Kalo Murmu vs State of West Bengal

Debasish Kar Gupta , J. - This appeal is directed against the order of conviction of the appellant dated December 12, 2007, for commission of offence punishable under Section 302 of the Indian Penal Code (hereinafter referred to as the I.P.C.) and sentence dated December 13, 2007, to suffer simple imprisonment for life and a fine of Rs.5000/- in default to suffer simple imprisonment for additional period of five (5) months passed by the learned Additional District & Sessions Judge, 1st Court, Suri, Birbhum in Sessions Trial No.3 of 2007 arising out of Sessions Case No.13 of 2007.

On July 4, 2006, PW 1 found the dead body of his brother Sukul Murmu son of Jama Murmu aged about 30 years lying on the courtyard of his house situated in Village-Raihat under Police Station-Sainthia, District-Birbhum. A deep cut injury round the throat of the above dead body was noticed. The deceased was wearing a yellow coloured underpant. His entire body was full of blood. PW 1 lodged a written complaint dated July 4, 2006, to Sainthia Police Station, District-Birbhum. It was received at Raihat village on July 4, 2006 at 08.45 hours on the above date and the same was forwarded to the Sainthia Police Station through Ram Gopal Mukherjee, Assistant Sub-Inspector, Sainthia Police Station. Initially Sainthia P.S. U/D Case No.31/06 dated July 4, 2006 was initiated. Thereafter, on receipt of the above letter of complaint a formal FIR bearing Sainthia P.S. Case No.45 of 2006 dated July 4, 2006 was drawn on the above date at 10.05 hours on the basis of G.D. Entry No.154. The Officer-inCharge, Sainthia Police Station, District-Birbhum (PW 12) engaged PW 13 as investigating officer of the above case.

PW 13 immediately visited the place of occurrence. He prepared a rough sketch map of the place of occurrence along with index. He conducted inquest examination over the dead body of the aforesaid deceased person. He also seized blood stained earth from the place of occurrence. PW 1 and PW 2 were the witnesses of the above seizure list. He further seized wearing apparels of the deceased person. The above dead body was sent to the morgue of Suri Sadar Hospital through Constable Sadhan Ghosh for post mortem examination. Post mortem examination was conduced over the dead body of the aforesaid deceased by PW 14 on July 4, 2006, at 14.05 hours with reference to Sainthia Police Station U.D. Case No.31/06 dated July 4, 2006. On post mortem examination one transversely situated incised wound on front of neck measuring 2" x �" x �" in size severing the skin, great vessels of the neck and Trachea was found. According to the above post mortem report, amongst others, rigor mortis was present in the dead body. The stomach and the bladder were found empty. According to the opinion of the doctor (PW 14), the death was due to haemmorahage and shock and as a result of the injuries which were antemortem and homicidal in nature.

The appellant was arrested on July 17, 2006 from Village-Raihat, Police Station-Sainthia, District-Birbhum. Charge sheet bearing No.58 dated September 6, 2006 was filed against the appellant punishable under Section 302 of the I.P.C. Charge was framed against the appellant on March 13, 2007, for commission of offence punishable under Section 302 of the I.P.C.

After examining fourteen (14) prosecution witnesses and bringing documentary evidences on record as also recording the statement of the appellant under Section 313 of the Cr.P.C. the impugned judgment was delivered.

It is submitted by Ms. Meenal Sinha, learned amicus curiae, that the prosecution case was based on circumstantial evidence. The chain of truth was not proved beyond all reasonable doubts. According to Ms. Sinha, the sheet anchor of the prosecution case was a extra-judicial confession based on hearsay evidence. According to Ms. Sinha, the prosecution case was based on the above extra-judicial confession and the reason behind the commission of offence by the appellant was a suspicion of setting his house on fire 2/3 months back prior to the date of occurrence, but the above motive was also not proved beyond all reasonable doubts.

It is also submitted by Ms. Sinha that though the blood stained earth of the place where the dead body of the deceased had been found and the wearing apparels of the deceased were seized, those were not sent for obtaining report from the Forensic Serological Laboratory neither the weapon of offence was recovered. Therefore, according to Ms. Sinha, the commission of offence by the appellant was not proved beyond all reasonable doubts.

Reliance is placed by Ms. Sinha on the decisions of Gopal Sah v. State of Bihar, reported in (2008) 17 SCC 128, State of Haryana v. Rajinder Singh, reported in (1996) 8 SCC 77, Vijay Shankar v. State of Haryana, reported in (2015) 12 SCC 644 and K.N. Narendranath v. State of Karnataka, reported in (2009) 15 SCC 52 in support of her above submissions.

