IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (Chapter VIII, Rule 32(2) (b) Description of Case Criminal Appeal No. 770 of 2001 (Old No. 1962 of 1991) Date of decision : 17th August, 2007 A.F.R. (Approved for Reporting) _____________________________ Not approved for reporting Date : 17-08-2007 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. 770 of 2001 (Old No. 1962 of 1991) 1. Misri Lal S/o Sumeri Lal Sharma 2. Smt. Saraswati W/o Late Lala Ram R/o Ward no. 02, Sitarganj, P.S. Sitarganj, District: Nainital .…Appellants Versus State ……Respondent Delivery of Judgment : 17th August, 2007 Mrs. Pushpa Joshi, Advocate with Mr. Amit Kapari Advocate for appellant No. 1. Mr. P.S. Danu, Amicus curiae for appellant No. 2. Mr. G. S. Sandhu, Government Advocate with Mr. B.S. Parihar Brief Holder for respondent. Coram: Hon’ble Rajeev Gupta, C.J. Hon’ble J. C. S. Rawat, J. Per:- Hon’ble J.C.S. Rawat, J. This criminal appeal has been filed against the judgment & order dated 25.09.1991 passed by Sri R.N. Singh, the then First Addl. Sessions Judge, Nainital in S.T. No.293 of 1989 whereby the appellant Misri Lal was convicted and sentenced to undergo imprisonment for life and for a period of six monts’ R.I. under section 302 IPC and section 201 IPC respectively. Both the sentences were to run concurrently. Appellant Smt. Saraswati was convicted and sentenced to undergo imprisonment for life under section 302 IPC read with section 34 IPC. 2. The facts, in nutshell, are that the deceased Lala Ram was living with his wife Smt. Sarawati and his children in Ward No. 2, Kasba & P.S. Sitarganj. Appellant Misri Lal was tenant in the house of the deceased. Ram Bhan Singh PW1 was also living in the house of the deceased as tenant. Smt. Saraswati- the wife of the deceased had an illicit relationship with the appellant-Misri Lal. In the intervening night of 22/23.12.1988, the deceased Lala Ram alongwith his wife and children was sleeping in the house. In order to commit the murder of Lala Ram, appellants Misri Lal & Smt. Saraswati hatched a conspiracy and they committed the murder of Lala Ram. After sometime, Smt. Saraswati cried loudly and on this Ram Bhan Singh came near the room of Smt. Saraswati and found Lala Ram lying dead in the ‘varanda’. Ram Bhan Singh asked her as to who has committed the murder of Lala Ram. She replied that she did not know about it as she was sleeping. She further replied that when she came out of the room to ease her child, she found her husband lying dead in the varanda. Deceased Lala Ram had made an agreement of Rs. 1,50,000/- in favour of Kedar Dutt to sell the agricultural land, due to this reason the appellants were annoyed with the deceased. Thereafter, C. B. Bhatt scribed the report on the dictation of Ram Bhan Singh PW1-informant in the same night. Ram Bhan Singh PW1 went to the police station where he lodged the FIR (Ex.ka.1) on 23.12.1988 at about 1am. On the basis of report, a Chick FIR was prepared and necessary entries were made in the general diary. The investigation of this case was entrusted to S.I.-S. P. Singh, who immediately visited the spot. After appointing panches he prepared the inquest report and other connected papers. The dead body of the deceased was sent to the hospital for autopsy. The police recovered the blood stained ‘Darati’ (sickle) and clothes of the appellants on the pointing of accused Misri Lal. After completing the investigation, the Investigating Officer submitted the chargesheet before the court against the appellants. 3. After submission of chargesheet the appellants- accused were committed to the court of Sessions for trial and the trail court framed charges against the accused persons. They denied the charges levelled against them and claimed their trial. 4. The prosecution in support of its case examined nine witnesses. Ram Bhan Singh PW1 is the informant of this case. He was the tenant in the premises of his landlord-deceased. Seva Ram PW2 has proved the factum of recovery of ‘Darati’ and blood stained clothes of appellants. Kedar Dutt PW3 stated that an agreement of agricultural land by the deceased was executed in his favour. The prosecution has adduced the evidence of Latif PW4 who is the witness of taking sample of blood-stained soil from the place of occurrence. Dr. Anil Sah PW5 is the medical officer, who conducted the postmortem on the dead body of the deceased. Constable Fateh PW6 is the formal witness of the police. The prosecution has also adduced the evidence of Shakil Ahmad PW7 before whom the extra-judicial confession was made by the appellant Saraswati – wife of the deceased. S.I.- Vijendra Sharma PW8 is the Investigating Officer and he has submitted the chargesheet against the accused persons. Satyapal Singh PW9 is the investigating officer prior to Vijendra Sharma PW8 in this case. 5. The accused persons were examined u/s 313 Cr.P.C. and they have pleaded not guilty to the offence. They have stated that they have been falsely implicated in this case. 6. The appellants in the trial eventually were convicted and sentenced by the trail court a mentioned above. 