Tula Ram vs State of Chhattisgarh

Sunil Kumar Sinha, J.—This appeal is directed against the judgment dated 22nd of August, 2009 passed in Session Trial No. 106/2008 by the Session Judge, Raigarh (CG). By the impugned judgment, the appellant has been convicted u/s 302, IPC and sentenced to undergo imprisonment for life. The facts, briefly stated, are as under:-

On 1-6-2008, dead body of an unknown person (male) was found in a tank in Village Vijaypur. Merge intimation (Exh. P-1) was lodged by Manish Sharma (P.W. 1). Investigation Officer reached to the place of occurrence. The dead body was taken out from the tank and it was identified to be the dead body of one Suresh Kumar Nayak of Village. Bhikharimal. The Investigation Officer gave notice (Exh. P-2) to the Panchas and prepared inquest (Exh. P-3) on the dead body of the deceased. The dead body of the deceased was sent for post-mortem to Government Hospital, Raigarh. The post-mortem examination was conducted by Dr. Anil Kumar Kushwaha (P.W. 10) who found that the deceased died due to asphyxia as a result of throttling and death was homicidal in nature. The post-mortem report is Exh. P-12-A. On 20-6-2008, 161 Cr.P.C. statements of Parmanand (P.W. 2), Ramesh Pradhan (P.W. 3), Murli Patel (P.W. 4) and Mahesh Pradhan (P.W. 5) were recorded who stated that the appellant had made extra-judicial confession before them that he along with Leeladhar Thakur (accused No. 2) had committed murder of the deceased. Thereafter accused persons were taken into custody and their memorandum statements u/s 27 of the Evidence Act were recorded and various articles were seized at their instances. Admittedly there was no direct evidence in this case and the prosecution came with two circumstantial evidence: first- memorandum and seizure at the instances of the accused persons; and second-- extra-judicial confession made by the appellant before the above 4 witnesses. The learned Session Judge did not rely on the evidence of memorandum and seizure. However, relying on the evidence of extra-judicial confession made by the appellant he was convicted and sentenced as aforementioned. Co-accused Leeladhar Thakur (A-2) was acquitted because the inculpatory extra-judicial confession made by the appellant (A-1) was not held to be proved against the co-accused (A-2) disbelieving the testimony of Mahesh Pradhan (P.W. 5) to that extent.

Mr. Awadh Tripathi, learned Counsel appearing on behalf of the appellant, argued that the solitary circumstances of extra-judicial confession was not proved. The learned Session Judge erred in relying on-the testimonies of Parmanand (P.W. 2), Ramesh Pradhan (P.W. 3), Murli Patel (P.W. 4) and Mahesh Pradhan (P.W. 5) and holding that the circumstance of extra-judicial confession was proved.

On the other hand, Mrs. Madhu Nisha Singh, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Session Court.

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

Admittedly, there is no direct evidence in this case and the case of the prosecution is based on circumstantial evidence. In a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have to be fully established and all the circumstances so established should be of conclusive nature and tendency. They must point only towards the guilt of the accused. The circumstances should not be capable of being explained and the chain of the circumstantial evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. This is what the Supreme Court said in many cases. Therefore, we ought to be satisfied that the circumstances on which the prosecution relies leave no option but to hold that the crime imputed to the appellant has been established beyond a reasonable doubt.

It has been laid down in many cases that if the evidence about extrajudicial 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 Sk. Yusuf Vs. State of West Bengal, , the Supreme Court held that the extra judicial confession is weak type of evidence. It must be established to be true and made voluntarily in a fit state of mind. The words of witness must be clear, unambiguous and clearly convey that accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility. Reference has been made to State of Rajasthan Vs. Raja Ram, and Kulvinder Singh and Another Vs. State of Haryana,

It is on these principles now we shall scrutinize the evidence of extrajudicial confession.

