Harvilas and Ors. vs Smt. Gulab Bai

This criminal appeal has been filed against the judgment dated 13/11/2006 passed by Session Judge, Sidhi in ST.No.70/2006, whereby learned Session Judge found the appellant guilty for the offences punishable under Section 302 of the IPC and sentenced him to life imprisonment and fine of Rs.5,00/-, and in default of payment of fine amount, further R.I. for three months.

Brief facts of the case are that on 05/06/06/ at 10:00 pm deceased Suryabhan Singh, a resident of village Katheri, District Sidhi came back home after labour work and slept on the cot in the courtyard of the house after having a meal. His wife Buton (PW/2) was also sleeping in the house. When next day at 4:00 am she got up and went to the courtyard where Suryabhan Singh was sleeping, she saw that the

blood spread beneath the cot on which Suryabhan Singh was lying. She also saw one injury on his neck, from where blood was oozing out and he was dead. On listening her crying, her sons Ram Suphal (PW/3), Bihari Singh (PW/4), Ramkumar Singh (PW/1), her daughter-in-laws Rambai and Sitabai came there and they also saw the dead body of Suryabhan Singh lying on the Cot. Thereafter, Ramkumar Singh (PW/1) went to Police Chouki Niwas, P.S.Sidhi and lodged the report, (Ex.P/2) which was written by A.S.I. S.N. Shukla (PW/9) and sent it for original registration to P.S. Sarai, District Sidhi. At P.S. Sarai, on that Head Constable Chandra Pratap Mishra registered Crime No.89/2006 (Ex.P/31) for the offence punishable under Section 302 of the IPC. S.N. Shukla (PW/9) investigated the matter. During investigation on 06/05/06 he went to the spot and prepared spot map (Ex.P/3) on identification of Ram Kumar Singh (PW/1) and also seized sample of blood stain and simple soil (Article A and B) from the spot , one blood stained shawl (Article C) lying on the dead body of deceased and prepared seizure memo (Ex.P/26). He also prepared inquest report (Ex.P/5) of the dead body of deceased Suryabhan Singh in presence of Panch witnesses. Santosh Kumar (PW/7) took photos of the scene of crime and dead body of Suryabhan Singh. S.N. Shukla (PW/9) seized those photographs and its negatives (Ex.P/11 to Ex.P/19) from the possession of Santosh (PW/7) and prepared seizure memo (Ex.P/9). Thereafter, he sent the dead body of Suryabhan Singh for postmortem along with request letter (Ex.P/21) through Trilok Singh (PW/8) at Primary Health Center, Niwa where Dr. Harishchandra Mishra (PW/11), conducted autopsy of the dead body of deceased Suryabhan Singh and gave Postmortem report (Ex.P/21A). He also seized blood stained vest of deceased Suryabhan Singh from his dead body and sent it to Police Station through Constable Trilok Singh(PW/8), in a sealed packet alongwith seal impression. S.N. Shukla (PW/9) seized that packet and prepared seizure memo (Ex.P/24). On 08/05/2006 appellant

came to the Police Chowki, Niwas along with blood stained Tangi (Artical D) and confessed before S.N. Shukla (PW/9) that he had murdered Suryabhan Singh. On that SN. Shukla (PW/9) recorded his confessional statement (Ex.P/6) before panch witness and also seized that Tangi from his possession and prepared seizure memo (Ex.P/7), arrested him and prepared arrest memo (Ex.P/1) and sent the information (Ex.P/27) of his arrest to Budhraj Singh, the then Up- sarpanch and thereafter sent the seized Tangi to Dr. Harishchandra Mishra (PW/11) alongwith query letter Ex.P/28-A. After examining that Tangi Dr. Harishchandra Mishra (PW/11) gave the report that the injuries sustained by deceased could be caused by that Tangi. S.N. Shukla (PW/9) also recorded the statement of Ram Kumar Singh (PW/1), Butan (PW/2), Ramsuphal Singh (PW/3) and Bihari Singh (PW/4). Dalganjan Singh, Budhraj Singh, Pancham Singh(PW/5), Smt. Sunita, Hiriya, Rambai and Raghvendra Bahadur Singh (PW/6) and sent all the seized articles i.e. sample of blood stain and simple soil, Tangi and blood stained clothes to Forensic Science Laboratory, Sagar alongwith letter (Ex.P/30). From where report (Ex.P/34A) was received. After completion of investigation, Police filed charge-sheet against the appellant before Judicial Magistrate, First Class, Sidhi, who committed the case to the court of Sessions. On that S.T. No.70/06 was registered.

Learned Sessions Judge framed charge against the applicant for the offence punishable under Section 302 of the IPC. Prosecution produced as many as 11 witnesses to prove his case. The applicant took the defence that he is innocent and has falsely been implicated in the case. However, learned Sessions Judge after trial found the appellant guilty for the offence punishable under Section 302 of the IPC and sentenced him for life imprisonment and fine of Rs.5,00/- and in default of payment of fine amount further R.I. for three

months. Being aggrieved by the impugned judgment, appellant has filed this Criminal Appeal.

Learned counsel for the appellant submitted that there is no eyewitness of the incident. The prosecution case is solely based on circumstantial evidence. It is settled that when there is no direct evidence of the commission of offences, the case rests entirely on circumstantial evidence, all the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established. While in this case no chain of circumstances has been proved by the prosecution beyond reasonable doubt against appellant. The prosecution produced only two circumstances against the appellant, the confession of guilt by the appellant before Ravendra Bahadur Singh (PW/6) and S.N. Shukla (PW/9) and the seizure of Tangi from the possession of appellant. But in statement of Ravendra Bahadur Singh (PW/6) there are many contradictions, so his statement is not believable. Although, SN. Shukla (PW/9) also deposed that the appellant himself came to Police Chowki Nivas and admitted his guilt, but the confession before the Police Office is not admissible in evidence. In the FSL report (Ex P/34A) it clearly mentioned that no blood was found on the seized Tangi. So only on the seizure of Tangi which is commonly found in the house of villagers no adverse inference can be drawn against appellant. Learned trial Court without appreciating these fact wrongly found appellant guilty for the offence.

On the other hand learned counsel appearing for the respondent/State submitted that there is ample evidence on record to prove the guilt of the appellant. Learned trial Court did not commit any mistake in finding the appellant guilty for the aforesaid offence.

Point of determination in this appeal is whether the conviction and sentence awarded by the trial Court against appellant under Section 302 of I.P.C. are liable to be set aside for the reasons stated in the memo of appeal and raised during argument.

On the point that Suryabhan Singh died in the intervening night of 05-06/05/2006 between 10:00 PM to 04:00 AM at his house situated at village Katheri and his death was homicidal which amounts to murder, Butan (PW/2) deposed that on the date of incident at 10:00 in the night, her husband Suryabhan Singh came back home after labour work and slept on the cot in the courtyard of the house after having a meal. She also slept in the house. When she got up at 4:00 in the morning and went where Suryabhan was sleeping, she saw that the blood was spread beneath the cot on which Suryabhan Singh was lying. She also saw one injury on his neck, from where blood was oozing out and he was dead. Her statement is also corroborated by the statements of her son Ram Suphal (PW/3), Bihari Singh (PW/4), Ramkumar Singh (PW/1) and Pancham Singh (PW/5). They also deposed that when they reached the spot, they saw Suryabhan Singh lying dead on the cot and there was an injury on his neck. On that point prosecution story is also supported from the statement of S.N. Shukla (PW/9) who deposed that on 06/05/06 he was posted as an ASI, Police Chowki at Nivas. Ram Kumar Singh came to Police Chowki and informed that some unknown person murdered his Uncle Suryabhan Singh and his dead body was lying in the house. On that he wrote FIR (Ex.P/2) and sent it for original registration and thereafter went to the spot and prepared spot map (Ex.P/3) on information of Ram Kumar Singh (PW/1) and also seized sample of blood stain and simple soil (Article A and B) from the spot and a blood stained shawl (Article C) which was lying on the dead body of deceased and prepared seizure memo (Ex.P/26). He also prepared inquest memo (Ex.P/5) of the dead body of deceased Suryabhan Singh in presence of witnesses and also got the photographs Ex. P/12 to Ex.P/18 of the dead body of Suryabhan Singh clicked, seized them and prepared seizure memo (Ex.P/9) and also sent the dead body of Suryabhan Singh for postmortem along with the letter (Ex.P/21).