7. We have heard learned counsel for the appellants and learned Government Advocate for the respondent- State. Perused the record carefully. 8. At the outset, it needs to be mentioned here that it is not disputed that the deceased Lala Ram died on account of ante-mortem injuries sustained by him on the date of occurrence. Dr. Anil Sah (PW5), Medical Officer conducted the postmortem of deceased on 23.12.1988 at 3:30p.m and found following ante- mortem injuries on the person of the deceased. (i) Incised wound 18cm x 4cm x vertebral column deep across the upper part of the neck, extending from 2cm below left lobule of ear upto 2cm below right angel of mandible outer right side of neck. (ii) Incised wound 4cm x 1.5cm x bone Deep on the front slightly left side of head 10cm above the left eye brow, present transversely. (iii) Incised wound 4cm x 1cm muscle deep outer base of nose both above wound extending upto medial level of left & right eye brow. (iv) Incised wound 4cm x 1.5cm x scalp deep on the post. aspect of head 10cm from the left ear, present transversely. (iii) Incised wound 6cm x 2cm. Bone deep present obliquely on the front of left wrist joint. In the opinion of Medical Officer, the death of the deceased was caused due to shock and excessive bleeding resulting from the ante- mortem injuries. The medical officer has proved the postmortem report Ex.ka.5. He has opined that the aforesaid injuries could be caused by sharp edged weapon like sickle. Dr. Anil Sah, Medical Officer found at the time of autopsy that the death of the deceased occurred within one day. Thus, it is amply established that deceased met a homicidal death on account of ante-mortem injuries sustained by him. 9. Now, we have to consider as to whether the appellants were responsible for causing the death of the deceased. 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 though 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. Before proceeding further, it needs to be mentioned here that so far as the motive of the crime is concerned, the prosecution has not alleged as to why the appellant Misri Lal has committed the murder of the deceased. It is admitted to the parties that the appellant Saraswati Devi is the wife of Lala Ram and Misri lal is a tenant in the same house. It was contended on behalf of the appellants that the prosecution has taken a case that the appellant Saraswati had an illicit relationship with the appellant Misri Lal, as such, they committed the murder of Lala Ram. But, the prosecution has not led any evidence to that effect. The prosecution has also adduced the evidence that Lala Ram executed an agreement of his land on 21.09.1988 in favour of Kedar Dutt PW3 and he received a sum of Rs. 5000/- towards the consideration of the said agreement. The prosecution has not led any evidence as to how the appellants were annoyed with this agreement. The prosecution has also not connected the said agreement with the commission of crime. Thus, the prosecution has miserabley failed to prove the motive of the crime. 12. Now, we will discuss the individual case of each appellant separately. At the first instance, we will examine the circumstances projected by the prosecution against the appellant Misri Lal. 13. The first circumstance projected against the appellant Misri Lal is that the appellant Misri Lal had been living in the premises of the deceased as tenant. The appellant Misri Lal and Saraswatti the wife of the deceased were talking with each other loudly in the ‘varanda’ at about 7:30pm on 22.12.1988. This fact has been deposed by Ram Bhan Singh PW1, who has deposed in his evidence that he was also a tenant of Lala Ram-deceased. He has further stated in his evidence that Misri Lal had also been living in the same house as a tenant on the date of incident. The appellants Misri Lala and Saraswati were speaking loudly in the early hour of night on 22.12.1988. When he went to their room he found that they were talking with each other and they were consuming liquor. Ram Bhan Singh PW1 is the informant of this case. He has further stated that in the night 22/23.12.1988 the wife of the deceased cried loudly inside her room. On hearing the cry of Saraswati-appellant, he woke up and went towards the room of Lala Ram-deceased where he Found the dead body of Lala Ram lying in the varanda. On being asked, the wife of the deceased informed him that she was sleeping in her room and when she came outside to ease her child she found her husband lying dead in the varanda. Thereupon, Ram Bhan Singh dictated the report to the scribe and lodged the same in the police station. This witness was cross examined at length by the defence. Ram Bhan Singh PW1 has stated in his cross examination that the fact of consuming liquor by Misri Lal and Lala Ram in the varanda before the incident at about 7:30pm on 22.12.1988 has not been recorded in the first information report. This fact did not find place in the first information report which was lodged by Ram Bhan Singh PW1. Apart from this, his statement under section 161 Cr.P.C. was recorded by the I.O, who has stated that he had not