Mamta Yadav vs State Of Chhattisgarh

Goutam Bhaduri, J

The present appeal is against the judgment of conviction and order of sentence dated 28.07.2012 passed by the Fourth Additional Sessions Judge, Durg in S.T. No.218/2011 whereby the appellant has been convicted under Section 302 & 201 of the Indian Penal Code (for short ‘the IPC’) and sentenced her to undergo Life Imprisonment and R.I. for four years respectively with usual default stipulations.

Case of the prosecution, in brief, is that when one Lakhan Yadav working in the agricultural field (Mahisasur Khar) situated at village Limtara, he saw the fingers of hand coming out from surface of field on which he informed the same to the land owner Kunjlal Dewangan (PW-1). Subsequently, after inspection dead body was exhumed and the same was found to be of a lady. An application was given to the S.D.M. Chavani. Thereafter, site map (Nazari Naksha) was prepared and the dead body was sent for postmortem. The FIR (Ex.P-12) was registered for offence under Sections 302 & 201 of the IPC. On postmortem, the death was found to be homicidal in nature. On 15.03.2011 Sarpanch of village namely; Jhalaram Madhariya (PW-2) along with other panchas made an enquiry from the accused and her husband Suresh Yadav Oriya, wherein she admitted that she had killed her elder sister Chhaiyya (since deceased) two months prior to the date of recovery of dead-body. Thereafter, the Sarpanch had sent a communication dated 16.03.2011 (Ex.P-6) to the City Superintendent of Police. Subsequently, on 17.03.2011, on the basis of memorandum (Ex. P-7), the stone was recovered as article 'F', vide seizure memo (Ex. P-8). The said article i.e. stone when was sent for FSL, blood was found on it. On the basis of memorandum, seizure and extra judicial confession made by the accused, the charge-sheet was filed.

During trial the appellant/accused abjured her guilt and stated that she is not familiar with the language and her thumb impression was obtained on papers to record the confession. The prosecution examined as many as 9 witnesses and 24 documents. Upon appreciation of evidence, the trial Court came to a finding that the appellant has committed the offence and convicted & sentenced her as mentioned above. Thus, this appeal.

Learned counsel appearing for the appellant would submit that the entire case is based on extra judicial confession which is a very weak type of evidence and statement of Jhalaram Madhariya (PW-2) would show that while such alleged confession was made, the appellant was already in police custody and the confession was made, which was not voluntary. He would further submit that the memorandum was obtained on 17.03.2011 at about 05.00 pm and subsequently the recovery of the stone was made wherefrom the dead body was exhumed on the same day. In the FSL report (Ex.P-22) it is stated that blood like stains are found, but it has not been opined that it is human blood or any other to connect it with the deceased or the accused. Learned counsel would also submit that the entire conviction is based on the presumption and hence no conviction could have been passed on this evidence. Therefore, the appeal deserves to be allowed by setting aside the impugned judgment of conviction and order of sentence.

Learned counsel appearing for the State, per contra, would submit that the conviction is based on extra judicial confession supported by the corroborative evidence of recovery of stone, which contains the human blood. The confession was made before the Panchayat and was without any pressure and undue influence. Consequently, when the confession is corroborated by the recovery of stone, containing the blood it cannot be stated that the conviction is bad in law. He would submit that the impugned judgment is well merited which do not call for any interference of this Court.

We have heard learned counsel for the parties and perused the record.

Primary reading of the impugned judgment would show that the conviction has been made on the basis of extra judicial confession made by the accused.

The Supreme Court in the matter of Sahadevan and Another v State of Tamil Nadu {(2012) 6 SCC 403} held thus at paras 15.1 and 15.8 :

15.1 In Balwinder Singh v. State of Punjab, this Court stated the principle that : (SCC p. 265, para 10)

An extra-judicial confession, by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extra judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance.

xxx xxx  xxx

15.8 Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. The extra judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it. (Ref. Sk. Yusuf v. State of W.B. and Pancho v. State of Haryana).

