State of M. P. & Anr. vs Hirubai & Anr.

The appellant has filed this appeal against the judgment dated 16.07.2009 passed in Sessions Trial No. 12 of 2006 by IIIrd Upper Sessions Judge, Satna.

The father of the deceased lodged a report on 04.10.2005 at 9.50 PM that Mr. Pankaj Singh told him that when he had unlocked the door of the house of his daughter, there was nobody in the house. Then, he had entered into the house of her daughter alongwith his sons, Ravendra and Ramsharan Saket, the door of the house was closed. He pushed the door and entered in the house nobody responded. Then he had searched the rooms and found that grand son of her daughter, Chhatrasal Singh (Nati) was lying dead and his face was on a heater. The heater was on and the daughter of his daughter (Natin) was also lying dead in the kitchen. Blood was spread on the floor. When the complainant searched his daughter, he found that she was lying on the roof in half naked condition. She was dead. There were signs of injuries on her face. Thereafter, he reported the matter to the Police and the report was lodged. On the basis of report,

the Police conducted investigation and arrested the accused - appellant on 9.10.2005. All the three murders are said to have been committed by the appellant on the basis of suspicions about character of Sunita.

After investigation the Police filed charge sheet before the trial court. The appellant abjured his guilt. The prosecution examined 23 witnesses. The accused appellant examined in his support Rakiya Begum, (DW-1). The trial court after trial held the appellant guilty for commission of offence and awarded jail sentence for life on three counts under Section 302 of IPC with fine of Rs.100 and RI for seven years with fine of Rs.100 under Section 449 of IPC.

Learned counsel appearing on behalf of the appellant has submitted that there is no direct evidence against the appellant. The trial court placed reliance on circumstantial evidence. The trial court has committed error of law in holding the offence proved against the appellant beyond reasonable doubt. Learned counsel for the appellant has relied on the judgment of the Apex Court in Sk. Yusuf Vs. State of West Bengal reported in AIR 2011 SC 2283.

Contrary to this, learned counsel for the State has submitted that there is sufficient evidence to hold the appellant guilty for commission of offences.

PW-1, Shyam Sunder Singh, who is father of the deceased deposed that the deceased was married to one Bhola Singh. He was in the service of Army. He was killed eight to ten years before in a terrorist attack at Nagaland. The deceased had constructed a house at Satna where his daughter, Sunita was living in the house. The appellant used to visit the house of the deceased. One year before the incident then appellant had

come to my residence of the village. Alongwith the appellant, they returned back on the same day. On 4.10.2005 at 6- 7 o''clock, I received an information from Pankaj Singh that the door of the house of Sunita were open and nobody was replying, hence, I went to the house of the deceased and opened the door. Then, I noticed that her grand son and daughter both were lying dead. Sunita was also lying dead at the roof of the house. There were some pieces of bricks lying on the place of the incident. On the basis of suspicion, the appellant had committed murder of the all the three persons. I intimated the Police about the incident.

PW-2, who is the neighbourer of the decreased deposed that on 4.10.2005 the milkman had delivered the milk to him and when he had gone to the house of the deceased Sunita, he found that nobody was there and he received milk of Sunita. Then at around 10-11 o''clock 10-15 persons came to collect donation (Chanda) of Durgaji, they had found that doors of Sunita''s house were open and nobody was there. Thereafter, we informed the family members of the deceased, Sunita and her father came there. Then we and her father entered the house of Sunita and we came to know that Sunita, daughter, Priyanka (natin) and Chhatrasal (nati) were murdered by someone.

PW-3, Ravendra Singh deposed that Sunita was his sister. He had gone to the house of Sunita alongwith his father. The Police prepared a map of the site of incident, which is Ex. P-5. I signed the same. On seizurer, one scissors, pieces of breaks, heater and press were seized. I had signed the seizure memo, Ex. P-6. Red earth was also seized, vide Ex. P- 7. I had singed the same.

