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R.K. Manisana, J.—This is an appeal by two lifers who were convicted by the Additional Sessions Judge Jorhat on 15.9.89 under Sections 302/34 and 201, IPC in Sessions Case No. 30 (J-J) 89.
The story of the prosecution, in brief, is thus. Petua and Haradhan of Lahdoigarh disappeared and in the month of June 1984 and they were not seen alive. Sometime in the month of June 1985, the informant (PW-1) who is father of Petua lodged an ejahar with the Officer in Change of Lahdoigarh Police Station on 10.6.85 slating that he came to know from a reliable source that the two boys were killed and buried in a certain place in Tinikunia Bhakat by the two Appellants and three other persons. On receipt of the ejahar, a case was registered under Sections 302 and 201, IPC. The police arrested the accused persons. The Appellants made confessional statements before the Magistrate u/s 104, Code of Criminal Procedure In the confessional statement of Appellant Genu Modi, it is stated that Petua was killed and his dead body was thrown to Dhansiri river. In the confessional statement of Appellant Dangarbabu Modi, it is stated that Haradhan was killed and his dead body was buried at the side of the river Maleng. On the basis of the disclosure statement made by the accused Appellant Genu Modi, in presence of the witnesses and the Magistrate (PW-10) a human skull and bones, a muffler around the skeleton and a pair of trousers were dug up. The skeleton was sent to Doctor (PW-6) for post mortem examination. The Doctor could not say about the cause of death, age of the person. However, he preserved the skeleton for chemical examination. The IO (PW-9) completed the investigation and submitted charge-sheet, under Sections 302 and 201, IPC, against the two Appellants and three other persons. The learned Additional Sessions Judge framed charges against the five accused persons including the Appellants u/s 302 read with section 34, IPC, and a separate charge u/s 201, IPC. The accused pleaded not guilty. The additional Sessions Judge convicted the Appellants u/s 302 read with Sections 34, IPC, and 201, IPC, and acquitted other three accused on all the charges. Hence, this appeal by the two lifers.
There is no eye witness. Prosecution relies on the retracted confusions the discovery of human skull and bones u/s 27 of the Evidence Act. Learned Counsel for the Appellants has contended that "corpus (sic)" has not been established and, therefore, the Appellants are entitled to acquittal.
Question which, therefore, arises for consideration is whether corpus delicti has been proved, Ballentine Law Dictionary says:
Corpus delicti, - The body of the offence, the substance of the crime, As applied to homicide cases, it has at least two component elements; the fact of death; and the criminal agency of another person as the cause thereof.
In Section 35 of the Underhill''s Criminal Evidence, Sixth Edition, it is stated:
The Corpus delicti is the body or substance of the crime. It normally contains two elements; (1) the end result of an act, such as, in a homicide case, death; and (2) the fact that the end result was produced by someone''s criminal act.
It is sometimes said that corpus delicti also includes the criminal agency of the accused, but this makes the corpus delicti the same as the whole charge, and it is more that it includes only the end result and the criminal agency of someone but not of any particular person.
4.A. In Wharton''s Criminal Evidence Vol. 1 at page 208 it has been stated in the following terms:
Definition; essential elements, - The corpus delicti of a crime means the body or the substance of the crime Charged. It usually includes two elements : (1) The act; (2) the criminal; agency of the act. In homicide it consists of death as the result and the criminal agency of another as the means. To the corpus delicti, in this sense, it is requisite, first, that it be shown that the deceased died from the effects of a wound; second, that the wound was unlawfully inflicted, and that the Defendant was implicated in the crime.
The finding of a dead body establishes only the corpus, The finding of such body under circumstances that indicate a crime indicate the delicti or felonious killing. When these facts concur, the first clement of the, corpus; delicti, the criminal act, is made to appear. Hence it is not necessary to the establishment of a complete corpus delicti that identity should be shown, because the dead body and the crime against it complete all that is indicated by the corpus delicti. The second element is the agency in the crime.
