Gopal Das Sahu vs State Of M.P

J.P.Gupta, J

This appeal has been preferred against the judgment dated 05/01/2008 passed by the Additional Sessions Judge, Baidhan District Sidhi, in Sessions

Trial No.156/2006 whereby the appellant has been convicted under section 302 of IPC for committing murder of Ramesh and sentenced him to

undergo R.I. for life imprisonment along with fine of Rs.1000/-, in default further R.I for 3 months as mentioned in the impugned judgment.

In brief, the facts of the prosecution case are that deceased Ramesh aged about 6 years was brother of Kiran (PW-9) and appellant have a evil eye

on her and intended to marry her while Kiran (PW-9) had no interest in him. When her marriage was going on the appellant, with a view to create

obstruction in her marriage, on 01/07/2006 near about 4 to 7 PM at Shiv Mandir premises in village Navjeevan Vihar, Police Station Vidhya Nagar,

District Sidhi committed murder of Ramesh by strangulation. When the deceased did not returned to the house his father Chitrakoot (PW-12) and

other family members during the search found Ramesh lying in unconscious condition in the place surrounded by the wall having no roof and was

taken to the hospital where he was declared to be brought dead and from the hospital information was given to the police station vide Ex.P-1 on the

basis of this information Margh Intimation was registered as Margh No. 38/2006.

During the margh inquiry, it was revealed that the deceased was last seen alive in the company of the appellant near the place of incident and he

also confessed the crime before his friend Vashit Prasad Upadhyay (PW-3), who also handed over one letter written by the appellant to Kiran, which

was lying at the window of the temple, then FIR as Crime No. 159/2006 under section 302 of IPC was registered against the appellant. As per report

of Dr. Ranbahadur Singh (PW-4), who conducted autopsy on the body of the deceased the nature of the death was homicidal caused by strangulation.

Appellant was arrested on 03/07/2006 and on his instance one diary Ex.P-25 and letter Ex.P24 written by the appellant was recovered vide seizure

memo Ex.P-11 and one T-shirt allegedly which was used for strangulation was also seized vide seizure memo Ex.P-10. Specimen writing of the

appellant was also taken and the seized articles Ex.P24, Ex.P-25 and specimen writing of the appellant were sent to State Examiner on questioned

documents. As per the report of Hand Writing Expert Ex.P-26, it was confirmed that the letter Ex.P-17 was written by the appellant.

Thereafter on completion of the investigation of Crime No.159/2006, charge sheet was filed before the Judicial Magistrate First Class concerned

and after committal the case was transferred to the Additional Session Judge, Baidhan District Sidhi.

During trial against the appellant/accused charges for the offence punishable under sections 302 of the IPC was framed. He abjured his guilt and

claimed to be tried. His defence is that he has been falsely implicated on account of enmity with Vashist (PW-3) and death might be caused

accidentally during the play with “Jhoolaâ€​ and in defence one witnesses Lalchand (DW-1) has been produced.

Learned Trial court after trial convicted and sentenced the appellant as mentioned earlier in the impugned judgment. The finding of the conviction

given by the learned trial court is based on circumstantial evidence of last seen of the deceased in the company of the appellant in the temple

premises, confession made with his friend Vashist (PW-3) and motive to create obstruction in the marriage of the deceased's sister with whom

appellant intended to marry.

On behalf of the appellant about finding of the learned trial court, it is contended that neither the circumstances have been proved beyond the

reasonable doubt nor the same are sufficient to come to the conclusion that the prosecution has established the fact that the appellant committed

murder of the deceased. The prosecution has failed to prove the fact that alleged letter Ex.P-17 was written by the appellant as it is not been proved

that the document Ex.P-24 and Ex.P-25 and the specimen handwriting of the appellant Ex.P-18 to Ex.P-23 were written by the appellant. In such

circumstance, the report and the statement of handwriting expert have no meaning. So far as evidence with regard to the last seen is concerned, only

it is said that at the time of the incident appellant was also in the temple premises, which was open to every body and no body has said that there was

no other person in the temple premises except the appellant. Hence on the basis of aforesaid evidence, it can't be said that only the appellant was seen

with the deceased when he was alive. So far as statement of Vashit (PW-3) with regard to extra judicial confession is concerned is not reliable as

there was dispute between the appellant and Vashit (PW-3) and have no cordial relation at the time of the incident and confession of the crime can be

made only before the person of confidence. Looking to the conduct of the witness before and after the incident, he can't be relied. In the

circumstance, the finding of the learned trial court deserves to be set aside and the appellant be acquitted of the offence.

Learned Public Prosecutor has supported the findings of the learned trial court and opposed the aforesaid contentions of the learned counsel for the

appellant stating that the prosecution has proved all the circumstances led to conviction of the appellant beyond the reasonable doubt and no

interference is required in the impugned judgment and prayed for rejection of this appeal.

Having considered the contention of learned counsel for the parties and on perusal of the record, in this case it is not controversial that the death of

Ramesh was taken place on 01/07/2006 and his dead body was found at Shiv Mandir temple in village Navjeevan Vihar, Police Station Vidhya Nagar,

District Sidhi and cause of death was strangulation. This fact has been proved by Dr. Ranbhadur Singh (PW-4) who conducted autopsy on the body

of deceased Ramesh stating that on 02/07/2006 he found wide ligature marks on the neck of deceased both side and the direction of the ligature marks

was up side from mouth to back side. In his opinion the cause of death was strangulation and the death was taken place within 24 hours and the

nature of the death was homicidal and he prepared postmortem report Ex.P-4. There is nothing in his cross-examination to discard his testimony.

Hence we hold that the death of the deceased was taken place on account of strangulation.

In the chief examination Dr. Ranbahadur Singh (PW4) has stated that the nature of the death was homicidal. However in his cross-examination he

has accepted that the boy can be died if he sit on the “Jhoola†made by tyre or rope and took excessive rounds then by tightening of rope or tyre

on the place of neck such strangulation may be possible. So far this case is concerned as per statement of father of the deceased, Chitrakoot (PW-12)

deceased Ramesh was lying in unconscious condition at the place having small room without roof where there was no “Jhoolaâ€. Investigation

Officer, Shivendra Singh Baghel (PW-13) who prepared the spot map Ex.P-14 did not find any “Jhoola†in the room where Ramesh was lying in

unconscious condition and “Jhoola†was lying on the tree of Shesham. This fact has been admitted by defence witness Lalchand (DW-1).

Therefore possibility of strangulation during the play with “Jhoola†is ruled out and in the circumstance, the opinion of the medical expert that

death was homicidal is believable. Hence it is held that nature of the death of the deceased was homicidal.

Now the question is whether the appellant strangulated the deceased with intention to cause his death. In this regard prosecution case is based on

circumstantial evidence. It is said that the deceased was lastly seen alive with the appellant within 4 hours of the death. In this regard Jitendra Kumar

(PW-8), who is 9 years old boy, have stated that on the relevant day near about 3 PM he was playing with the deceased in the temple premises

suddenly rain was started then he told deceased Ramesh to come back to the house, but deceased Ramesh denied saying that in the house he felt

warm and temple premises is cool. At that time in the temple near yagya shala the appellant was also standing and he himself came back to his house.

When the deceased did not come back the family members asked about Ramesh, then the family members went to search the deceased and near

about 8 PM Ramesh was found in the temple premises dead. In his cross examination the witness has accepted that he did not see that another

person was also in the temple premises or not. If we see aforesaid statement of the witness minutely, it is clear that we can't say that the aforesaid

statement establish the fact that the deceased was lastly seen alive in the company of the appellant. Both the deceased and appellant were in the

same premises of the temple but they were not talking to each other and possiblity of other person in the premises has not been ruled out by the

witness. The temple premises was not closed premises. It was open to all and the spot map Ex.P-14 shows that in the temple there was a room for

pujari and none of the prosecution witnesses have stated that pujari was not present in the premises. Indrajeet (PW-7) has stated that in the room of

pujari two naga saga were living. It is a matter of common knowledge that such type of temple premises number of person may be present like the

appellant. Hence the statement of the witness Jitendra Kumar (PW-8) is not sufficient to prove the aforesaid circumstance.

Leelawati (PW-2) mother of the deceased has also stated that on the date of incident near about 4 PM the rain was started and when her son did

not come back then she went to Shiv temple along with his nephew Jitendra Kumar (PW-8) as he was gone to play with Jitendra towards the temple

where she saw the appellant near the yagya shala and after seeing her the appellant tried to hide himself going towards back of yagya shala while

Jitendra Kumar (PW-8) has not stated that near about 4 PM he came with the mother of the deceased in the temple in search of deceased Ramesh.