stated this fact to him. Though, the I.O. has stated in his evidence that he had stated this fact to him in his statement under section 161 Cr.P.C. If this fact has not been narrated by the witness then how the I.O. has recorded the said fact. It becomes doubtful. It leaves no room for doubt to discredit his testimony on this point. Assuming that Lala Ram deceased and appellant Misri Lal were sitting in the varands before the incident it would not be an incriminating circumstance because Lala Ram and Saraswati Devi were the husband and wife and the appellant Misri Lal was a tenant of Lala Ram in the same house. Merely sitting in the varanda together and consuming liquor would not lead to the inference that the appellants assembled there to commit the murder of Lala Ram. It is also not in the evidence that they were quarreling with each other or they were threatening that the appellants Misri Lal and Saraswati would kill Lala Ram. In view of this, the above circumstances cannot be taken into consideration as incriminating against appellants Misri Lal and Saraswati. 14. The other circumstance which has been projected by the prosecution against the appellant Misri Lal is that a the instance of Misri Lal, one Darati (sickle) and blood stained clothes including “Jarsi, gents underwear, ladies Dhoti and a patikot of appellant Saraswati” were recovered. The prosecution has adduced the evidence of Sewa Ram PW2 and S.I. Satyapal Singh PW9 (I.O.). S.I. Satyapal Singh PW9, Investigating Officer has stated in his evidence that the accused Misri Lal told him that he had concealed the ‘sickle’ by which he committed the murder of the deceased and he could also recover the blood stained clothes if he was taken to the place where these articles have been concealed by him. The appellant Misri Lal was taken to the east of the courtyard of Lala Ram where there was a heap of straw. The appellant Misri Lal discovered the sickle and above articles from there. Misri Lal then handed over the recovered articles to the I.O. The I.O. prepared the memo of the seized articles at the spot. Sewa Ram PW2 has also corroborated this fact in his evidence. Sewa Ram PW2 had stated in his evidence that at about 2pm on 23.12.1988 when he went to the house of Lala Ram he came to know that Lala Ram has been murdered and the appellant Misri Lal was in the custody of the police. In his presence, the appellant Misri Lal made the discoveries of the aforesaid articles. The memo Ex.ka.2 of the seized articles was prepared at the spot. He had also signed on the said memo. He has stated in his cross examination that the blood stains were present on the handle of Darati. Satyapal Singh PW9 I.O. and Sewa Ram PW2 had corroborated that fact that the ‘Darati’ was recovered at the instance of appellant Misri Lal. These witnesses have been cross examined at length but nothing could be elicited in their evidence to discredit the fact that the aforesaid articles were not recovered at the pointing out of appellant Misri Lal. It is also pertinent to mention here that the blood stained clothes and Darati were not sent to the serologist so that it could be ascertained that it was the blood of the deceased. It is also pertinent to mention here that the blood group of the deceased was not matched with the blood group found on the recovered articles. 15. The other circumstance projected by the prosecution against the appellant Misri Lal is that there is an extra judicial confession of Saraswati made before Shakil Ahmad PW7. To prove this fact, the prosecution has adduced the evidence of Shakil Ahmad PW7 who has deposed in his evidence that he was the neighbour of the deceased. He resides in the same vicinity where the deceased had been residing. He had stated in his evidence that the appellant Saraswati came to his house at about 4a.m in the morning of 23.12.1988 and fell on his feet. She told him that she had committed the murder of her husband at the behest of Misri Lal. She has further stated to him that she caught hold the legs of her husband and the appellant Misri Lal assaulted on his neck with Darati. Shakil Ahmad PW7 has stated as follows: ”yxHkx 2 1@2 lky dh ckr gS lqcg 4 cts djhc dk le; FkkA esjs ikl ykyjke dh chch vkbZA mlus eq>s vkokt nhA tc eSaus njoktk [kksyk rks og esjs iSjks es fxj xbZ vkSj dgus yxh eSus xyrh ls feJhyky ds dgus ij vius ifr ykykjke dks dRy dj fn;kA esjs ?kj iqfyl vkbZ gSA eq>s cpk fnft,A EkSaus ykykjke ds iSj idMs vkSj feJhyky us ykykjke dh xnZu ij njkrh pyk nhA 16. Thus, the appellant Saraswati had made an extra- judicial confession implicating herself and the appellant Misri Lal for committing the murder of the deceased Lala Ram. Now the question arises as to whether such confession implicating herself and Misri Lal in the commission of offence is admissible against the appellant Misri Lal. Section 30 of the Indian Evidence Act provides as under:- Section 30. Consideration of proved confession affecting person making it and others jointly under trial for same offence.- When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. Explanation:- “Offence”, as used in this section, includes the abetment of, or attempt to commit, the offence. 