PW-4, Manoj Gupta deposed that the deceased Sunita was living at Satna. She had constructed the house one year before under the supervision of my father. My house is at some distance of the house of Sunita. She used to come at my house. On 4.10.2005 at around 8 o''clock, I had come to know that Sunita and her two children were killed. Adjacent to my house, there is a shop of Munna Battery. In that shop Irshad @ Pandit was working. He used to visit the house of Sunita. On the date of incident, at around 6 to 7 o''clock, the appellant had met me near the over bridge and he had told me that he had committed a mistake and he had killed Sunita, Chhatrapal and Sunita. I told him to go the Police Station and inform the Police. In his cross examination, he had admitted the fact that Police had called him at the Police Station on 4.10.2005. He was kept in the Police Station for six days. Apart from this, the Jeth of the deceased, Nandoi of Sunita and Vijay Singh were also detained. He further deposed that the appellant had told him that he had killed the deceased, Sunita and two children and same facts were told by me to the Police.

PW-6, Sanjay Sharma deposed that on 10.10.2005 the appellant was brought to the house of Sunita alongwith Police and the appellant had told that he had killed Sunita by bricks and scissors. He further told that at kitchen he had killed the daughter of Sunita by Tawa, (iron plate to make chapati) and near the gate he had killed the son of Sunita.

PW-7 is the Patwari, who deposed that he had prepared the map of the spot, which is Ex. P-4.

PW-11, the Constable deposed that he had recorded the FIR, Ex. P-18 and signed the same and also prepared the merg intimation, Ex. P- 19.

PW-12, is the Scientific Officer, who deposed that he had inspected the spot on 4.10.2005 at 9 o''clock at night. The deceased Sunita was lying dead at the corner of the roof in half naked condition. Pieces of bangles were lying near her. A scissor was kept on a flower pot. Priyanka was lying dead on the floor of kitchen. An iron press was kept on her chest which was on. Chatrapal was lying dead in front of kitchen. An electric wire was encircled in his neck. There were many injuries on the face and neck of Sunita. It appears that Priyanka was killed by Tawa (iron plate to prepare chapati). On the basis of inspection of the spot, I gave my opinion that the deceased were killed by a person who used to visit their house. First Sunita was killed at the top of the home. Thereafter, Priyanka and Chhatrapal were killed so that the killer could not be identified.

PW-11, Vimal Singh deposed that on 4.10.2005, he was posted at City Kotwali, Satna and he had recorded the FIR which is Ex.P-18 and merge intimation, Ex. P-19.

PW-16, Dr. S.B. Singh, deposed that on 5.10.2005, he had conducted the postmortem of the deceased, Sunita and found the following injuries :- Injuries regarding Smt. Sunita Singh:-

"VERNACULAR MATTER OMITTED"

The deceased had died due to injuries received by them.

PW-20, Sonu @ Manish Jaiswal deposed that before him the accused- appellant had given a memorandum that he had killed three persons. He had gone on the bicycle at the residence of deceased, Sunita and the bicycle was seized from the house of the deceased. The clothes were seized from the house of the deceased which they were wearing at the time of murder. By seizure memo, Ex. P-46 and I signed the same.

PW-15, H.P. Mishra, the Investigation Officer deposed that on 4.10.2005, he was posted as Sub Inspector at City Kotwali, Satna. On the intimation of Shyam Sunder, the complainant, the Dehali Nalishi, Ex. P-1 was recorded by me. The Panchanama of the dead body was prepared, Ex.P-11. Similarly, the Panchanama of dead body of the deceased, Chhatrapal and Priyanka Ex. P-12 and P-13 were prepared. He further deposed that map of the incident was prepared, which is Ex. P-5. Two pieces of breaks and some bangles were seized, vide seizure memo, Ex. P-6. I signed the same. The electric press, purse and red earth were also seized, vide Ex. P-8 and Ex. P-9. On 4.10.2015, I recorded the statements of Praduna, Shyam Sunder, Krishna Bai, Ramcharan Saket and Ravendra Singh. The dead bodies were sent for postmortem on 5.10.2005. I also recorded statements of Ramnaresh Gupta, Nangnath Prasad. On 6.10.2005, statements of Manoj Kumar, Kamlendra Singh Lallan Prasad Kushwaha, Raj Kumar Gupta were recorded. The appellant was arrested on 9.10.2005, vide arrest memo, Ex. P-41. On his memorandum, Ex. P- 43, a lady bicycle was seized, vide. Ex. P-44, a telephone diary was also seized, vide Ex. P-45 and full paint on which spot of blood stains were found, was also seized, vide. Ex.P-46 and I signed the same. The statements of Kamlesh Sen was recorded on 14.10.2005. Some other seizure memos

were also prepared. The report of Scientific Officer is Ex. P-54. I singed the same.

