Shyam Bai vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal preferred by the appellant herein under Section 374(2) of the Cr.P.C is directed against the judgment of conviction and order of sentence dated 11.08.2015 passed in Sessions Trial No.126/2014 by the Sessions Judge, Surguja (Ambikapur) (C.G.), by which the appellant stands convicted & sentenced as under:-

Conviction

Sentence

Under Section 302 of Indian Penal Code

Imprisonment for life with fine of Rs.500/- and in default to pay fine amount, additional RI for six months.

Case of the prosecution, in brief, is that, on 02.07.2014 at 02.30 pm, at village Puta-Mudapara, appellant herein assaulted her husband Kaleshwar (hereinafter called as 'deceased') by sharp edged Basula (an adze) as a result of which, deceased suffered grievous injuries over his body and died and thereby committed the offence. Further case of the prosecution is that the appellant and deceased used to stay at village Puta Mudapara. On the date of incident, at about 11.00, daughter of the appellant and deceased, namely Kaushilya (P.W.4) returned to her house and saw that her father (deceased) was sleeping in the courtyard of the house. At about 2.30 pm, the appellant came back to the house under the influence of liquor and asked her daughter Kaushilya (P.W.4) to go out whereupon she was sitting under the jack-fruit tree. After sometime, the appellant called P.W.4 Kaushilya to see her father and when she (P.W.4) saw her father, he was found lying dead and near his dead body, Basula stained with blood was also lying. Immediately, the incident was informed by P.W.4 Kaushilya to P.W.6 Aalha, before whom the appellant made extra judicial confession. Thereafter, when P.W.4 Kaushilya accompanied by Anita (P.W.5), daughter of Aalha, returned to her house, then she saw the appellant running away. Matter was reported to Police Station, Udaypur, where F.I.R. was lodged vide Ex.P.5 by P.W.4 Kaushilya. Merg intimation was also recorded by her vide Ex.P.6. Inquest proceedings were initiated vide Ex.P.11 and dead body was sent for post-mortem examination to Community Health Center, Udaypur, where Dr. Umashankar Singh (P.W.2) conducted post-mortem upon the dead body vide Ex.P.2 and opined that cause of death was Hypovolemic shock due to rupture of major vessels in neck and death was homicidal in nature. Spot map was prepared vide Ex.P.4. During the course of investigation, memorandum statement of the appellant was recorded vide Ex.P.14 and at her behest, iron Basula was seized vide Ex.P.15. Clothes of the deceased were seized vide Ex.P.1. Plain soil and blood stained soils were seized from the spot vide Ex.P.13. Seized articles were sent for chemical examination to F.S.L. vide Ex.P.17 and vide Ex.P.19 F.S.L. report was brought on record, according to which, blood was found on the article Basula, but it could not be ascertained as to whether the blood was human blood or not. Query report was also obtained from Dr. Umashankar Singh (P.W.2), who opined that the injuries found on the dead body could have been caused by this weapon, i.e., Basula.

Statements of the witnesses were recorded under Section 161 of Cr.P.C. After completion of investigation, the appellant was charge-sheeted before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which appellant/accused abjured her guilt and entered into defence by stating that she has not committed the offence.

In order to bring home the offence, prosecution has examined as many as 08 witnesses and brought on record 19 documents whereas the appellant-accused person in support of her defence has not examined any witness and not exhibited any document.

The trial Court after appreciation of oral and documentary evidence on record, convicted the appellant for the offence under Section 302 of IPC and sentenced as above against which the present appeal has been preferred.

Learned counsel for the appellant would submit that the trial Court has committed grave legal error in convicting the appellant only on the basis of extra-judicial confession allegedly given by the appellant to P.W.6 Aalha, which is a weak piece of evidence and which has not been proved by the prosecution beyond reasonable doubt. As such, the conviction of the appellant is neither well-founded nor well-merited and accordingly, it is liable to be set aside.

Per contra, learned State counsel would support the impugned judgment of conviction and order of sentence and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the extra judicial confession made by the appellant to P.W.6 Aalha is true and voluntary, as such, the trial Court has rightly come to the conclusion that it was the appellant, who has committed the aforesaid offence and the instant appeal is liable 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 would be, whether the death of the deceased was homicidal in nature which has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P-2) proved by Dr. Umashankar Singh (PW-2), which is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

Now, the question for consideration would be, whether the appellant is the author of the crime in question and whether the trial Court is justified in convicting the appellant for offence punishable under Section 302 of IPC ?

In the instant case, there is no direct evidence available on record and the entire case is based on circumstantial evidence mainly on extra judicial confession allegedly made by the appellant to P.W.6 Aalha. The question that requires for our consideration is whether the trial Court is justified in convicting the appellant for offence punishable under Section 302 of IPC on the basis of circumstantial evidence which was actually proved by the prosecution in the light of five golden principles to constitute the 'panchsheel' of proof of a case based on circumstantial evidence, as laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116.

In order to record finding of conviction, the trial Court has found 7 incriminating circumstances to the effect that on the date and at the time of offence, the deceased was sleeping in the courtyard of his house when the appellant came to her house under the influence of liquor and asked her daughter Kaushilya to go outside her house and after sometime called her daughter P.W.4 Kaushilya and asked her to see her father, whereupon, she (Kaushilya) saw her father and found several injuries on the person of deceased, who had already died and that she also saw the blood splatters on the clothes and feet of the accused. The appellant/accused has given extra judicial confession to P.W.6 Aalha and on the memorandum statement of appellant, Basula has been seized.

