Ramnandan vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 15.02.2016, passed by the Additional Sessions Judge, Ramanujganj, in Sessions Trial No.436/2011, by which, the appellant herein has been convicted for the offence under Section 302 of Indian Penal Code and sentenced to undergo life imprisonment with fine of Rs.500/-, in default of payment of fine, additional 50 days rigorous imprisonment.

Case of the prosecution, in brief, is that in the intervening night of 29.06.2011 and 30.06.2011, the appellant herein strangulated his wife Smt. Rajmani Bai to death and thereafter, he hanged the dead body to the tree with the help of saree in order to screen himself from the legal punishment; thereby, offence has been committed. It is further case of the prosecution that the appellant has given Rs.500/- to his wife Rajmani (now deceased) and on 29.06.2011, at evening, he consumed liquor along-with his wife and demanded that money on which she replied that she had already spent the money, by which the appellant became angry and thereafter, the appellant noticed the dead body of his wife hanging in the palas tree. Thereafter, he informed his son Ashok and Subhash (PW-6) and thereafter, merg intimation was registered vide Ex.P-10, panchnama was prepared vide Ex.P-3, inquest was conducted vide Ex.P-2 and dead body of deceased Rajmani was subjected to post-mortem, which was conducted by Dr. Snehlata Tirkey (PW-8), who proved the post-mortem report Ex.P-9, in which cause of death was stated to be due to asphyxia as a result of strangulation and death was homicidal in nature. After the merg inquiry, FIR was registered vide Ex.P-11 on 26.09.2011 and statements of prosecution witnesses including son of appellant Subhash (PW-6) and daughter-in-law of appellant Lalita (PW-5) were recorded on 30.09.2011, in which, they have stated that the appellant has given extra judicial confession to them that he has killed Rajmani and he will also kill them. After due investigation, appellant was charge-sheeted for the offences under Sections 302 & 201 of I.P.C. before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated.

In order to bring home the offence, prosecution examined as many as 11 witnesses and exhibited 14 documents and the appellant-accused in support of his defence has neither examined any witness nor has exhibited any document.

The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the aforesaid offence and sentenced him as mentioned in the opening paragraph of the judgment against which the present appeal has been preferred.

Mr. B.P.Rao, learned counsel for the appellant, would submit that the trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of I.P.C. He further submits that the extra judicial confession is a weak piece of evidence and is recorded on 30.09.2011, whereas the date of offence was 29.06.2011 and no date and time has been mentioned in the alleged extra judicial confession given by the appellant to Lalita (PW-5) and Subhash (PW-6), which cannot be accepted without corroboration and panchnama Ex.P-3 is inadmissible in evidence in view of Section 26 of the Indian Evidence Act and, as such, the appellant is entitled for acquittal and the appeal deserves to be allowed.

Mr. Ashish Tiwari, learned State counsel, would support the impugned judgment and submit that the trial Court is absolutely justified in convicting the appellant for the offence under Section 302 of I.P.C., as the prosecution has been able to bring home the offence beyond reasonable doubt and, as such, the appeal deserves to be dismissed.

We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

The first question for consideration as to whether the death of deceased Rajmani was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report Ex.P-9 proved by Dr. Snehlata Tirkey (PW-8), which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding.

Now, the next question is whether the appellant is the author of the crime, for which the trial Court has relied upon the circumstantial evidence, as the case of prosecution is based on circumstantial evidence.

The five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence have been laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 which must be fulfilled for convicting an accused on the basis of circumstantial evidence, in paragraph 153 as under: -

“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 where the following observations were made:

Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.

(2) 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,(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) 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.”

Now, the trial Court has culled out the following three incriminating circumstances while convicting the appellant in its judgment at paragraph 12, which read as under :

We will take up the second incriminating circumstance first i.e. extra judicial confession.

It is a settled principle of criminal jurisprudence that extra judicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the Court to base a conviction on such a confession. In such circumstances, the Court would be fully justified in ruling such evidence out of consideration. [See : Sahadevan v. State of Tamil Nadu (2012) 6 SCC 403]

In the matter of Sahadevan (supra), their Lordships of the Supreme Court further considered the earlier decisions including Balwinder Singh v. State of Punjab 1995 Supp (4) SCC 259 and pertinently laid down the principle in paragraphs 15.1, 15.8 and 16 as under :-

“15.1. In Balwinder Singh (supra) this Court stated the principle that: (SCC p. 265, para 10)

“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.”