17. In view of above, before a statement by one of the accused persons can be taken into consideration against the other accused, the following conditions must be fulfilled:- (i) There must be a joint trial for the same offence (ii) It must be a confession. (iii) The confession of guilt must affect himself and the others, i.e. impliate the maker substantially to the same extent as the other co-accused. (iv) The confession of guilt must be duly proved. 18. It is apparent from perusal of above that both the accused persons must be tried jointly for the same offence. It is also essential from the perusal of the above provision that it goes without saying that such statement must also implicate the co-accused to the same extent as the maker. It is also well settled position of law that this section does not provide that such confession is evidence; still less does it say, that it may be the foundation of a case against the person implicated. The extra-judicial confession of an accused person is not evidence against a co-accused in the sense that conviction on that alone could be supported. It could only be taken into consideration. 19. Under section 30 of the Indian Evidence Act, the phrase used in the section is that ”it may be taken into consideration”. Perusal of the aforesaid section clearly reveals that it is not an evidence as provided under the Indian Evidence Act. In dealing with the confession of a co-accused, the Court must begin with other evidence produced by the prosecution and after it has formed its opinion as to the quality and effect of that evidence, then it is permissible to turn to the confession in order to receive assurance to the conviction of guilt. The confession of the co-accused cannot be treated as substantive evidence. When the substantive evidence is not sufficient to establish a prima-facie case, the confession cannot be used against the co-accused. It can only be used to lend assurance to the conclusion arrived at on the other evidence about the accused’s complicity in the crime. It can in no case be used to fill up gap in the prosecution case. The evidence of section 30 against the co-accused is of too weak a character to form the basis of conviction. The words “may take into consideration” used in the aforesaid section connote the idea that there must be other material beside the confession of a co-accused to form the basis of conviction. 20. In the case of State of M.P. Vs. Paltan Mallah & others 2005 SCC (Cri) 674, the Hon’ble Apex Court has held as follows:- “18. Another incriminating circumstance sought to be proved against the accused is the extra-judicial confession alleged to have been made by the ninth accused Paltan Mallah wherein he named A-1, A-2, A-5 and A-6. It is alleged that he made the confession to PW 105 Satyaprakash Nishad and A-9 is alleged to have disclosed to PW 105 that these accused persons had given him money and he murdered Shankar Guha Niyogi for the sake of money. Under Section 30 of the Evidence Act, the extra-judicial confession made by a co-accused could be admitted in evidence only as a corroborative piece of evidence. In the absence of any substantive evidence against these accused persons, the extra-judicial confession allegedly made by the ninth accused loses its significance and there cannot be any conviction based on such extra-judicial confession. The High Court, in our view, has given cogent and satisfying reasons for the acquittal of the accused A-1 to A- 8. We do not find any reason to interfere with such a finding, …………………………..” 21. In view of the above discussion, it is apparent that it is not independent evidence. It is also evident that this fact cannot be taken into account to fill the gap in the prosecution evidence. If the other evidence produced by the prosecution is found credible and cogent to convict the accused then it can lend an assurance to other relevant evidence bearing on the accused’s complicity in the crime. AS we have noticed earlier that the prosecution has been able to prove the only circumstance that a recovery of articles was made against the appellant Misri Lal. If there is no other prosecution evidence against the guilt of the co- accused, the evidence of Sewa Ram PW and Satyapal Singh PW9 I.O. to establish the recovery of the articles by themselves would not take the prosecution case any further. In the case of State of M.P. Vs. Kriparam 2005 SCC (Cri) 830, the appellant and two others were charged under section 302/34 IPC for committing the murder. The prosecution alleged that three accused persons attacked the deceased with deadly weapons and the deceased died instantaneously. During the course of investigation, the prosecution alleged that it recovered blood-stained clothes worn by the accused as also blood-stained axe which was used in attacking the deceased. The trial court convicted all three accused persons under section 302/34 IPC. In appeal, the High Court on re-appreciation of the evidence came to the conclusion that the prosecution has failed to establish the case against