Recently, the Supreme Court in the matter of Union of India and others Versus Major R. Metri No.08585N {(2022) 6 SCC 525} has observed about the conviction on the basis of extra judicial confession and held that extra judicial confession is a weak piece of evidence. Unless such a confession is found to be voluntary, trustworthy and reliable, the conviction solely on the basis of the same, without corroboration, would not be justified. It held thus at paras 44 & 45 :

This Court in Sahadevan v. State of T.N., after surveying various judgments on the issue, has laid down the following principles: (SCC pp.412-13, para 16)

“The principles

Upon a proper analysis of the above referred judgments of this Court, it will be appropriate to state the principles which would make an extra judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra judicial confession alleged to have been made by the accused:

(i) The extra judicial confession is a weak evidence by itself. It has to be 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 and evidentiary 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, it should not Mamta Yadav v State of Chhattisgarh 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.”

It could, thus, be seen that the extra judicial confession is a weak piece of evidence. Unless such a confession is found to be voluntary, trustworthy and reliable, the conviction solely on the basis of the same, without corroboration, would not be justified.

In the backdrop of such parameters laid down by the Supreme Court, we have examined the nature of evidence led by the prosecution. There is no dispute about the recovery of dead-body of a lady, which was of deceased Chhaiyya and the death was homicidal in nature. The postmortem report (Ex. P-13) would show that death was due to facial injury and the injuries were caused by round and blunt object. According to the Dr. Shivnarayan Majhi (PW-7), who conducted postmortem, the injuries were antemortem in nature and the ligature mark was postmortem in nature. The death was homicidal in nature. To connect this homicidal death with the accused, the prosecution relied on the extra judicial confession.

We have examined the evidence of the star witnesses namely; Jhalaram Madhariya (PW-2) sarpanch of the village and Shiv Kumar Chauhan (PW-3), Up-sarpahch of the village. Jhalaram Madhariya (PW-2) had stated that after the dead-body was found, the police came to the spot, exhumed the body and the map was prepared vide Ex. P-5. On 16.03.2011 he sent a letter to the City Superintendent of Police that on enquiry on 15.03.2011 the accused admitted that she has killed her sister by way of stone. According to this witness, on 15.03.2011 the accused was already in the police custody meaning thereby it shows that the alleged confession was made by the accused while she was in custody. Likewise the statement of Shiv Kumar Chauhan (PW-3) had stated that on 15.03.2011 when they made an enquiry from the accused at that time two police personnel were present and in their presence the enquiry was made where the accused confessed that she has killed her sister. Ex. P-6 would show that on 16.03.2011 a written report was sent to the C.S.P. that on 15.03.2011 when enquiry was made from the accused in respect of the dead-body she confessed that she has killed her sister by way of stone and thereafter has buried the dead body in the nearby field. If the accused was in custody on 15.03.2011 what was the necessity to write the same facts again on 16.03.2011 and, therefore, makes it ambiguous. Further coming to the memorandum Ex. P-7 and recovery Ex. P-8, Shiv Kumar Chauhan (PW-3) who is a witness to the memorandum and recovery has stated that the police personnel asked him to put his signature on the papers and in order to support the police he has signed. He further stated that he is unable to explain the contents of it.

The Supreme Court in the matter of Mani v. State of Tamilnadu {(2009) 17 SCC 273} held that the discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery.

The FSL report in this case though speaks about presence of blood but whether it was human blood or it belonged to the deceased or the accused has not been put forth. Merely a blood stained stone was recovered from the spot itself wherein the dead-body was buried, the conviction cannot be made when the extra judicial confession itself is doubtful.

In view of the foregoing, we are of the view that the guilt of the accused/appellant has not been proved by the prosecution beyond reasonable doubt. Therefore, the trial Court has committed serious illegality while convicting the appellant herein.

Accordingly, the conviction and sentence imposed upon the appellant under Sections 302 & 201 of the IPC are hereby set aside and she is acquitted of the said charges leveled against her. The appellant is on bail and she is not required to surrender before the trial Court. However, the bail bonds shall remain in operation for a period of six months as required under the provisions of Section 437-A of Cr.P.C. The appellant shall appear before the higher Court as and when directed.

In the result, the instant appeal is allowed.