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, unambigous 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. (2011) 11 SCC 754 and Pancho v. State of Haryana (2011) 10 SCC 165.)

The principles

Upon a proper analysis of the abovereferred 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 percepts 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 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.”

The principle of law laid down in Sahadevan (supra) has further been followed with approval in the matter of Pradeep Kumar v. State of Chhattisgarh Criminal Appeal No. 1304 of 2018, judgment dated 16/03/2023 and very recently in the matter of Pawan Kumar Chourasia v. State of Bihar 2023 LiveLaw (SC) 197, the following principle of law has been laid down by their Lordships in paragraph 5 of the report :-

“EVIDENTIARY VALUE OF EXTRA-JUDICIAL CONFESSION

As far as extra-judicial confession is concerned, the law is well settled. Generally, it is a weak piece of evidence. However, a conviction can be sustained on the basis of extra-judicial confession provided that the confession is proved to be voluntary and truthful. It should be free of any inducement. The evidentiary value of such confession also depends on the person to whom it is made. Going by the natural course of human conduct, normally, a person would confide about a crime committed by him only with such a person in whom he has implicit faith. Normally, a person would not make a confession to someone who is totally a stranger to him. Moreover, the Court has to be satisfied with the reliability of the confession keeping in view the circumstances in which it is made. As a matter of rule, corroboration is not required. However, if an extra-judicial confession is corroborated by other evidence on record, it acquires more credibility. ”

Reverting to the facts of the present case in light of the aforesaid principles of law laid down by the Supreme Court, it is quite vivid that the appellant is said to have given extra judicial confession to his daughter-in-law Lalita (PW-5) and son Subhash (PW-6), but surprisingly the date of incident is 29.06.2011 and the extra-judicial confession in shape of statement under Section 161 Cr.P.C. has been disclosed first time by Subhash on 30.9.2011 in his statement under Section 161 Cr.P.C. vide Ex.P-7 and no date and time has been mentioned in the statement under Section 161 Cr.P.C., but the fact remains that Subhash (PW-6) did not report the matter to the police for three months and only for the first time, he disclosed the fact of extra-judicial confession to the police when the statement under Section 161 of Cr.P.C. was recorded, therefore, it cannot be accepted as true and voluntary to base the conviction. Similarly, Lalita (PW-5) also stands on the same footing, as she did not state the date and time of making extra-judicial confession by the appellant herein and did not report the matter to the police and for the first time, she disclosed to the police when the statement under Section 161 of Cr.P.C. was recorded. As such, the statement in shape of extra-judicial confession cannot be relied upon to base the conviction and we hereby reject the testimony of Lalita (PW-5) and Subhash (PW-6) as extra-judicial confession.

Now the next circumstance is that the trial Court found established the panchnama statement (Ex.P-3) whereby the appellant has admitted his guilt of committing murder of his wife Rajmani.

A careful perusal of the panchnama (Ex.P-3) would show that on 01.10.2011, the panchnama statement was recorded and immediately thereafter vide Ex.P-13 at 11:13, the appellant has been arrested, as such, he was in custody while recording the panchnama statement Ex.P-3, which is inadmissible in evidence under Section 26 of the Evidence Act, which states that no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate shall be proved as against such person. As such, panchnama Ex.P-3 is inadmissible in evidence.

The other incriminating circumstance is, the appellant has strangulated his wife to death, but surprisingly except the medical evidence, there is no other legal evidence to hold that it is the appellant who has strangulated his wife, as he himself has reported the matter to the police in shape of merg intimation vide Ex.P-10 and FIR was registered vide Ex.P-11 and even otherwise, it is not the case of the prosecution that the appellant and deceased both were seen together lastly and immediately after some time, dead body of deceased Rajmani was noticed and he has not explained in his statement under Section 313 of CrPC. As such, the finding of trial Court that the appellant has strangulated his wife is based on assumption and presumption and there is no legal basis to hold so. In that view of the matter, the appellant is entitled for acquittal on the ground of benefit of doubt.

Accordingly, the impugned judgment of conviction and order of sentence dated 15.02.2016 is set aside. The appellant stands acquitted of the charge framed against him for the offence punishable under Section 302 of I.P.C. He shall be forthwith set at liberty, unless he is required in connection with any other offence.

In the result, the appeal is allowed.

Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence.