Akshay Bhagat vs State Of Jharkhand

Shree Chandrashekhar, J

The sole convict, namely, Akshay Bhagat has challenged the judgment of his conviction under section 302 of the Indian Penal Code and the order of sentence of R.I. for life inflicted upon him in S.T. Case No. 176 of 1998.

The appellant has faced the trial on the charge of committing murder of Bahadur Bhagat.

To prove the charge against the appellant, the prosecution has relied on the extra-judicial confession made by the appellant before Arjun Suwa who was posted as security guard at the main gate of UCIL colony, Jadugora and in the morning of 27.11.1997 a knife was recovered which according to the prosecution is the crime weapon recovered at the instance of the appellant.

During the trial, the prosecution has examined altogether eight witnesses; the informant, namely, Laxmi Kant Bhagat is PW-1 and the security guard, namely, Arjun Suwa is PW-3. The prosecution witnesses, namely, Manoj Kumar Kalindi-PW-4, Ashok Singh-PW-5 and Rakesh Sharma-PW-8 have turned hostile.

Dr. S.S.P. Singh-PW-6, who has conducted the post-mortem examination, has found the following injuries on Bahadur Bhagat:

"I. Incised wound on the front of neck size 3"x1 ½" x1". All vessels and important parts were cut and damaged.

II. Abrasion on the fore head above the right eye brow size 1"x1/2".

III. Incised wound on the middle portion of the left upper arm laterally of size 1"x1/2"x bone deep.

IV. Incised wound on the left side of the abdomen. Omentum was out from the mole size 1 ½"x1"x3".

V. Abrasion on the right knee joint size 1"x1/4".

According to the doctor, all the injuries except the abrasion were caused by a sharp cutting instrument and ante-mortem in nature. The doctor has opined that the death has occurred due to cardiac respiratory arrest on account of bleeding and shock due to the above injuries.

The informant of this case is a hearsay witness. On the basis of his statement recorded on 27th November, 1997 at 9.30 in the morning at the gate of UCIL Colony, Jadugora, Jadugora P.S. case no. 62 of 1997 was registered against the appellant under section 302 of the Indian Penal Code. In his fardbeyan, the informant has stated that when he received an information that a man has been killed at UCIL gate he went there and saw that Bahadur Bhagat who is a servant in C-Type Hostel was lying dead there. He has found several knife injuries on the body of Bahadur Bhagat and blood was spilled on the ground. In the meantime, the security guard, namely, Arjun Suwa called him and asked him to identify a person whom he had detained. The person detained by the security guard was Akshay Bhagat. The security guard informed him that Akshay Bhagat has come there and told him that he has killed Bahadur Bhagat and, therefore, he should arrest him. In his fardbayan, the informant says that at about 8.30 a.m. Akshay Bhagat, a relative of Bahadur Bhagat, had called him and gone away with him.

The informant is examined as P.W.-1 in the court. In his examination-in-chief, the informant has deposed about the news of a man killed at UCIL gate, the security guard asking him to identify the person detained by him and the security guard informing him about the appellant confessing that he has killed Bahadur Bhagat.

The security guard, namely, Arjun Suwa has been examined as P.W.3. In his examination-in-chief, he has deposed that at about 9.30 a.m. he was on duty at UCIL gate. At that time a mini bus came and stopped there and when it again moved he saw a man in injured condition lying there. In the meantime, a boy aged about 18-19 years came there and told him that he has killed that person whereupon he detained that boy and someone sent information to the police. On query, the boy detained by him disclosed his name as Akshay Bhagat and said that he has killed Bahadur Bhagat to take revenge for an incident which has happened about three years back.

The prosecution has set up a case that confessional statement of Akshay Bhagat was recorded at 10.15 a.m. on 27th November, 1997 and a blood-stained knife was recovered from the nearby bushes at the instance of the appellant.

