Rambharosh @ Konda vs State of M.P. (Now C.G.)

Hon''ble Shri Sunil Kumar Sinha, J.—This appeal is directed against the judgment dated 15th of July, 1996 passed in Sessions Trial No. 255/95 by the Additional Sessions Judge, Sakti. By the impugned judgment the appellant has been convicted u/ss 302 & 201 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 5,000/- and R.I. for 5 years and to pay fine of Rs. 1,000/- with default sentences under each count with further direction to run the sentences concurrently. The facts, briefly stated, are as under :--

Deceased-Dokri Bai was aunt of the appellant. She was an old lady. She was issueless. The appellant was the successor of the property of her Branch. She was residing with the appellant. The case of the prosecution is that in the intervening night of 10th & 11th of February, 1995, the appellant committed murder of the deceased and threw her dead body in a ghurwa (a deep pit prepared for throwing cow-dung and waste material) situated near his house. Thereafter the appellant went to the police station lodged a confessional F.I.R. (Ex.-P/12) on 14.2.95. Merge intimation (Ex.-P/13) was also recorded at the instance of the appellant. The appellant was taken into custody and his memorandum statement (Ex.-P/5) u/s 27 of the Evidence Act was recorded and the dead body of the deceased was seized at the instance of the appellant vide seizure memo Ex.-P/4. A stone was also seized on his instance vide seizure memo Ex.-P/6. Inquest (Ex.-P/1) was prepared and the dead body was sent for post-mortem. The Autopsy Surgeon noticed multiple serious injuries on the body of the deceased and opined that the cause of death was coma and injuries over the head and fractures of zygomatic, temporal, frontal, parietal and occipital bones and it was homicidal in nature. The post-mortem report is Ex.-P/9. The seized articles were sent for their chemical examination to Forensic Science Laboratory (F.S.L.), Sagar, but no report could be filed. The deceased was missing since the night of 10th February, 1995, therefore, a missing report was also lodged by one Digamber which was entered as sana (Ex.-P/18-C) dated 13.2.95. In further investigation, it revealed that the deceased had made extra-judicial confession before Garibdas(PW-1), and Vijay Kumar (PW-2). There was no directed evidence and the case of the prosecution was based on circumstantial evidence.

Following are the circumstances, on which, the prosecution relied :--

(i) Extra-judicial confession made by the appellant before Garibdas (PW-1) and Vijay Kumar (PW-2);

(ii) Dead body of the deceased was seized from a ghurwa on the discovery statement made by the appellant; &

(iii) The appellant had motive to commit murder of the deceased as he would be succeeding the properties of the deceased after her death.

The learned Sessions Judge relied on the above circumstances and held that it was proved beyond all reasonable doubts that the appellant committed murder of the deceased and thereafter threw dead body in ghurwa, therefore, he was liable for punishment u/ss 302 & 201 IPC.

Mrs. Ranjana Jaiswal, learned Counsel appearing on behalf of the appellant, argued that extra-judicial confession was not proved; confessional F.I.R. was not admissible; it was not proved that the appellant gave discovery statement and the dead body was recovered at the instance of the appellant; ghurwa is situated at an open place and it was accessible to all, therefore, the appellant cannot be held liable for recovery of the dead body from ghurwa.

On the other hand, Mr. Arvind Dubey, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court.

We have heard learned Counsel for the parties at length and have also perused the records of the sessions case.

So far as the argument regarding confessional First Information Report is concerned, the Apex Court held in the matter of Aghnoo Nagesia Vs. State of Bihar, , that "The first information report recorded under S. 154, Criminal P.C. as such is not substantive evidence, but may be used to corroborate the informant under S. 157 of the Evidence Act or to contradict him under S. 145 of the Act, if the informant is called as a witness. Where the accused himself gives the first information, the fact of his giving the information is admissible against him as evidence of his conduct under S. 8 of the Evidence Act. If the information is non-confessional, it is admissible against the accused as an admission under S. 21 of the Evidence Act and is relevant. But a confessional first information report by the accused to a police officer cannot be used against him in view of S. 25 of the Evidence Act." The Apex Court also relied on the decisions rendered in the matters of Faddi Vs. The State of Madhya Pradesh, Nisar Ali Vs. The State of Uttar Pradesh, & 21 CWN 818 (Privy Council) Therefore, the confessional first information report cannot be read against the appellant.