Dr Harish Chand Mishra (PW/11) who conducted the postmortem of dead body of deceased Suryabhan Singh deposed that on 06/05/06 he was posted as Senior Medical Officer at Primary Community Health Centre, Niwas. On that day he conducted postmortem of dead body of Suryabhan Singh and found following external injuries on his body :-

One stab wound (incised wound) size 10'''' x 4'''' left side of his neck. 2. His mandible and muscles of right side of neck was cut. 9. He further deposed that all injuries are ante mortem and caused by hard and sharp object. In his opinion, Suryabhan Singh had died due to shock which was caused due to excessive haemorrhage and the duration of death was within 24 to 48 hours from the postmortem and injury was homicidal in nature. In this regard, his statement is also corroborated by postmortem report (Ex.P-21A).

There is no significant contradiction in the statements of

the aforesaid witnesses on that point. From the statements of these

witnesses, it is clearly proved that Suryabhan Singh died in the

intervening night of 05-06/05/2006 between 10:00 PM to 04:00 AM at

his house situated at village Katheri due to injuries sustained by him in

the neck which were caused by a hard and sharp object and his death

was homicidal which amounts to murder.

But, as regards the fact whether appellant murdered Suryabhan Singh. Admittedly, there is no eye witness or direct evidence in the case, however the trial Court has held that the prosecution has proved the guilt of the appellant beyond reasonable doubt on the basis of circumstantial evidence on record and the extra- judicial confession said to have been made by the appellant to Ravindra Bahadur Singh (PW/6).

As far as circumstantial evidence is concerned, the normal

principle in a case based on circumstantial evidence is that the

circumstances from which an inference of guilt is sought to be drawn

must be cogently and firmly established; that those circumstances

should be of a definite tendency unerringly pointing towards the guilt

of the accused; that the circumstances taken cumulatively should form a

chain so complete that there is no escape from the conclusion that

within all human probability the crime was committed by the accused

and they should be incapable of explanation on any hypothesis other

than that of the guilt of the accused and inconsistent with their

innocence, as held by the Hon''ble Apex Court in the matter of Trimukh

Maroti Kirkan vs. State of Maharashtra, (2006) 10 SCC 681. The

same principles were reiterated in Sunil Clifford Daniel vs. State of

Punjab, (2012) 11 SCC 205, Sampath Kumar vs. Inspector of Police,

Krishnagiri (2012) 4 SCC 124 and Mohd. Arif @ Ashfaq vs. State

(NCT of Delhi ), (2011) 13 SCC 621.

Regarding extra- judicial confession Hon''ble Apex Court in

the case of Sahadevan & Anr vs State Of T.Nadu reported in [2012) 6

SCC 403 after considering his earlier decisions has laid down that:-

(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".

Hon''ble Apex Court in the case of Baskaran & Anr vs

State Of Tamil Nadu, (2014) 5 SCC 765 again held that extra-judicial

confession can be relied upon only if the same is voluntary and true and

made in a fit state of mind. The value of the evidence as to the

confession like any other evidence depends upon the veracity of the

witness to whom it has been made. The value of the evidence as to the

confession depends on the reliability of the witness who gives the

evidence.

In the light of above pronouncement of the Hon''ble Apex

Court if we examine the evidence on record, prosecution produced

following evidence against appellant :-

(i) Confession of appellant before Ravendra Bahadur

Singh (PW/6) and S.N. Shukla (PW/9) that he

murdered Suryabhan Singh.

(ii) Seizure of one Tangi from the possession of

appellant.

As the Court below has based its conclusion on the

statement of Ravindra Bahadur Singh (PW/6) and has held the

appellant guilty mainly on the basis of his evidence, it would be

appropriate to examine his evidence in detail. 17. Although Ravindra Bahadur Singh (PW/6) in his

examination-in-chief deposed that one morning when he was resting in

his house, appellant came and demanded Rs.5/-, so he asked him that

where he would go. On that, appellant told that he had murdered

Suryabhan Singh resident of village Katheri and was going to Police

Chowki, Niwas and since he had no money he did not give it to the

appellant. Meanwhile, a bus came there, applicant stopped and boarded

it and went by it .