The trial court convicted the appellant on the basis of circumstantial evidence and the trial court placed reliance on the evidence of PW-4, whom the appellant had made confession that he had murdered the three persons. The trial court further held that there is evidence that the appellant had gone to the house of the deceased in the night and on memorandum of the appellant articles were seized, i.e button of the shirt of appellant and clothes of the appellant on which blood stains were found.

PW-4, Manoj Gupta in his evidence deposed that on 4.10.2005 in the night he came to know that Sunita her daughter and her son were killed. The appellant used to visit the house of Sunita. He had met with him at 6-7 o''clock in near the bridge and he had told that he has committed a mistake by killing Sunita, Chhatrapal and Priyanka. Thereafter, I received a telephone call and Police called me for interrogation. In his cross examination, he deposed that he had told the Police about the confession of appellant. the statements of this witness was recorded by the Police, Ex. D-2 on 6.10.2005. In his statement he stated that at around 10 o''clock in the night on 4.10.2005, he came to know that Sunita, her daughter and her son were killed. In the morning on 6.10.2005, the appellant had told me that he had killed the deceased, Sunita, her son and daughter and committed a mistake. Statement of Manoj Kumar was recorded by the Police on 6.10.2005. There is discrepancy in regard to confession made by the accused to this witness. However, the fact remains that the aforesaid witness was called

by the Police for interrogation and thereafter his statement was recorded within two days from the date of the incident.

It is well settled principle of law that a conviction can be based on extra judicial confession, if it inspires confidence. The Apex Court in State of Andhra Pradesh Vs. E. Satyanarayana reported in (2009) 14 SCC 400 has considered a number of judgments on this point and held as under :-

In appeal, the primary stand taken by the accused respondent was that the evidence of PW.1 is not believable. It contradicts the evidence of PW.2, and the Investigating Officer. The High Court analaysed the evidence and came to the conclusion that the so-called extra judicial confession has not been established. The High Court analysed the position in law relating to extra judicial confession, namely, that the Court has to be satisfied that the socalled extra- judicial confession is voluntary and not as a result of any inducement, threat or promise as envisaged in Section 24 of the Indian Evidence Act, 1872 (in short ''Evidence Act'') or was brought about in suspicious circumstances to circumvent Sections 25 and 26 of the Evidence Act.

6......... in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh (AIR 1954 SC 322) , and Maghar Singh v. State of Punjab (AIR 1975 SC 1320), this Court 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 conviction can be founded on such evidence alone. In Narayan Singh v. State of M.P. (AIR 1985 SC 1678) 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 v. State of H.P. (AIR 1990 SC 2140) 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 under Section 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 scrutinized. To the same effect is the judgment in Baldev Raj v. State of Haryana (AIR 1991 SC 37) . After referring to the judgment in Piara Singh

v. State of Punjab (AIR 1977 SC 2274) , this Court in Madan Gopal Kakkad v. Naval Dubey (1992 (3) SCC 204) 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.

The principle of law is that if the confession is voluntary and it is not the result of inducement, threat or promise or was brought about in suspicious circumstances the court can rely on the confession. By way of abundant caution corroboration of such evidence is required. In the present case the PW-4 was residing near the house of the deceased. The appellant was working in the shop of battery near the house of PW-4. It has been established from evidence that the appellant was having intimacy with him. Hence, the evidence of PW-4 that he had met with him near the over bridge and confessed about his act which could not be said to be suspicious or unreliable. Although, there is some discrepancy about the date of confession in the statement of PW-4 recorded before the trial court.

The arguments advanced by learned counsel for the appellant that extra judicial confession is unreliable is hereby rejected. The facts of the case of Sk. Yusuf (supra) on which the appellant''s counsel has placed reliance are quite different.

There is other evidence against the appellant of seizure of clothes and button of shirt which was found at the place of incident. The seizures were made on the memo of the appellant and witness of seizure has confirmed the fact that before him the seizure was made of the clothes of the appellant which he was wearing at the time of incident and clothes of deceased, Sunita blood group "O" was found. In this view of the matter, in

our opinion, there is sufficient evidence to convict the appellant for commission of murder of three persons. The trial court has appreciated evidence properly and rightly convicted the appellant. The trial court has awarded proper jail sentence. In our opinion, there is no merit in his appeal. It is hereby dismissed.