep and at about 1 or 1:30 am, he brought a stone from outside and struck it against the head of his wife Smt. Vimal as a result of which Smt. Vimal sustained injury on her head. It was alleged that the children woke up and the appellant in the meantime got some portion of the wall of his house made to fall. The appellant alongwith his children rushed to the house of Commanding Officer at his residence and then disclosed that due to fall of wall and stones from there, his wife sustained the injury on her head. Thereafter, Smt. Vimal was brought to the Military Hospital where she was declared dead. The appellant also got some injuries and he was also given medical aid. In the meantime, on Hav. Yogendra Nath Pandey reported the matter at the police station, Dharchula vide copy of the report (Ex.Ka.3). It is alleged that a Court of Inquiry was set up against the appellant by Colonel H.B.S. Phokela. Major B.B. Tewari was Presiding Officer of that Court of Inquiry and Cap. I. Phunsok PW3 & Deputy Leader Tenzin Gyurmey PW2 were members of the court of inquiry before whom the confessional statement was made in writing. It was stated in the confessional statement Ex.Ka.16 that he had committed the murder of his wife by striking a stone Ex.1 on her head because of her unchastity. The matter was then further investigated. The Investigating Officer of Police Station Dharchulla prepared the Panchayatnama Ex.Ka.4 of the dead body. He prepared Photo-lash Ex.Ka.5, Challan Lash Ex.Ka.6, Sample of seal Ex.Ka.7, letter to Chief Medical Officer Ex.K.8. The Investigating Officer then dispatched the dead body of Smt. Vimal to District Hospital, Pithoragarh where post mortem was conducted vide post mortem report Ex.Ka.1. The appellant was arrested and taken into custody. The Investigating Officer also prepared Ex.Ka.12 broken pieces of bangles from inside the room. He also recorded the statement of the witnesses and prepared the site plan Ex.Ka.22. The appellant was brought before the Magistrate where he retracted from his extra judicial confession and made a different statement Ex.ka.1 before the S.D.M., Didihat. After completing the investigation, the I.O. submitted the chargesheet (Ex.Ka.23) before the court. 3. The appellant-accused was charged u/s 302 I.P.C. The accused/appellant denied the charges and claimed his trial. 4. The prosecution in support of its case examined as many as nine witnesses. Dr. R.C. Joshi PW1 was the Medical Officer, who conducted the post mortem of the deceased on 01.12.1990. The Medical Officer proved the postmortem report Ex.ka.1. The prosecution has adduced the evidence of Tensin Gyoremi (PW2) Deputy Leader and Capt. T. Phunsok PW3 of 16th Advance Park. They were members of the Court of Inquiry initiated against the appellant by the Army. Major B.B. Tewari PW8 was Presiding Officer of Court of Inquiry. They proved various statements Ex.ka.17 to 19 including the extra judicial confession. Dr. P. Nath PW4 was the Medical Officer, who examined the injuries of the appellant on 03.12.1990. Kewalanand Arya PW5 was posted at police station Dharchula as Sub-Inspector on the fateful day. He received an information from the Constable Yogendra Nath of the Military that Smt. Vimal has sustained injuries and died in the military hospital. Accordingly an entry to that effect was made in the G.D. Ex.ka.3. Kewalanand Arya PW5 recovered the stone Ex. 1 by which the head injury was caused to the deceased. He also recovered the broken pieces of bangles of the deceased from the place of occurrence and market it as Ex.ka.12.Jagdish Chandra PW6 is a formal witness, who proved the factum of G.D. entry Ex.ka.13. Major S. Dutta PW7 is also a formal witness, who was posted as Medical Officer in Sector Hospital, Dharchula. He examined Smt. Vimal and found her dead. B.D. Sharma PW9 is the Investigating Officer, who prepared the site-plan Ex.ka.22 and after completing the investigation submitted the chargesheet Ex.ka.23 before the court. The appellant examined Dev Singh DW1 in his defence. 5. The appellant-accused was examined u/s 313 Cr.P.C. and he has pleaded not guilty to the offence. He has stated that he has been falsely implicated in this case. The appellant-accused has further stated that he alongwith his wife and children was inside his house. In the dead hours of the night, the wall of the temporary structure of his house all of a sudden fell down and stone struck on the head of his wife and consequently she died. The appellant has denied in his statement recorded under section 313 Cr.P.C. that his wife was leading an unchaste life and he ever suspected the chastity of his wife. The appellant has denied the averments made in the extra-judicial confession. 6. The learned Sessions Judge on appreciation of the evidence in the case held the accused/appellant guilty and convicted and sentenced him as mentioned above. 