Even though if the statement of Leelawati (PW-2) be taken as it is, then also it is not sufficient to establish the fact that the deceased was lastly seen

alive with the company of the appellant.

Another witness Kiran (PW-9) has stated that on the date of the incident his brother deceased Ramesh went to play in the temple premises where

the appellant was present and he called the deceased then the deceased went to the appellant and his cousin Jitendra came back alone. Therefore she

believed that the murder of deceased Ramesh was committed by the appellant but this statement is contrary to the statement given to the police,

which is Ex.D-4. Apart from it, if the aforesaid statement is considered as it is the same is not sufficient to prove the circumstance as witness has

claimed to see the appellant immediately when the deceased went to play in the temple and the deceased was found in dead condition after 4-5 hours

in the place where presence of other person reasonable possible.

In view of the discussion, the aforesaid evidence is not sufficient to prove the circumstance of last seen of the appellant with the deceased and

learnd trial court has committed error in recording the finding of last seen the deceased alive in the company of the appellant.

The next circumstance is extra judicial confession of the appellant with Vashit Prasad Upadhyay (PW-3) who has stated that the appellant is his

friend. He have interest in Kiran Bai and he fallen in her love and intended to marry her, but Kiran had no interest in him. On 30/06/2006 the appellant

said him that Kiran's marriage was going on 02/07/2007 and he was interested to prevent it anyhow then witness replied to him that he should have

inform to police that the girl is minor then marriage would not take place. After that the appellant replied that it is a lengthy procedure. If any family

member of the girl is killed then marriage would be postponed. Then he shown disagreement with the appellant and they disbursed. Thereafter on

01/07/2006 in the morning the appellant came in his house and asked him that if he brought any boy belonging to the family member of Kiran in pretext

of playing in the temple then he would kill the same. Then he replied that he should not be mad for Kiran and otherwise he would be ruined but he was

firm and at any cost he would prevent the marriage then the appellant annoyed with him and left his company and on the same day near about 10-11

PM he noticed the incident and had doubt on the appellant but did not disclose anything to anybody. On the next day on 02/07/2006 in the morning near

about 7 AM the appellant came to his house and he talked to him out of house. He was very afraid and said that what he said earlier had done the

same. Then he disclose that tomorrow he saw the deceased in the temple premises and in absence of other persons in the premises he strangulated

him and caused his death and you know why he had committed the sin. Hence he did not disclose this fact to anybody. Then the appellant replied that

what ever he want to do he had done and he would face the consequences. This witness further said when police asked him he narrated all the things

and he also handed over to the police a letter written by the appellant to Kiran, which he found lying on the window of the temple and which was

seized by the police vide seizure memo Ex.P-3.

It is said that document which was seized from Vashist Prasad Upadhyay (PW-3) vide seizure memo Ex.P-3 is Ex.P-17. Investigation Officer,

Shivendra Singh Baghel (PW-13) has stated that on 02/07/2006 on presentation of witness Vashit Prasad Upadhyay (PW-3) vide seizure memo Ex.P-

3, he seized the letter Ex.P-17. He further stated that on 03/07/2006 he arrested the appellant/accused and on his information seized from his house

one pocket diary having yellow colour with green border and one application as per seizure memo Ex.P-11. The application is Ex.P-24 and Diary is

Ex.P-25. He further stated that during the investigation on 3/07/2006 specimen writing of the appellant/accused was taken in the prescribed format

before the witness, which are Ex.P-18 to Ex.P-23 and the seized documents along with specimen writing of the appellant were sent to the State

Examiner. The State Examiner of questioned documents, R.P Pathak (PW-14) has stated that letter Ex.P-17 written by the person who written

specimen documents Ex.P-18 to Ex.P-23 and letter Ex.P-24 and the writing in the Diary Ex.P-25. In this regard detailed reasons have been given in

his report Ex.P-26 along with Ex.P-27.

The letter Ex.P-17 contains date of writing 28/06/2006 which reflects that the appellant fall in love with Kiran inviting Kiran to meet him on next

day at specific place and prosecution has placed reliance on it to strengthen the motive of the incident. However in view of us prosecution has failed

to prove beyond the reasonable doubt that letter Ex.P-17 was written by the appellant/accused as witness Vashist (PW-3) from whom it is said to be

recovered has not stated that the letter which was handed over by him to the police is the letter Ex.P-17. In other words before trial court he has not

identified it as the same letter which was handed over by him to the police. The application Ex.P-24 and Diary Ex.P-25 has been recovered on the

instance of the appellant/accused but this circumstance is not sufficient to prove the fact that same was written by the appellant/accused. Therefore,

any comparison of the writing of letter Ex.P-17 with the writing of appellant Ex.P-24 or writing in Diary Ex.P-25 have no meaning. So far specimen

writing Ex.P-18 to Ex.P-23 are concerned only Investigation Officer, Shivendra Singh Baghel (PW-13) has stated that it was taken before the witness

but no witness has stated that specimen writing was taken before him and same are Ex.P-18 to Ex.P-23.

The witness Ramsevak (PW-11) who is maternal uncle of the deceased before him the specimen hand writing was taken and along with other

witnesses his signature was also taken on the Ex.P-18 to Ex.P-23 but his statement he has not disclosed anything about it. In the case mainly based on

circumstancial evidence merely on the basis of the aforesaid statement of the Investigating Officer it is not safe to rely that the Ex.P-18 to Ex.P-23

are the writing of the appellant/accused. It can't be denied that the letter Ex.P-17 may also be got written from the accused at the time of taking the

aforesaid specimen writing. In such circumstance specimen writing taken in police custody by Investigating Officer himself in the case mainly based

on circumstantial evidence can't be relied.

In view of the infirmities indicated above, it can't be said that prosecution has established the fact beyond the reasonable doubt that letter Ex.P-17

and Ex.P-18 to Ex.P-23 were written by the appellant However the fact that the appellant oftenly teased to Kiran (PW-9) is proved. Kiran (PW-9)

has stated that 20-25 days before her marriage, when she went to fetch water, where appellant met her and said that let she love him and he want to

marry with her. In reply she said that he belong to the same village, he should not talk in this manner and if he will not refrain then she will disclose to

her mother. Thereafter she told his mother the misconduct committed by the appellant. Thereafter her mother went to the house of the appellant to

make a complaint about the aforesaid behaviour of the appellant. The mother of Kiran, Leelawati (PW-2) has also stated that on the basis of the

aforesaid complaint made by Kiran, she went to the house of the appellant to make the complaint to his parents where the appellant was also present

where the appellant admitted that in future he will not repeat the same thing. Further the father of Kiran, Chitrakoot (PW-12) and the brother

Rajendra Kumar (PW-10) has also corroborated the same thing. Hence, it is established that the appellant have an evil eye on Kiran.

Now the statement of Vashit (PW-3) is required to be appreciated and and analysised. There is no doubt that the evidence of extra judicial

confession with regard to commission of murder is sufficient to hold an accused guilty of commission of murder and no other corroboratory evidence

is must. If extra judicial confession made voluntarily can be relied by the Court along with other evidence for convicting the accused (See Mulk Raj

Vs. State of U.P (AIR 1959 SC 902) (Maghar Singh Vs. State of Punjab AIR 1975 SC 1320)

The value of the evidence as to the confession depend upon the veracity of the witness to whom it is made. It is not open to any court to start with

a presumption that extra judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the

confession was made and the credibility of the witnesses who speak to such a confession. The extra judicial confession made to a friend and not to a

stranger, could be relied upon. An extra judicial confessional statement made orally before a person with whom the makers of the confession has no

intimate relationship is not a very strong piece of evidence and in any event it can be used for corroboration. (See Mohd. Azad Vs. State of W.B

(AIR 2009 SC 1307, Shiva Karam Payaswami Tewar Vs. State of Maharashtra (AIR 2009 SC 1962), Sunil Rai Vs. Union Territory, Chandigarh

(AIR 2011 SC 2545). The Apex Court in the case of Pargam Singh Vs. State of Punjab (2014) 14 SCC 619 has laid down that extra judicial

confession by its very nature is rather a weak type of evidence and requires appreciation with great deal of care and caution. Where an extra judicial

confession is warranted by suspicious circumstances, its credibility becomes doubtful and it loses its importance. It's for this reason that court

generally looks for independent reliable corroboration before placing any reliance upon such a confession.

In view of the aforesaid pronouncements, it appears that if on meticulous analysis of the surrounding and other circumstances on record, it appears

that there exists ground to cause doubt on the veracity and voluntariness of the confession, the court may refuse to accept the same even it is

admissible in evidence. If evidence about confession comes from the mouth of the witness who appear to be unbiased, not even remotely inimical to

the accused can be based for conviction.