Parmanand (P.W. 2) deposed that after 15-20 days of incident, at about 7.00 p.m., the appellant met him near his house and said that he has committed mistake. When Parmanand (P.W. 2) asked as to what mistake was committed, the appellant made extra-judicial confession that he has committed murder of the deceased. When it was asked by Parmanand (P.W. 2) as to why he did so, the appellant replied that the deceased had illicit relation with his wife. Parmanand (P.W. 2) deposed that thereafter he went to Mahesh Pradhan (P.W. 5 - Village Sarpanch), but he had gone to Raipur and when Mahesh Pradhan (P.W. 5) returned from Raipur, he told him about the extra-judicial confession made by the appellant. In cross-examination, he admitted that after the death of the deceased, police had called his brother (brother of Parmanand) in the police station and he was detained there. He had denied the suggestion that his brother Nandkumar was also one of the suspects.

Ramesh Pradhan (P.W. 3) deposed that Mahesh Pradhan (P.W. 5) had called the appellant. The appellant made extra-judicial confession before Mahesh Pradhan (P.W. 5) that he had committed murder of the deceased.

Murli Patel (P.W. 4) also deposed that the appellant, made extra-judicial confession before Mahesh Pradhan (P.W. 5) in his presence.

Mahesh Pradhan (P.W. 5) was Village Sarpanch. He deposed that when he returned from Raipur, Parmanand (P.W. 2) told him that the appellant had confessed before him that he had committed murder of the deceased. Thereafter, on the next day, in the evening, he called the appellant and asked him about the incident. The appellant started weeping and confessed that he has committed murder of the deceased. When Mahesh Pradhan (P.W. 5) asked him as to why he did so, the appellant told that the deceased had illicit relation with his wife. Thereafter, on the next day, when he was sitting along with Ramesh Pradhan (P.W. 3) and Murli Patel (P.W. 4), he asked from the appellant as to how it was possible by one man, then, the appellant told him that Leeladhar Thakur (A-2) was also a party in committing murder of the deceased. Thereafter the appellant gave details as to how they committed murder of the deceased.

In cross-examination, Mahesh Pradhan (P.W. 5) admitted that Murii Patel (P.W. 4) had told him about the extra-judicial confession made before them on 19th (on 19-6-2008). Then after 2-3 days he had gone to Raipur. He admitted that during that period he did not talk to the appellant. He returned from Raipur on 24th-25th June, 2008. It is true that after the said date, he had talked with the appellant. This goes to show that he met with the appellant after 24th-25th June, 2008 and then the alleged extra-judicial confession was made by the appellant before him. On the first occasion the appellant made confession about himself alone, however, on the second occasion the appellant made inculpatory confession and he took the name of Leeladhar Thakur (A-2) also. The above witnesses were cross-examined by referring to their case diary statements recorded u/s 161, Cr.P.C. The diary statement of Parmanand (P.W. 2) is Exh. D-1. The diary statement of Ramesh Pradhan (P.W. 3) is Exh. D-2 and the diary statement of Mahesh Pradhan (P.W. 5) is Exh. D-3. We find from the records that all above statements were recorded by the Investigation Officer on 20-6-2008 and there is no dispute about it. In the case diary statements of all these witnesses there is mention about the extra-judicial confession made by the appellant and also about the fact that they met Mahesh Pradhan (P.W. 5) where the appellant also made confession before him. This shows that the case diary statements of above witnesses were recorded after meeting of the appellant with Mahesh Pradhan (P.W. 5). When Mahesh Pradhan (P.W. 5) admitted in clear words that confession was made before him after 24th-25th June, 2008, how the statements regarding extra-judicial confession were recorded on 20-6-2008. The above discrepancy has not been explained by the prosecution. That a part, evidence of inculpatory extra-judicial confession was not held reliable for co-accused Leeladhar Thakur (A-2) and to that extent the evidence of above witnesses were found to be unacceptable. These discrepancies make their evidence shaky. We are of the view that in the above facts and circumstances of the case, the learned Session Judge erred in relying on the testimonies of these witnesses, and the conviction on the solitary circumstance of extra-judicial confession, based on the testimonies of the above witnesses, cannot be sustained. For the foregoing reasons, the appeal is allowed. The conviction and sentence awarded to the appellant u/s 302, IPC are set-aside. The appellant is acquitted of the charges framed against him. It is stated that the appellant is in jail since 20-6-2008. He be released forthwith, if not required in any other case.