7. We have heard Mr. P.S. Adhikari learned senior counsel for the appellant and Mr. G. S. Sandhu, learned Govt. Advocate for the respondent. Perused the record carefully. 8. At the outset, it needs to be mentioned here that it is not disputed that Smt. Vimal – wife of the appellant died on account of injuries sustained by her in the intervening night of 29/30.11.1990. Dr. R.C. Joshi (PW1), Medical Officer conducted the post mortem of the deceased on 01.12.1990 at about 10:15 a.m. and found following ante-mortem injuries on the person of the deceased:- “Hair soaped in blood on right side skull on temporal area right side touching parietal also. Therefore, lacerated wound 2.5 cm x 1.5 cm x skin deep. The wound was full of blood and was situated (haemotoma present) 2” above above right ear. The membrances were congested and blood vassels were also congested. In the opinion of the Medical Officer, the death of the deceased was caused due to coma as a result of head injury (haemotoma). According to the medical officer, this injury could be caused by hitting of a stone on her head. The said injury could be sustained by the deceased on the intervening night of 29/30.11.1990. He has further deposed in his evidence that the ante- mortem injury sustained by the deceased was sufficient to cause the death in the ordinary course. According to the appellant-accused, in the night between 29/30.11.1990 he alongwith his wife and children was sleeping on the bed. Some stones from the wall of his house fell due to which his wife Smt. Vimal sustained injury on her head and he himself sustained injury on his persons. According to the appellant, the deceased died on account of injuries sustained by her on head due to fall of stones of the wall. Thus, the date, time and place of occurrence are admitted to the appellant- accused. There is no dispute that the deceased sustained the head injury in the night between 29/30.11.1990 at about 1-1:30am and the house of the appellant was situated in 16th Advance Park which comes under the police station Dharchula, Pithoragarh. It is also not disputed that one Hav. Yogendra Nath informed the police about the death of the deceased on 30.11.1990 vide report Ex.ka.13. It was indicated in report Ex.ka.13 that the deceased Smt. Vimal – the wife of the appellant sustained injury due to the sudden fall of stones from the wall of appellant’s house. There is no dispute that the appellant accused informed the army authorities about the incident and with the help of the military personnel the wife of the appellant was taken to the military hospital. 9. Now, we have to consider as to who is responsible for causing the death of the deceased Smt. Vimal. There was no eyewitness of the incident and the prosecution case rests upon circumstantial evidence. The law which is fairly settled about circumstantial evidence is that it should be such as to point out only to the guilt of the accused. The evidence should exclude all other hypothesis except the guilt of the accused. It is often said that through 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. In order to sustain conviction on circumstantial evidence, each of the incriminating piece of circumstantial evidence should be proved by cogent and reliable evidence and the court should be satisfied that the piece of evidence taken together forge such a chain wherefrom no inference other than the guilt can be drawn. 10. The Hon’ble Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra (AIR 1984 SC 1622) while dealing with circumstantial evidence, has held that onus is always on the prosecution to prove that the chain is complete. The condition precedent before conviction could be based on circumstantial evidence were enumerated as under :- (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; (ii) 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; (iii) the circumstances should be of a conclusive nature and tendency; (iv) They should exclude every possible hypothesis except the one to be proved; and (v) 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. The above decision was also followed in the decisions of the Hon’ble Apex Court in State of Rajasthan Vs. Rajaram 2003 Cri.L.J. p/3901, State of U.P. Vs. Satish 2005 SCC (Cri) 642 and Ram Singh Vs. Sonia & others 2007 (3) SCC 1. 11. Keeping in view the above principle of law, we will consider the circumstances projected by the prosecution against the appellant. 