The Hon'ble Apex Court in the case of Shahdevan Vs. State of T.N (2012) 6 SCC 403 has held as under:-

(i) The extra judicial confession is a weak evidence by itself. It has tobe examined by the court with greater care and caution.

(ii) It should be made voluntarily and should be truthful.

(iii) It should inspire confidence.

(iv) An extra judicial confession attains greater credibility andevidentiary value if it is supported by a chain of cogent circumstances and is further

corroborated by other prosecution evidence.

(v) For an extra judicial confession to be the basis of conviction, itshould not suffer from any material discrepancies and inherent improbabilities.

(vi) Such statement essentially has to be proved like any other fact and in accordance with law.

In the light of the aforesaid legal principle with regard to admissibility and creditability of the extra judicial confession, the statement of the witness

Vashit (PW-3) has to be analysised. This witness has claimed to be a friend of the appellant but there is no other material on the record to establish

the fact that the appellant and the witness have a very thick intimacy at the time of the incident. In his cross-examination the witness has accepted

that in the year 2005 at the occasion of Depawali the appellant arranged a program of Ramlila in which this witness Vashit (PW-3) was not involved

by the appellant in arrangement and in this program one child was sitting in the front of the stage and witness was going towards child and appellant

prevented him to move towards the child and some quarrel was taken place between them.

The letter which was handed over to the Investigation Officer by the witness was found by Vashit (PW-3) on 28/06/2006 and it was handed over

to the police on 03/07/2006. The circumstance in which it was found are suspicious. The witness has stated that near about 10 PM on the window of

the temple one paper used for computer work in rolled shape was lying and this letter was written to invite Kiran to meet the appellant on next day on

29/06/2006. Therefore, it could not be left at the window, hence the story of founding the letter at the window of the temple is suspicious. It may be

possible that this letter may be given to Kiran and witness has falsely stated to find the letter at the window of the temple. The contents of the letter

shows that Kiran had interest in the appellant. Apart from it, if the witness had a good relations with the appellant he should have disclosed the fact of

finding of the letter to the appellant on 30/06/2006 when he meet him and also discussed about the letter and meeting with Kiran on 29/06/2006 but

such talk not taken place. The witness resides near the house of Kiran and distance is only 100 metre and have a no inimical relation even than he did

not disclose the ill intention of the appellant/accused with regard to prevent the marriage of Kiran and for this purpose his intention to kill any family

member till 30/06/2006. Even he did not disclose any doubt on 01/07/2006 when he rushed to the house of the deceased and noticing the fact of death

of the deceased such conduct is unnatural conduct of the witness.

Similarly the statement that on 02/07/2006 the appellant came to his house in morning 7 AM and after returning back by the mother of the witness

he was waiting on the road just to disclose the misdeed committed by him to the witness also shows unnatural conduct of the appellant as no prudent

man can admit commission of the aforesaid misdeed to the person of which having no thick relationship and confidence to disclose the aforesaid fact

just to share with him without any expectation favour or other benefit. Further the witness has not disclosed the circumstance to led him to disclose the

fact to the police.

In view of the aforesaid conduct of the witness Vashit (PW-3) we can't say that the evidence of extra judicial confession is creditable or

conviction of the appellant can be basis on it. In other words, the quality of the evidence came from the mouth of Vashit (PW-3) with regard to the

extra judicial confession of the appellant about the commission of the murder of the deceased can't be said to be of such degree on which without any

corroboratory evidence the appellant can be held guilty of the murder of the deceased.

In view of the discussions, we have no hesitation to come to the conclusion that the prosecution has failed to prove the circumstances beyond the

reasonable doubt against the appellant. Thus, the conviction and sentence of the appellant is contrary to the law and evidence. Hence the finding of

the learned trial court deserves to be quashed and this appeal is allowed and conviction and sentence of the appellant under section 302 of IPC for

commission of murder of deceased Ramesh are set aside. He is in custody since 04/07/2006, therefore, if he is not required in any other case, he shall

be released forthwith.

The appellant is in jail, hence a copy of this judgment be sent to the concerned trial court and jail authority for information and necessary action.

We also express our words of gratitude for the assistance rendered by Amicus Curiae.