But, This witness in his cross-examination stated that

applicant had never come to him for demanding money before that

incident. He did not even inform the family members of Suryabhan

Singh when applicant had told him that he had murdered Suryabhan

Singh, which seems quite unnatural. He did not state that applicant had

a Tangi, when he had come to him, while S.N. Shukla deposed that

appellant came at Police Chowki, Niwas along with a Tangi. Police

recorded his statement after 12 days of the incident. Although,

Ravendra Bahadur Singh (PW/6) deposed in his cross-examination that

he went to the Police Choki to inform that fact to Police on the same

day. Police met him on the way and he informed the Police regarding

confession of appellant. But S.N. Shukla, A.S.I. (PW-19) in his cross-

examination clearly denied from the fact of having met Ravindra

Bahadur Singh (PW/6) on 08/05/06 and still not recording his statement

on that day and clearly deposed that he recorded his statement for the

first time on 21/05/06. So the statement of Ravindra Bahadur Singh

(PW/6) that he had informed the police regarding confession of

appellant on the same day also becomes false. In these circumstances

his statement becomes doubtful which can not be relied upon. In the

considered opinion of this Court, learned Trial Court committed

mistake in believing his statement.

Although, S.N. Shukla, A.S.I. (PW-19) also deposed that

appellant came to Police Chowki, Niwas on 08/05/06 along with a

blood stained tangi and confessed in the presence of witnesses that he

had murdered Suryabhan Singh, on which he recorded his confessional

statement (Ex.P/6), but according to provisions of Section 25 of the

Evidence Act the confession of accused before the Police officer is not

admissible in evidence.

As far as circumstantial evidence is concerned, S.N. Shukla

A.S.I.(PW/9) deposed that appellant came to Police Chowki, Niwas on

08/05/06 with a blood stained Tangi. He seized that Tangi from his

possession and prepared seizure memo (Ex./P.7). On that point his

statement is also corroborated by the statement of Ram Suphal (PW/3)

son of deceased Suryabhan Singh. S.N. Shukla (PW/9) further deposed

that he sent that Tangi to Dr Harish Chand Mishra (PW/11) for

examination along with letter (Ex.P/28) and Dr. Harish Chand Mishra

deposed that he examined that Tangi and gave the report (Ex.P/28A) to

the effect that the injuries sustained by Suryabhan Singh could be

caused by that Tangi and blood stains were also present on that Tangi at

the time of examination. But in the report (Ex.P/28A) given by the Dr

Harish Chand Mishra (PW/11) it is not mentioned that he saw blood

stains on seized Tangi. In the FSL report (Ex.P/34A) it is clearly

mentioned that no blood stains were found on the Tangi ( Article-D ). So

the statement of Ram Suphal (PW/3), S.N. Shukla A.S.I. (PW/9) and

Dr Harish Chand Mishra (PW/11) that they saw blood stains on sized

Tangi becomes doubtful. Even otherwise there is no evidence on record

that the blood found on the Tangi was human blood and that its blood

group matched with the blood group of deceased Suryabhan Singh.

Hon''ble Apex Court in the case of Namdeo Daulata

Dhayagude and Ors. vs State Of Maharashtra, AIR 1977 SC 381 held

that the evidence of recovery of human blood-stained clothes from

accused cannot be regarded as a conclusive piece of evidence. But it is

certainly a piece of evidence which goes to support the other evidence

about the guilt of accused. In the case of Kansa Behera vs. State Of

Orissa, AIR 1987 SC 1507 Hon''ble Apex Court also held

circumstantial evidence recovery of blood-stained clothes from

accused - report of sociologist that the clothes were stained with human

blood but blood group not indicated- evidence of blood group is only

conclusive to connect bloodstains with accused no reliance could be

placed on the circumstance.

Even in the case seized Tangi was not produced before

Court during trial of the case. Appellant''s motive behind the murder of

Suryabhan Singh could also not be proved by the prosecution. On the

contrary Bihari Singh (PW/4) son of the deceased admitted in his cross-

examination that there is no animosity between appellant and his father.

So, in the considered opinion of this Court only on the circumstance

that one Tangi was seized from the possession of appellant, which

commonly found in the house of villagers it cannot be assumed that

appellant murdered deceased Suryabhan Singh.

From the above discussion, in the considered opinion of

this Court from the evidence produced by the prosecution against the

appellant it cannot be assumed that appellant murdered Suryabhan

Singh. The trial Court wrongly found appellant guilty causing the

murder of Suryabhan Singh.

Hence appeal is allowed and the appellant is acquitted from

the charge under Section 302 of the IPC.

Appellant is in jail. He be released forthwith, if not required

in any other case.

With the aforesaid observations and directions the appeal is disposed of.