Sunil Yadav vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of the CrPC preferred by the appellant-accused herein is directed against the impugned judgment of conviction and order of sentence dated 24.12.2014 passed by the Additional Sessions Judge, Kabirdham (Kawardha), Chhattisgarh in Sessions Trial No. 57/2014 by which appellant herein has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life and to pay fine of  Rs.  500/-; in default of payment of fine amount additional rigorous imprisonment for one month and for offence under Section 201 of the IPC and sentenced to undergo rigorous imprisonment for 5 years and to pay fine of  Rs.  200/-; in default of payment of fine amount additional rigorous imprisonment for one month.

Case of the prosecution in, nutshell, is that on 12.07.2014 at 10:00 pm at village Village Bhalpahari, Police Station Pandatarai, District Kabirdham, Chhattisgarh, appellant caused cut injury to the neck of Mankunwar @ Buti by which she suffered grievous injuries and died and to screen himself from the offence in question, buried the dead body the Mankunwar @ Buti (deceased) with the help of Sunil (PW-2) near the Tamboli damar plot and thereby committed the aforesaid offence. It is further case of the prosecution that on the date of offence, appellant came to truck cabin of Sunil (PW-2) and gave him extra-judicial confession that he caused the murder of Mankunwar @ Buti. Thereafter, appellant along with Sunil (PW-2) buried the dead body of Mankunwar @ Buti and appellant had also given  Rs. 200/- to him saying him not to disclose about the fact of offence to anyone and also threatened him. On the next day, i.e. 13.07.2014, Sunil (PW-2), lodged Merg intimation (information of sudden and unnatural death) and FIR vide Exs.P/2 & P/3, respectively, disclosing the fact that appellant had given extra-judicial confession to him that he (appellant herein) caused the death of Mankunwar @ Buti and thereafter, he (PW-2) along with appellant buried the dead body of Mankunwar @ Buti and also informed the place where the dead body of Mankunwar @ Buti was buried. Inquest proceedings (Ex.P/10) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/17) proved by Dr. Rajesh Beldar (PW-8) & Dr. P.L. Kurre (PW-9), cause of death was due to combined effect of asphyxia (due to injury to trachea) and hemorrhage (due to injury to vessels at level of thyroid) and nature of death was homicidal. Pursuant to memorandum statement of the appellant (Ex.P/11) weapon of offence i.e. axe was seized vide Ex.P/13. Seized articles were sent for chemical analysis to FSL, but FSL report has not been brought on record for reasons best known to the prosecution.

After due investigation, appellant herein was charge-sheeted for the aforesaid offences and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence.

In order to bring home the offences, prosecution has examined as many as 10 witnesses and exhibited 21 documents and defence in support of its case has neither examined any witness nor exhibited any document.

The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant / accused for the offences as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant questioning the impugned judgment of conviction and order of sentence.

Mr. Shailendra Sharma, learned counsel for the appellant, submits that appellant has falsely been implicated in crime in question and he has been convicted by recording a finding which is perverse to the record. He also submits that appellant has been convicted solely on the basis of so called extra-judicial confession made before Sunil (PW-2) but, the said extra-judicial confession was not made voluntarily and, therefore, the same cannot be used against the appellant. Thus, the present appeal deserves to be allowed and the appellant deserves to be acquitted.

On the other hand, Mr. Sameer Oraon, learned State counsel, supports the impugned judgment and submits that prosecution has been able to prove the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence. He further submits that apart from the extra-judicial confession made by the appellant before Sunil (PW-2), on his disclosure statement (Ex.P/11), dead body (Ex.P/5) and weapon used in offence (Ex.P/13) have been seized and, therefore, the instant appeal deserves to be dismissed.

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

Now, the first question is, whether the death of the deceased was homicidal in nature?

In this regard, the learned trial Court has recorded the finding in affirmative that death of the deceased was homicidal in nature on the basis postmortem report (Ex.P/17) proved by Dr. Rajesh Beldar (PW-8) & Dr. P.L. Kurre (PW-9), which is the 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 has assaulted the deceased?