It is submitted by Mr. Ranabir Roy Chowdhury, learned State advocate that in the FIR or inquest report the name of the appellant was not mentioned. According to the evidence of PW 1, PW 2, PW 3, PW 4, PW 5, PW 7, PW 8, PW 9, PW 10 and PW 11, the appellant himself made a confession in presence of villagers that he had committed murder of the deceased person on the basis of a suspicion that his house had been burnt at the instance of the deceased. Out of the above witnesses PW 2, PW 8 and PW 10 were present when the appellant had made the above confessional statement before the villagers. Out of the aforesaid witnesses PW 8 and PW 10 were co-villagers. According to Mr. Roy Chowdhury, taking into consideration the above evidence in its entirety the credibility of the evidence of above prosecution witnesses was proved beyond all reasonable doubts.

We have heard the learned Counsels appearing for the respective parties carefully and we have considered the facts and circumstances of this appeal on the basis of the evidence on record. The case of the prosecution was not based on the evidence of eyewitness. It was based on circumstantial evidence or more particularly on extra-judicial confession of the appellant before the villagers.

It is the settled principles of law that the acceptability of extra-judicial confession depends upon such confession in a fit state of mind provided the evidence of extra-judicial confession is reliable, trustworthy and beyond reproach and passes the touchstone of credibility. The confession will have to be proved like any other fact. It would depend on the nature and circumstances, the time when the confession was made and the credibility of the witnesses who speak of such a confession. Reference may be made to the decision of State of Rajasthan v. Raja Ram, reported in (2003) 8 SCC 180 and the relevant portion of the above decision is quoted below:-

"19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to 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. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak of such a confession. Such a confession can be relied upon the conviction can be founded thereon if the evidence about the confession comes from the mouth of 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 of 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. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility."

(Emphasis supplied)

The principles of evidentiary value and reliability of extra-judicial confession have been summarised by the Hon''ble Supreme Court in the matter of Sahadevan v. State of Tamilnadu, reported in (2012) 6 SCC 403 and the relevant portion of the above decision is quoted below:-

"16. Upon a proper analysis of the above-referred judgments of this Court, it will be appropriate to state the principles which would made an extrajudicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guid 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 be 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."

From the settled principles of law it is evident that extra-judicial confession attains greater credibility and evidentiary value if, amongst others, it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. In Padala Veera Reddy v. State of A.P., reported in 1989 Supp (2) SCC 706, it has been held by the Hon''ble Supreme Court that in a case depending upon circumstantial evidence, the following tests must be satisfied. The relevant portion of the above decision is quoted below:-

"(1) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;

(2) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) 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 none else; and

(4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

In the instant case, we find from the evidence on record that the dead body of the deceased person was found on the date of occurrence in the courtyard of his house in front of his room in the morning. His throat was cut and his body and apparels (yellow coloured underpant) were full of blood.

From the post mortem report it was found that the stomach and bladder of the deceased were empty. So, the murder took place six hours after he took the last meal on the last night. However, rigor mortis was present on his body at the time of post mortem examination at 14.05 hours on the date of recovery of the dead body. So far as the extra-judicial confession of the appellant was concerned, it was brought on record by the oral evidence of PW 1, PW 2, PW 3, PW 4, PW 5, PW 7, PW 8, PW 9, PW 10 and PW 11. The evidence of PW 1, PW 3, PW 4, PW 5, PW 7, PW 9 and PW 11 should not be considered as something more than hearsay evidence. According to their evidence, neither it had been stated by any one of them that he was present at the time of such confession nor the name of any other person present at the time of such confession of the appellant was mentioned. Though according to PW 2, PW 8 and PW 10 they were present when the confession had been made by the appellant in presence of villagers, no date, place or probable time of such confession were recorded in their evidence. In view of the above the extra-judicial confession of the appellant in committing the murder of the deceased person did not attain the credibility on the basis of evidentiary value since it was not supported by a chain of cogent circumstances and corroboration of the same from the evidence of prosecution witnesses. Needless to say that from the evidence of the prosecution witnesses, as discussed herein above, no fact was established which was consistent only with the hypothesis of the guilt of the accused and which should not be explainable of any other hypothesis except that the accused was guilty of commission of offence. Therefore, the conviction of the appellant requires our interference. The impugned judgment, order of conviction and the sentence are quashed and set aside. This appeal is, thus, allowed. The appellant is directed to be set free expeditiously unless he is otherwise required in any case.

Let this judgment together with the Lower Court''s records be sent back to the learned Court below expeditiously.

Urgent photostat certified copy of this judgment, if applied for, be given to the parties, on priority basis.

Debasish Kar Gupta, J. - I agree.