12. The prosecution has based its case against the appellant-accused mainly on the basis of extra-judicial confession which is said to have been made by the appellant before the Presiding Officer and Members of the Court of Inquiry constituted by the Commanding Officer of the Unit. The extra-judicial confession was made before three army officers i.e. Major B.B. Tiwari PW8, Capt. T. Phunsok PW3 and Tensin Gyoremi PW2. These three army officers were holding the proceeding of the Court of Inquiry constituted by the competent authority for determining the cause of death of the deceased Smt. Vimal. There is no dispute that the appellant was a waiter in the army mess and as such he was a military man. Indisputably, the extra-judicial confession was made to the above witnesses who were holding the Court of Inquiry constituted by the competent authority. It is apt to reproduce the extra judicial confession made by the appellant and the same is as under:- “eSa u0 7962662 yk ukbZd ;”koar /kksf’kr djrk gwW eSa ,p D;w 16 ,MogkUl ikdZ esa lsokFkZ gWw eSa ;gkW ,d lky 4 eghukas ls lfoZl dj jgk gwWA eSaus ;gkW tqykbZ eghus esa cPps yk;k Fkk tqykbZ 1990 es vkSj esjh iUuh ds laca/k /kj esa xSj vkneh ls FksA eSus vius xkWo eSa eq>s bTtr ls thuk gjke FkkA esjh 'kknh dks 10 lky gksrk gSA esjs rhu cPps gSA cM+h yM+dh 6 lky dh yM+dk lk<s+ pkj lky dk NksVh yM+dh <kbZ lky dh gSA esjs ekrk firk gSA esjs nks HkkbZ gSaA cM+k HkkbZ 3 egkj esa--------sub gSA NksVk HkkbZ flfoy lfoZl esa gSA esjh pkj cfgu gSaA lHkh 'kknh 'kqnk gSaA esjs HkkbZ ds cPps /kj es gSA esjs llqjky okys lkl lqlj gSA ,d lkyk vkSj rhu lkyh gSaA lqlj pkpk pkph gSa A ,d lkyk vkSj nks lkyh gSaA 'kknh ls gh esjh iRuh ds xSj vkneh ls laca/k Fks eSus cgqr cjnkLr dh rykd ysus dk Hkh mik; lkspk ysfdu llqjky okyks us ,d u lquhA bl rjg ls eSus ykyeiqj H.P. Pradesh esa Hkh cPps j[ksA ysfdu m/kj esa dqN ugh dj ldkA mldh vknr m/kj Hkh fcxM+ xbZ eSa pqi jgk /kj xkWo esa eq>s bTtr ls thuk eq”kfdy gqvkA esjk dystk vanj gh vanj ik.kh ik.kh gksrk Fkk vkSj eSa tqykbZ 1990 dks 16 ,dOgkul ikdZ es cPps ysdj vk x;kA ;gkW vkus ds pkj eghus ckn ;kuh fd 29 ucEcj 90 dks jkr ge vius ;wfuV ls fiDpj ns[kdj vk x;sA 10 cts vkus ds ckn [kkuk xje djds [kkdj ge lks x;sA cPps igys ls lks x;s fQj ge nksuks lks x;s nksuks cPpks dks chp ysdj ge lks x;sA esjh iRuh lks xbZ eq>s uhan ugh vkbZ vkSj eSa jkr dks 1 ;k 1%30 cts ds nkSjku eSaus iRuh ds flj esa ckgj ls iRFkj ykdj ekj fn;k vkSj mldk ukd eqWg cUn djds mldks [kre fd;kA rc rd cPps tx x;s cPPks va/ksjs esa jksus yxsA ;g lc cPpksa us ugha ns[kk fQj eSus nhokj fxjk fn;k vkSj vius flj esa gkFk esa pksV yxkk fy;kA fQj cPpks dks ysdj eSa lh vks lkgc ds DokVj x;k vkSj crk;k fd esjs /kj dk nhokj fxj x;k vkSj esjh iRuh ds flj esa iRFkj fxj x;kA lh vks lkgc lcdks vkokt nsds fpYyk;s lc dks ysdj gekjs DokVj esa igqWp x;s vkSj ejh iRuh dks ysdj M.T. esas lc ys x;s vkSj sec. hospital esa igqWp x;sA v/kj esjh iRuh dks l ykbZu ys x;s rc rd MkDVj lkgc ogkW igqWp x;s vkSj gekjs lh vks lkgc Hkh igqWp x;s eq>s islUV okMZ esa vMfeV fd;k x;k yxHkx 30 feuV ds ckn eq>s lh vks lkgc us vkSj MkDVj lkgc us crk;k fd rqEgkjh iRuh dh e`R;q gks xbZ” 13. In order to prove the above-cited extra-judicial confession, the prosecution has adduced the evidence of Major B.B. Tiwari PW8, Capt. T. Phunsok PW3 and Tensin Gyoremi PW2. Major B.B. Tiwari PW8 was Presiding Officer of Court of Inquiry. Capt. T. Phunsok PW3 and Tensin Gyoremi PW2 were members of the Court of Inquiry. All three witnesses have stated in their evidence that the appellant-Yashwant was posted as Waiter in 16th Advance Park, Dharchula Army Unit at the relevant time. He had been residing with his family at Dharchula army unit. Colonel Phokela, Commanding Officer of the Unit constituted a Court of Inquiry regarding the cause of death of the deceased who was the wife of the appellant-a military man. The appellant-accused was brought before the Court of Inquiry before whom the appellant submitted a written statement Ex.ka. 16 confessing his guilt that he committed the murder of his wife by striking stone on her head while she was asleep. The Court of Inquiry also recorded the statement of other witnesses and also proved the entire proceedings of the Court of Inquiry. These three witnesses have proved that the appellant-accused made an extra judicial confession before them. It is well settled by the catena of decisions rendered by the Hon’ble Supreme Court that extra-judicial confession made even to a stranger cannot be eschewed from consideration if it is found to have been truthful and voluntarily made before a person who has no reason to state falsely. In Gura Singh Vs. State of Rajasthan 2001 SCC (Cri) 323, the Hon’ble Supreme Court has held as follows:- “6. It is settled position of law that extra-judicial confession, if true and voluntary, it can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extra-judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. Relying upon an earlier judgment in Rao Shiv Bahadur Singh Vs. State of Vindhya Pradesh 1954 Criminal .L.J. 910 this Court again in Maghar Singh Vs. State of Punjab 1975 SCC (Cri) 479 held that the evidence in the form of extra-judicial confession made by the accused to witnesses cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone. In Narayan Singh Vs. State of M.P. 1985 SCC(Cri) 460, this Court cautioned that it is not open to the court trying the criminal case to start with a presumption that extra-judicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession. The retraction of extra-judicial confession which is a usual phenomenon in criminal cases would by itself not weaken the case of the prosecution based upon such a confession. In Kishore Chand Vs. State of H.P. 1991 SCC (Cri) 172 this Court held that an unambiguous 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 any falsity. However, before relying on the alleged confession, the court has to be satisfied that it is voluntary and is not the result of inducement, threat or promise envisaged under section 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent Sections 25 and 26. The court is required to look into the surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggesting that it may not be true. All relevant circumstances such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made have to be scrutinized. To the same effect is the judgment in Baldev Raj Vs. State of Haryana 1991 SCC(Cri) 659. After referring to the judgment in Piara Singh Vs. State of Punjab 1977 SCC (Cri) 614 this Court in Madan Gopal Kakkad Vs. Naval Dubey 1992 SCC(Cri) 589 held that the extra- judicial confession which is not obtained by coercion, promise of favour or false hope and is plenary in character and voluntary in nature can be made the basis for conviction even without corroboration.” The same view has also been followed in the latest decision of the Hon’ble Apex Court in Ram Singh Vs. Sonia & others 2007 (3) SCC1. 14. In the light of the enunciation of law as above, we have to examine as to whether the confession made by the appellant to Major B.B. Tiwari PW8, Capt. T. Phunsok PW3 and Tensin Gyoremi PW2 inspires confidence or not. Indisputably, the extra-judicial confession was made by the appellant to Major B.B. Tiwari PW8, Capt. T. Phunsok PW3 and Tensin Gyoremi PW2 prior to his arrest by the police and, therefore, question of it being made under any inducement, threat or promise by the police does not arise. The appellant has retracted from the extra-judicial confession dated 02.12.1990 and gave different version in the statement recorded under section 164 Cr.P.C. which was recorded after 14 days. In the statement recorded under section 164 Cr.P.C. Ex.kha.1, the appellant-accused has stated that the threats were extended to him for making the confessional statement. He further stated in his statement recorded under section 164 Cr.P.C. that Phukela, Commanding Officer of the Unit called him in the unit where 4-5 officers were present and threats were extended to him for making the confessional statement. The appellant has further stated his statement recorded under section 164 Cr.P.C. that he gave his confession to the Army authorities under the threats. The appellant-accused was examined under section 313 Cr.P.C. in which he has stated that the Commanding Officer was annoyed with him because of the fact that he was doing mess duty and he was submitting the excessive bills. The Commanding Officer has allowed him to keep the family in the quarter, though keeping the family members in the military area was prohibited. The appellant has further stated that after the death of his wife he was taken to a room where two constables and two J.C.Os. armed with weapons extended threats to him for making extra judicial confession before the Court of Inquiry and under the duress, coercion and threat he wrote the extra judicial confession Ex.ka.16. 15. Learned counsel for the appellant-accused contended that the extra judicial confession was obtained under duress, coercion and threat, as such, it cannot be read in evidence. Learned G.A. refuted the contention. Perusal of the record reveals that Major B.B. Tiwari PW8 was Presiding Officer of Court of Inquiry, and Capt. T. Phunsok PW3 & Tensin Gyoremi PW2 were members of the Court of Inquiry and before whom the appellant-accused appeared and gave a written statement Ex.ka.16. If the Commanding Officer would have illegally obtained a confessional statement he could have very well stated that the same fact to the Court of Inquiry. Learned counsel for appellant could not demonstrate us from the evidence that the Commanding Officer was also present when the appellant was produced before the Court of Inquiry. There is no whisper that the members or presiding officer of the Court of Inquiry had any ill-will against the appellant-accused. Apart from this, the appellant was simply a waiter in the army mess and he was not the incharge of the mess. What we understand that a waiter has to serve the food to the officers who come in the mess. The incharge