Garibdas (PW-1) and Vijay Kumar (PW-2) are the witnesses of extrajudicial confession. Garibdas (PW-1) was also a witness of inquest and seizure. He did not depose about the extra-judicial confession allegedly made by the appellant before him. He was declared hostile and was cross-examined by the Public Prosecutor. In cross-examination, Para-8, though he admitted that the appellant had made extra-judicial confession before him, but he added that the appellant said alt this in the police station. Vijay Kumar (PW-2) deposed that on one day in the morning, the appellant came to his house and told that he has killed his aunt (deceased). At that time Sudhiyarin Bai (PW-3), Garibdas (PW-1), Ghasiya Ram (PW-4) and Chhedilal (PW-6) etc., 7-8 persons were present there. The appellant told that he had killed his aunt by assaulting her by stone. In Para-3 in examination-in-chief, he deposed that before her death, the deceased used to sleep in the night in the house of Sudhiyarin Bai (PW-3). His 161 Cr.P.C. statement was recorded on 14.2.95. In his 161 Cr.P.C. statement, he did not depose about the extra-judicial confession made by the appellant before him. On the contrary, he gave story that while the deceased was missing, Daroga had visited his village in relation to some other case and it was told to him, then Daroga said him for sending the appellant to lodge a report. Sudhiyarin Bai (PW-3), Ghasiya Ram (PW-4) and Chhedilal (PW-6) have also not supported the facts of extra-judicial confession allegedly made by the appellant before Vijay Kumar (PW-2).

In appreciation of evidence of Garibdas (PW-1) and Vijay Kumar (PW-2), we find that the fact of extra-judicial confession made before Vijay Kumar (PW-2) was an omission in his diary statement and Garibdas (PW-1) did not prove it as he stated that the appellant told all this in police station. It has been laid down in many cases by the Supreme Court that if the evidence about extra judicial confession comes from the mouth of witness/witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey 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 if it passes the test, the extra judicial confession can be accepted and can be the basis of a conviction. In light of the above facts and circumstances of the case, we find that the learned Sessions Judge erred in holding that it was proved that the appellant made extrajudicial confession before Garibdas (PW-1) and Vijay Kumar (PW-2). We are of the view that the fact of extra-judicial confession was not proved beyond all reasonable doubts.

So far as circumstance of memorandum statement is concerned, according to the prosecution the memorandum (Ex.-P/5) was recorded on 14.2.95. In Ex.-P/5, nothing has been mentioned at the space left for endorsement of time of memorandum. There is a clear manipulation by different bail-pen in the last portion of memorandum and it has been added that .... .... Apart from the above, this discovery statement does not bear the signature of the appellant. The recovery panchnama (Ex.-P/4), consequent to the above memorandum (discovery statement) also does not bear time. It also does not bear the signature of the appellant. Garibdas (PW-1) witness of memorandum has turned hostile. He has not proved either discovery statement or the recovery of the dead body. All this creates doubt on the recovery of the dead body at the instance of the appellant. The other witness of discovery statement is Ghasiya Ram (PW-4). He has deposed about the memorandum and recovery of the dead body and he also deposed about seizure of cloths and stone.

In Jackaran Singh Vs. State of Punjab, , the Supreme Court held that "The absence of the signatures or the thumb impression of an accused on the disclosure statement recorded u/s 27 of the Evidence Act detracts materially from the authenticity and the reliability of the disclosure statement". Therefore, the discovery statement made by the appellant and the seizure in consequence thereof appears to be doubtful.

As per map (Ex.-P/11), the ghurwa was situated at a distance of 113 feet from the house of the appellant. It was at an open place and there is no evidence that it was in exclusive possession of the appellant. Therefore, it was accessible to other persons also. In this situation, recovery of the dead body from the ghurwa cannot be attributed to the appellant. The alleged seizure of blood stained cloths and stone at the instance of the appellant would also not assume importance because there is no F.S.L. report to show that the blood like stains found over these articles were in fact blood much less human blood.

Mr. Arvind Dubey, learned Panel Lawyer, has argued that the appellant alone had motive to commit murder of the deceased as he would be succeeding the entire property of the deceased. Significance of relevancy of motive would primarily depend upon the facts and circumstances of a given case. Like any other circumstance, the circumstance of motive has to be proved beyond all reasonable doubts and it should be sufficient for committing an offence like murder. On appreciation of evidence on record, we find that the evidence of ''motive'' is shaky. Even if it is held that the appellant had motive to commit murder of the deceased, in light of the above discussion motive alone would not be sufficient to convict the appellant u/ss 302 & 201 IPC.

For the foregoing reasons, we are unable to sustain the conviction of the appellant on the above set of circumstantial evidence. The circumstances were not fully established against the appellant. The circumstances were not of conclusive nature and tendency, and were capable of being explained and the chain of circumstantial evidence was also not complete. In the result, the appeal is allowed. The conviction and sentences awarded to the appellant u/ss 302 & 201 IPC are set-aside. The appellant is acquitted of the charges framed against him.