Pardeshi Pahariya vs State of Chhattisgarh

R.S. Sharma, J.—This appeal is directed against judgment dated 17-8-2007 passed by Additional Sessions Judge, Dhamtari, Session Division Dhamtari in Sessions Trial No. 25/2006. By the impugned judgment, accused/appellant Pardeshi Pahariya has been convicted u/s 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay fine of Rs. 1,000/-, in default of payment of fine, to further undergo rigorous imprisonment for 4 months. Case of the prosecution, in brief, is as under:

Deceased Sakhinbai was wife of the appellant. Tularam Pahariya (PW-1) is their son. In the morning of 28-3-2006, the deceased did not go to the house of Tularam Pahariya (PW-1) to take tea as she used to go there daily. On this, Tularam Pahariya (PW-1) went to the house of deceased to see her. He saw that the deceased was lying dead in a room of her house, blood had oozed out of her left temporal region and spread in the room and the appellant was grumbling in an other room. He informed villagers Fuluram, Jaisingh, Mohan, Punau etc. and called them. The villagers came and saw dead body of the deceased at the place of occurrence. The appellant was present at the house and was grumbling. On being informed by Tularam Pahariya (PW-1), Sub-Inspector Anup Nag (PW-15) recorded Dehati Merg Intimation (Ex. P-1), First Information Report (Ex. P-18) was lodged by Tularam Pahariya (PW-1). The Investigating Officer reached the place of occurrence, gave notice (Ex. P-2) to Panchas and prepared Inquest (Ex. P-3) on the dead body of the deceased. The dead body was sent to Government Hospital, Dhamtari for post-mortem examination vide Ex. P-13. Dr. R. K. Tripathi (PW-17) conducted the post-mortem examination on the dead body of the deceased and gave his report (Ex. P-13), in which he found (i) incised wound, 4" x 2�" x bone deep on right side of neck and face, (ii) abrasion on left side of the face, 3�" x 3", (iii) abrasion, 1�" x 3/4" on left elbow, (iv) abrasion, 2�" x 1" on back side of left shoulder. On opening of injury No. (i), he found that multiple fractures were present on the cervical bone and main blood vessels were cut. He opined that cause of the death of the deceased was injury in cervical bone and fractures in cervical bone and haemorrhage.

In further investigation, Spot-Map (Ex. P-4) was prepared. Merg Intimation (Ex. P-17) was recorded. Plain soil and blood stained soil were seized from the place of occurrence vide Ex. P-6. A blood stained iron axe, lying in the courtyard, was seized vide Ex. P-7. The appellant was arrested vide Ex. P-21. The seized articles were sent to Forensic Science Laboratory, Raipur for chemical examination vide Ex. P-22 and P-23. Report (Ex. P-24) was received therefrom.

After completion of the investigation, charge-sheet was filed against the appellant in the Court of Chief Judicial Magistrate, Dhamtari, who, in turn, committed the case to the Court of Session, Raipur, from where it was received on transfer by Additional Sessions Judge, Dhamtari, Session Division Dhamtari, who conducted the trial and convicted and sentenced the appellant as mentioned above.

Shri Vishwanath Goswami, learned counsel for the appellant argued that the finding of guilt recorded on the basis of extra-judicial confession and circumstantial evidence is unreasonable. Extra-judicial confession made by the appellant is not reliable. He further argued that it is well settled that a strong suspicion is no substitute for a proof. Therefore, the finding recorded by the learned Additional Sessions Judge is not sustainable and the appellant deserves to be acquitted.

Shri D. K. Gwalre, learned Government Advocate for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Additional Sessions Judge do not warrant any interference by this Court.

We have heard learned counsel for the parties at length and have perused the record of Sessions Trial No. 25/2006. Admittedly, there is no eye-witness to the incident and the case of the prosecution is based on the circumstantial evidence. Main circumstances, which the learned Additional Sessions Judge appears to have taken note of, are thus:

(i) This is a house-murder where the deceased and the appellant were residing together,

(ii) The deceased and the appellant were last seen together, and

(iii) Extra-judicial confession of the appellant regarding commission of murder of the deceased.