In the above view of the matter, the term "corpus delicti" as applied to homicide case, contains two components - (a) fact of death, and (b) death was caused by someone''s criminal act. In Rama Nand and Others Vs. State of Himachal Pradesh, the Supreme Court has held that "before seeking to prove that accused is perpetrator of the murder, it must be established that homicidal death has been caused". Therefore, the charge "corpus delicti" means the facts proved make out an offence without ascertaining as to who had committed offence, that is to say, in homicide case, if homicidal (sic) is not proved it is not necessary to ascertain as to who committed offence, and the enquiry as to who had committed offence begins after the corpus delicti or homicidal death has been established.
In R. v. Onufrejczyk 1985-1 QB 338 it has been held that even though there is no body or even trace or a body or any direct evidence as to the manner of the death of the victim, corpus delicti can be proved by a number of facts, which render the conviction of the crime certain. The Queen Bench case has received approval of the Supreme Court in Anant Chintaman Lagu Vs. The State of Bombay, In Rama Nand''s case (supra), the Supreme Court has observed that the corpus delicti or the fact of homicidal death can be proved by circumstances which definitely lead to the conclusion that within all human probabilities, the victim has been murdered by the accused concerned. This being the position the fact that an offence has been committed must not necessarily be proved by direct evidence but it may be proved by circumstantial evidence and other materials admissible under the law.
Now coming to the case on hand, the question before us is whether the retracted confession by the alleged murderers (Appellants) and the alleged discovery u/s 27 can be the basis of conviction of the accused.
Admittedly, in the present case, one of the dead bodies was not found at all, and the prosecution case is that skull and bones of one of the dead bodies (which we shall refer to as the "skeleton") were discovered following disclosure statement made by the accused Genu to pie police. The question then is whose skeleton it was? The evidence of PW-9, the investigating officer, is that accused Genu made a statement to him that the dead body of Haradhan was buried near the river Maleng after killing him, and that the accused was prepared to point the spot. Accordingly, the accused was taken to the spot and the skeleton along with a muffler and pair pf trousers (which we shall refer to as the ''cloths'') were dug up, Family members, of Haradhan and Petua could not identify as to who either Haradhan or Fetus used the clothes. According to PWs-2 and 3, accused Genu showed the place where the dead body of petua was buried and From that place the skeleton and cloths were dug up. PW-4, father of Petua, and PW-2, a neighbour of Petua, identified the cloths as belonged to Petua. But, PW-5, brother of Haradhan, claims that the cloths were worn by Haradhan. PW-6, the Doctor who conducted post mortem examination on the skeleton, does not help us. He, however, has stated that skeleton was of a male. There is no material to show that recovery memorandum was made by the IO in respect of the discovery of skeleton and cloths. The accused Genu in his statement u/s 313, Code of Criminal Procedure, denies that he made the disclosure statement or that he pointed out the alleged spot. In view of the above discussions, we are of the opinion that it would be unsafe to rely oh the disclosure statement and discovery u/s 27. In other words, the prosecution has failed to prove that skeleton was of Haradhan or Petua.
In respect of retracted confession by an accused, it is unsafe to base the conviction on a retracted confession unless it is corroborated by trustworthy evidence. There is no definite law that a retracted confession cannot be the basis of the conviction but it has been laid down as a rule of practice and prudence not to rely on retracted confession unless corroborated. In Shrishail Nageshi Pare Vs. State of Maharashtra, the Supreme Court has held that it is well established that a retracted confession by an accused may form the basis of a conviction of that accused if it receives some general corroboration from other independent sources. In the present case, there is no material to corroborate the retracted confession. One of the dead bodies was not found at all. The prosecution hat, failed to prove that the skeleton was of Haradhan or Petua. Under these circumstances, it will be unsafe to rely on the retracted confession by the accused and, therefore, the accused-Appellants must be given the benefit of the doubt. Therefore, the prosecution has failed to prove the charges levelled against the accused.
For the foregoing reasons, the appeal is allowed. The convictions of the Appellants and sentences awarded against them are set aside. The Appellants shall be released forthwith.