We shall now examine the first five circumstances that have relied upon by the trial Court. It is not in dispute that the deceased was admittedly sleeping in the courtyard of his house and it is also not in dispute that the appellant came to the house in the late afternoon under the influence of liquor and saw her daughter (P.W.4 Kaushilya) sitting outside the house and after sometime called her daughter back to the house and when P.W.4 Kaushilya came inside the house she noticed the dead body of deceased, who has already died. However, a careful perusal of evidence of P.W.4 Kaushilya would show that when the appellant came to her house under the influence of liquor and noticed the dead body of the deceased, then she (P.W.4) was called by her mother (appellant) to see her father and when this witness went inside, she saw the dead body of her father lying on the floor and blood was oozing. It also appears from her evidence that she was unable to state as to whether she was inside or outside of the house when the incident took place. It has also come in her evidence that upon a call from her mother (appellant), she went inside and saw her father's dead body lying on the floor in a pool of blood, but, she did not witness the incident while the appellant was committing the offence. Therefore, from a bare perusal of her evidence, it can safely be inferred that as a matter of fact P.W.4 Kaushilya did not witness the incident while his father was being assaulted by her mother. Evidence of this witness does not inspire confidence and is not reliable, therefore, it would be unsafe to rely upon her evidence to base the conviction of the appellant.

The remaining circumstances that have been found proved by the trial Court are that the appellant allegedly made extra judicial confession before P.W.6 Aalha and that weapon of offence Basula has been seized at the behest of the appellant.

Extra Judicial Confession :-

It is 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 inspire 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 prosecution 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 and Another v. State of Tamil Nadu (2012) 6 SCC 403.

In the matter of Sahadevan (supra), their Lordships of the Supreme Court further considered their 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 extrajudicial 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) 11 SCC 754.)

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 wherein 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 the light of the aforesaid principles of law laid down by their Lordships of the Supreme Court in Pawan Kumar Chourasia (supra), it is quite vivid that extra judicial confession said to have been made by the appellant to P.W.6 Aalha, when considering the facts and circumstances of the case, is a weak piece of evidence as P.W.4 Aalha in his statement though has admitted in para 8 that appellant came to his house and made extra judicial confession with respect to commission of offence, at the time when she told about the incident, he, his wife Meena and daughter Anita (P.W.5) were present, but P.W.5 Anita has not corroborated the evidence of P.W.4 Aalha. Moreover, Meena, wife of P.W.6 Aalha has not been examined by the prosecution. On facts, when we consider the evidence of P.W.4 Aalha and P.W.5 Anita, then we find that there is no corroboration with respect to the evidence of extra judicial confession. As such, it would be unsafe to rely upon the evidence of extra judicial confession allegedly given by the appellant to P.W.4 Aalha in absence of corroboration.

The last circumstance that has been found proved by the trial Court is that pursuant to memorandum statement of appellant (Ex.P.14), blood stained Basula has been seized vide Ex.P.15.

The Supreme Court in the matter of Balwan Singh vs. State of Chhattisgarh and another (2019) 7 SCC 781 held that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood and held in Para-24 as under:-

“24. In the instant case, then, we could have placed some reliance on the recovery, had the prosecution at least proved that the blood was of human origin. As observed supra, while discussing the evidence of Pws 9 and 16, the prosecution has tried to concoct the case from stage to stage. Hence, in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery of the weapons and tabbal, and such recovery does not help the case of the prosecution.”

Further, the Supreme Court in the matter of Mani vs. State of Tamil Nadu (2009) 17 SCC 273, considering the nature, scope and applicability of Section 27 of the Indian Evidence Act, 1872, has held that discovery is a weak kind of evidence and cannot be wholly relied upon and has observed the following in paragraph 26 of the judgment :-

“26. 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. Once the discovery fails, there would be literally nothing which would support the prosecution case. We have already held that the prosecution has failed to prove that the house where alleged bloodstains were found belonged exclusively or was possessed exclusively by the appellant, we have further pointed out that the discovery was absolutely farcical. There is one other very relevant factor ignored by both the courts that the prosecution never made any attempts to prove that the clothes belonged to the appellants. There is literally no evidence to suggest anything to that effect. Therefore, even if we accept the discovery, it does not take us anywhere near the crime. Both the courts below have ignored this very important aspect. Once these two important circumstances are disbelieved, there is nothing which would remain to support the prosecution theory.”

Reverting finally to the facts of the present case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that though the weapon of offence, i.e., Basula has been seized vide Ex.P.15 at the behest of the appellant's memorandum statement (Ex.P.14) and the same has been sent to F.S.L. for examination, but a careful perusal of F.S.L. report (Ex.P.19) would show that blood was found on the Basula but it could not be ascertained as to whether or not the blood was human blood. Mere seizure of weapon of offence would be of no help to the prosecution, as it is a weak piece of evidence. As such, in absence of origin of blood suggesting that human blood was found on the weapon of offence, conviction of the appellant based on the recovery of weapon of offence on the disclosure statement of the appellant cannot be sustained and the appellant is entitled to be acquitted on the basis of benefit of doubt. Accordingly, the impugned judgment of conviction and order of sentence dated 11.08.2015 passed by the learned trial Court in convicting the appellant for offence under Section 302 IPC is not sustainable in law.

Consequently, the conviction of the appellant for offence punishable under Section 302 of IPC as well as the sentence imposed upon him by the learned trial Court is hereby set aside. She is acquitted of the said charge entitling her to be released on the basis of benefit of doubt. The appellant is reported to be in jail since 03.07.2014, we direct that she be released from jail forthwith, if not required in any other matter/case.

In the result, the criminal appeal is allowed.

Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and concerned Superintendent of Jail forthwith for necessary information and action, if any.