It is well settled that with a view to base a conviction on circumstantial evidence the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances from which the conclusion of guilt is to be drawn should be fully established. It is also well settled that suspicion, howsoever grave it may be, cannot be substitute for a proof and the Court should take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence.

In State of U.P. Vs. Ram Balak and Another, the Hon''ble Supreme Court has held thus:

9. it has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh Vs. State of Rajasthan, Eradu and Others Vs. State of Hyderabad, , Earabhadrappa Vs. State of Karnataka, State of U.P. Vs. Sukhbasi and Others, , Balwinder Singh alias Dalbir Singh Vs. State of Punjab, and Ashok Kumar Chatterjee Vs. State of M.P., he circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram Vs. State of Punjab, , it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.

We may also make a reference to a decision of this Court in C. Chenga Reddy and Others Vs. State of Andhra Pradesh, wherein it has been observed thus: (SCC pp. 206-07, para 21)

In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.

In Padala Veera Reddy Vs. State of Andhra Pradesh and others, , the Hon''ble Supreme Court has held thus:

........... This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests:--

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.........

In Ramreddy Rajeshkhanna Reddy and Another Vs. State of Andhra Pradesh, the Hon''ble Supreme Court has held thus:

The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration.

(See also Inspector of Police, Tamil Nadu Vs. John David, and State of U.P. Vs. Satish,

Now, we shall proceed to examine the circumstantial evidence adduced by the prosecution in order to prove the offence against the appellant and to see whether the prosecution has been able to prove the offence against the appellant in conformity with the above principles.

So far as the question regarding circumstance that this is a house murder and that too where the appellant and the deceased were residing together is concerned, it is not disputed that the appellant and his wife Sakhinbai (the deceased) were residing together in the house of the appellant. It is not disputed that the death of the deceased was homicidal in nature.

Hostile Witness:

In the case on hand, Tularam (PW-1), Punauram (PW-2), Kailash (PW-3), Kumeshwari Bai (PW-4), Bhuneshwar Manikpuri (PW-10), Jaisingh Kamar (PW-11), Fuluram Kamar (PW-12) and Sagar Kamar (PW-13) were declared hostile witnesses and were cross-examined by the prosecution.

In Paramjeet Singh @ Pamma Vs. State of Uttarakhand, , the Hon''ble Supreme Court observed as follows:

The fact that the witness was declared hostile at the instance of the public prosecutor and he was allowed to cross-examine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The court should be slow to act on the testimony of such a witness; normally, it should look for corroboration to his testimony. (Vide: State of Rajasthan Vs. Bhawani and Another,

This Court while deciding with the issue in Radha Mohan Singh @ Lal Saheb and Others Vs. State of U.P., observed as under (Para 7 of AIR, AIR SCW):

......It is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof....

In Rajendra and Another Vs. State of Uttar Pradesh, this Court observed that merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable.

This Court reiterated a similar view in Govindappa and Others Vs. State of Karnataka, observing that the deposition of a hostile witness can be relied upon at least upto the extent he supported the case of the prosecution.

In view of the above, it is evident that the evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution.

In Mrinal Das and Others Vs. The State of Tripura, , the Hon''ble Supreme Court observed as follows:

....... It is settled law that corroborated part of evidence of hostile witness regarding commission of offence is admissible. The fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to cross-examine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the Court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The Court should be slow to act on the testimony of such a witness, normally, it should look for corroboration with other witnesses. Merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. To make it clear that evidence of hostile witness can be relied upon at least up to the extent, he supported the case of prosecution. The evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution.

On the above enunciation of law, merely on account of the above witnesses declared hostile, their evidence cannot be discarded in toto. Their evidence can be relied upon at least upto the extent they supported the case of the prosecution.

Tularam (PW-1) deposed that the appellant is his father and the deceased was his mother. His father and mother were living together in a separate house and he was living with his wife in a separate house. His mother used to come to his house for taking tea daily by 6 a.m. On the fateful day, when his mother did not come to his house by 6 a.m., he went to the house of his mother and father. He saw there that his mother was lying smeared with blood. Weeping, he came back and told the villagers that his mother was lying smeared with blood. He took the villagers and showed his mother. At that time, his father was grumbling in a room. Villagers Kailash, Punauram, Rajendra, Fuluram and Jaisingh etc. had come to the house of his mother and father. He further deposed that it is true that 4-5 days prior to the fateful day, he and his father (the appellant) had inculcated his mother (the deceased) to live with the appellant in Bade Ghar (House), as a result thereof, his mother was living with the appellant in the house of the appellant.

Kumeshwari Bai (PW-4) deposed that the deceased was her mother-in-law and the appellant is her father-in-law. The deceased and the appellant were living together in a separate house. The appellant used to suspect character of the deceased. On this account, the deceased had lived in her maternal house for about 1 year 3 months prior to the fateful day, the deceased came back and started living again with the appellant. She further deposed that 4-5 days prior to the fateful day, the appellant had again suspected character of the deceased and on this account, the deceased had come to her house. The deceased was inculcated and was again sent back to the house of the appellant.

Inspector Anup Nag (PW-15) deposed that he prepared spot-map (Ex. P-4). He further deposed that he gave notice (Ex. P-2) to the Panchas and prepared inquest (Ex. P-3) on the dead body of the deceased. He sent the dead body of the deceased to Government Hospital, Dhamtari for post-mortem examination vide Ex. P-13. Ex. P-4 is the spot-map of the place of occurrence, i.e., the house of the appellant. From its perusal, it appears that dead body of the deceased was lying in a room of the house of the appellant. In inquest (Ex. P-3) also, finding of dead body of the deceased is shown at the house of the appellant.

Punauram (PW-2) deposed that on the fateful day, Tularam (PW-1) came to his house at about 6 a.m. and told that the appellant had killed the deceased. Thereafter, they went to the house of the appellant. When Patel asked the appellant about the occurrence, the appellant, at the first instance, said that he did not know. When the appellant was asked again, he said that he had killed the deceased with an axe. The axe was lying near the head of the deceased. He further deposed that when they had gone to the house of the appellant, they saw that the appellant was sitting in another room of his house and was grumbling from there that he had killed the deceased with the axe. They saw that the axe was lying in their front.

Jaisingh Kamar (PW-11) deposed that on the fateful day, in the morning hours, Tularam (PW-1) came to his house and told that the deceased had been killed by the appellant. He went to the place of occurrence and saw that blood was oozing out of the body of the deceased.

Sagar Kamar (PW-13), who was declared hostile by the prosecution, deposed that the deceased had come to his house and told that the appellant used to commit Marpeet with her, 4 months prior to the fateful day, the deceased was living with the appellant.

Saraswati Bai (PW-18), who was also declared hostile by the prosecution, deposed that the deceased was her Nanad (sister of husband). She further deposed that when the deceased had come to her house, she had told that the appellant used to commit Marpeet with her.

Asharam (PW-19) deposed that the deceased had told him that the appellant used to commit Marpeet with her and doubts her character. The appellant had taken her to his house 4-5 months prior to the fateful day.

Punauram (PW-2), Kailash (PW-3), Bhuneshwar Manikpuri (PW-10) and Jaisingh Kamar (PW-11) deposed that on the fateful day, Tularam (PW-1) had come to their houses at about 6 a.m. and told that the appellant had killed the deceased. Thereafter, they had gone to the house of the appellant. At that time, the appellant was present at his house.

From the above evidence, it is evident that the appellant and the deceased were living together at the house of the appellant on the fateful day. It is also evident that the relationship between the appellant and the deceased was not cordial. It is evident that the dead body of the deceased was found at the house of the appellant.

The time of incident is the intervening night of 27-3-2006 to 28-3-2006. The deceased was living with the appellant in the house of the appellant and the dead body of the deceased was found in the house of the appellant in the morning of 28-3-2006. Therefore, it is evident that the deceased was last seen alive in the company of the appellant and the deceased had sustained near about 4 injuries on her person. Only two persons, i.e., the appellant and the deceased were present in the house. The deceased died as a result of the fatal injuries.

In Gura Singh Vs. The State of Rajasthan, the Hon''ble Supreme Court observed as follows:

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 and Another Vs. The State of Vindhya Pradesh, this Court again in Maghar Singh Vs. State of Punjab, , 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 and Others Vs. State of M.P., 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 Himachal Pradesh, 6, 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 u/s 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 scrutinised. To the same effect is the judgment in Baldev Raj Vs. State of Haryana, After referring to the judgment in Piara Singh and Others Vs. State of Punjab, , this Court in Madan Gopal Kakkad Vs. Naval Dubey and Another, , 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.

In Aftab Ahmad Anasari Vs. State of Uttaranchal, , the Hon''ble Supreme Court observed as follows:

Though extra-judicial confession is considered to be a weak piece of evidence by the courts, this Court finds that there is neither any rule of law nor of prudence that the evidence furnishing extra-judicial confession cannot be relied upon unless corroborated by some other credible evidence. The evidence relating to extra-judicial confession can be acted upon if the evidence about extra-judicial confession comes from the mouth of a witness who appears to be unbiased and in respect of whom even remotely nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused.

In State of U.P. Vs. M.K. Anthony, this Court, while explaining the law relating to extra-judicial confession, ruled that if the words spoken by the witness are clear, unambiguous and unmistakable, one showing that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction. According to this Court, in such a situation, to go in search of corroboration itself tends to cause a shadow of doubt over the evidence and if the evidence of extra-judicial confession is reliable, trustworthy and beyond reproaching, the same can be relied upon and a conviction can be founded thereon.

About the extra-judicial confession, Tularam (PW-1) deposed that it is true that on being asked by them, the appellant told that he had killed the deceased with an axe and had thrown the axe in the courtyard. He further deposed that thereafter he had gone to police station for lodging the FIR (Ex. P-18).

Punauram (PW-2) also supported the evidence of extra-judicial confession. Bhuneshwar Manikpuri (PW-10) deposed that it is true that the appellant told that he killed the deceased because she did not love him. It is true that the appellant had confessed before Tularam (PW-1) and villagers that he killed the deceased with an axe because she did not love him. Jaisingh Kamar (PW-11) deposed that it is true that the appellant was sitting in an room of the house and was grumbling that the deceased did not love him, therefore, he killed her with an axe and threw the axe in the courtyard. Fuluram Kamar (PW-12) deposed that it is true that the appellant was grumbling from inside the house that the deceased did not love him, therefore, he killed her with an axe.

Dr. R. K. Tripathi (PW-17) deposed that he conducted post-mortem examination on the dead body of the deceased and gave his report (Ex. P-13), in which he found above injuries and the death was homicidal.

In the light of above enunciation of law, we are of the view that on 28-3-2006, the appellant had made confessional statement before Tularam (PW-1), Punauram (PW-2), Kailash (PW-3), Bhuneshwar Manikpuri (PW-10) and Jaisingh Kamar (PW-11). Tularam (PW-1) is son of the appellant. He had no motive to falsely implicate the appellant. Other witnesses are independent witnesses. Their evidence are natural, cogent and reliable. Therefore, the evidence adduced by the prosecution regarding extra-judicial confession is reliable and can be based for conviction.

The net result of the above discussion is that the prosecution has proved satisfactorily and beyond shadow of doubt the above circumstances. The appellant had motive to kill the deceased. The cumulative effect of the abovementioned proved circumstances taken together is conclusive in establishing the guilt of the appellant. The chain of circumstantial evidence is complete and does not leave any reasonable ground for conclusion consistent with the innocence of the appellant. The chain of circumstances is such as to show that within all human probability the murder of the deceased was committed by the appellant and none else. Thus, this Court does not find any substance in the appeal and the same is liable to be dismissed. Accordingly, the appeal fails and is hereby dismissed.