It is the case of the prosecution that pursuant to memorandum statement of the appellant (Ex.P/11) dead body of Mankunwar @ Buti (deceased) was recovered (Ex.P/5) as well as weapon of offence i.e. axe was seized vide Ex.P/13. However, memorandum statement of the appellant (Ex.P/11) was recorded on 13.07.2014 at 11:30 and thereafter, dead body of Mankunwar @ Buti (deceased) was recovered on 13.07.2014 at 12:30 vide Ex.P/5 and at this stage, it would be appropriate to mention here that while lodging the Merg intimation [information of sudden and unnatural death (Ex.P/2)] & FIR (Ex.P/3), Sunil (PW-2) had disclosed the fact that on 12.07.2014 at 10:00 pm, he assisted the appellant herein in burying the dead body of Mankunwar @ Buti (deceased) and also disclosed the place, where the dead body of Mankunwar @ Buti (deceased) was buried by them, which has duly been recorded in FIR (Ex.P/3) and Merg intimation [information of sudden and unnatural death (Ex.P/2)]. As such, where the dead body of Mankunwar @ Buti (deceased) was buried already in the knowledge of the police and, therefore, it cannot be said that on 13.07.2014 at 12:30 dead body of Mankunwar @ Buti was recovered on the basis of memorandum statement of appellant (Ex.P/11) as the said fact has already disclosed by Sunil (PW-2) and it is in the knowledge of the police. Further pursuant to memorandum statement of the appellant (Ex.P/11) weapon of offence i.e. axe has been recovered vide Ex.P/13 which was sent for chemical analysis to FSL, but FSL report has not been brought on record to hold that the weapon of offenc was stained with human blood, therefore, in view of the decision of the Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh and another (2019) 7 SCC 781 recovery of the weapon is of no use to the prosecution.

Furthermore, the appellant is said to have given the extra-judicial confession to Sunil (PW-2). Now, question for consideration is whether the extra-judicial confession given by the appellant to Sunil (PW-2) is true and voluntarily?

Extra Judicial Confession

It is the 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 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 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 above referred 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. ”

In the matter of Nikhil Chandra Mondal v. State of West Bengal 2023 LiveLaw (SC) 171, principles of law have been laid down by their Lordships qua evidentiary value of extra judicial confession in paragraphs 13 & 15 as under:-

“13.The trial Court observed that where the prosecution case is entirely based on extra-judicial confession and the prosecution seeks conviction of the accused on that extrajudicial confession, the evidence of the witnesses before whom the alleged confessional statement was made, requires a greater scrutiny to pass the test of credibility.

It is a settled principle of law that extra-judicial confession is a weak piece of evidence. It has been held that where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. It has further been held that it is well-settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra- judicial confession. It has been held that there is no doubt that conviction can be based on extra-judicial confession, but in the very nature of things, it is a weak piece of evidence. Reliance in this respect could be placed on the judgment of this Court in the case of Sahadevan and Another v. State of Tamil Nadu (2012) 6 SCC 403. This Court, in the said case, after referring to various earlier judgments on the point, observed thus:

“16. 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 precepts 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.”

Returning to the facts of the present case in the light of the principles of law laid down by their Lordships of the Supreme Court in the afore-stated judgments, it is quite vivid that the Sunil (PW-2) is stranger to the appellant herein and he (appellant) is said to have given extra-judicial confession to Sunil (PW-2) on the date of offence at 10:00 pm in the late night, and they were not known to each other prior to the date and time of making extra-judicial confession. 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 about his guilt to someone who is totally a stranger to him. In that view of the matter, extra-judicial confession given by the appellant to Sunil (PW-2) is not established beyond reasonable doubt and it cannot be true and voluntary and is a weak piece of evidence.

Surprisingly, according to Sunil (PW-2), he himself had assisted the appellant herein in burying the dead body of Mankunwar @ Buti (deceased), but he has not been made co-accused for the offence in question and he appears to be stock witness of the police, in that view of the matter, it would be unsafe to rely upon his testimony to convict the appellant herein who appears to be co-accused and he has been cited as eye witness. He has clearly admitted in his statement before the Court that he and appellant herein buried the dead body of Mankunwar @ Buti (deceased) and even otherwise, it is the settled principle of criminal jurisprudence that extra judicial confession is a weak piece of evidence unless it corroborated by other prosecution evidences and in the instant case, there is no corroborative piece of evidence brought by the prosecution, as such, the trial Court has wrongly held that it is the appellant who is the author of crime in question.

In view of the aforesaid discussion, it is quite vivid that the extra-judicial confession made by the appellant to Sunil (PW-2) is not true and voluntary. Further, pursuant to the memorandum statement of the appellant (Ex.P/11), blood stained axe has been seized vide Ex.P/13, which was sent for chemical analysis to FSL, but FSL report has not been brought on record, as such, it could not be proved that weapon of offence was stained with human blood. In view of the decision rendered by the Supreme Court in the matter of Balwan Singh (supra) recovery is no use to the prosecution. Consequently, we are unable to uphold the conviction of the appellant for offences under Sections 302 & 201 of the IPC and he is entitled for benefit of doubt, as such, his conviction for offences under Sections 302 & 201 of the IPC is set aside. The appellant is reported to be in jail since 14.07.2014, we direct that he be released from the jail forthwith, if not required in any other matter.

This criminal appeal is allowed.

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