The learned Sessions Judge has discarded the confessional statement of the appellant being not admissible in evidence. On recovery of a blood-stained knife from the nearby bushes on disclosure of the appellant, we find that the confessional statement of the appellant itself mentions recovery of the knife by the police. Therefore, in the first place it is not that pursuant to the confessional statement of the appellant the knife has been recovered. Secondly, Section 27 of the Evidence Act provides that only that part of the confession which leads to discovery of a fact is admissible in evidence and while so, disclosure of the appellant in his confessional statement that he has killed Bahadur Bhagat with a knife and threw the knife in the bushes near Officers' Hostel relate to a past event and it is hit by Section 25 and 26 of the Evidence Act. In "Pulukuri Kottaya V. Emperor" reported in AIR 1947 PC 67, the Privy Council has observed that section 27 of the Evidence Act incorporates an exception to the restrictions under section 25 and section 26 and enables certain statements made by an accused in police custody to be proved. It has been held that the condition necessary to bring section 27 of the Evidence Act into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to, and thereupon so much of the information as relates discovery to the fact thereby discovered may be proved.

Apparently, no part of the confessional statement of the appellant is admissible in evidence and, admittedly, the seizure witnesses have turned hostile.

It is also fairly settled by now that mere recovery of an incriminating article, may be the crime weapon, is not sufficient to record conviction of an accused on the charge of murder.

Another piece of evidence relied on by the prosecution against the appellant is the extra-judicial confession made by him to the security guard. In his fardbayan and also when he was examined in the court, the informant has said that the security guard-P.W.3 has informed him that the appellant has confessed that he has killed Bahadur Bhagat. P.W.-3 has also stated in his examination-in-chief that the appellant came to him and asked him to arrest him as he has killed Bahadur Bhagat. In his examination under section 313 Cr.P.C. when this circumstance was put to the appellant, he has denied the same.

It was early morning of late November in the year 1997. The dead body of Bahadur Bhagat was found near the main gate of UCIL colony. P.W.- 3 has first noticed the injured Bahadur Bhagat after the mini bus which had stopped there for a while had moved away. In his cross-examination, he admits that the dead body was lying on the thoroughfare. He also admits that from that road employees from the colony used to pass through and in his examination-in-chief he has stated that several persons had alighted from the mini bus. But, nobody has seen the appellant murdering Bahadur Bhagat. The prosecution has asserted that knife was sent for F.S.L. examination, but neither the crime weapon was produced in the court nor was the FSL report obtained by the Investigating Officer. The Investigating Officer has admitted that he did not make inquiries in the neighbourhood and he did not collect the blood-stained soil from the place where the dead body of Bahadur Bhagat was found lying. The prosecution witnesses have also deposed that the appellant did not hand over any weapon to the police. They have not spoken about the recovery of a knife by the police at the instance of the appellant.

There is no universal rule that conviction of an accused cannot be recorded on the basis of extra-judicial confession; confession of an accused is admissible in evidence. In "Pakkirisamy Vs.State of Tamil Nadu" reported in (1997) 8 SCC 158, the Supreme Court has held that it is a rule of caution that the courts would generally look for an independent reliable corroboration before placing any reliance upon extra-judicial confession. In "Aloke Nath Dutta & Ors. Vs. State of West Bengal" reported in (2007) 12 SCC 230, the Supreme Court has observed that before placing reliance on confession of an accused the court has to satisfy itself in regard to; (i) voluntariness of confession, (ii) truthfulness of confession and (iii) corroboration. In paragraph no. 89 of the reported judgment, the Supreme Court has observed that the main features of a confession are required to be verified and, if it is not done, no conviction can be passed only on the sole basis of confession of an accused. From the facts narrated hereinabove, it is quite clear that the Investigating Officer has not collected material informations about the crime. In fact, the extra-judicial confession of the appellant made to P.W.-3 as supported by the evidence of P.W.-1 is so cryptic and bereft of necessary details about the murder that no reliance can be placed upon such extra-judicial confession.

In the above facts, having examined the materials on record, we find that no legally admissible evidence has been brought on record by the prosecution to prove the charge under Section 302 of the Indian Penal Code against the appellant. The case set up by the prosecution against the appellant is based on circumstantial evidence, however, none of the circumstances relied upon by the prosecution against the appellant is found proved.

Accordingly, we hold that the prosecution has failed to prove the charge under Section 302 of the Indian Penal Code against the appellant and, therefore, the order of his conviction and sentence under Section 302 of the Indian Penal Code are set aside.

The appellant, who is on bail, stands discharged of liability of the bail-bonds furnished by him.

In the result, Criminal Appeal (D.B) No. 174 of 2001 is allowed.

The court appreciates the assistance rendered by Mr. Gaurav, the learned Amicus and Mr. Hardeo Prasad Singh, the learned counsel for the State.

The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bill(s).

Let lower court records be transmitted to the court concerned, forthwith.