Laxman vs State of C.G.

Hon''ble Shri Radhe Shyam Sharma, J.—This appeal is directed against judgment dated 12-10-2007 passed by 1st Additional Sessions Judge, Baloda Bazar in Sessions Trial No. 54/2007. By the impugned judgment, accused/appellant Laxman has been convicted and sentenced in the following manner with a direction to run the sentences consecutively:

Case of the prosecution, in brief, is as under:

Deceased Ishwari was daughter and Ishwar (PW-2) is son of the appellant and they were residing together. In the intervening night of 21st and 22nd of October, 2006, the deceased was not found in the house. Sushil Sonwani (PW-1) informed Police Station Baloda Bazar about missing of the deceased. Missing Report (Ex. P-18C) was recorded by Head Constable Omprakash Mishra (PW-12). On 23rd October, 2006, dead body of the deceased was found in a Well. Sushil Sonwani (PW-1) lodged Merge Intimation (Ex. P-1) in Police Station Baloda Bazar. The appellant made extra judicial confession before the villagers. Extra judicial confession of the appellant was recorded vide Ex. P-4. The Investigating Officer reached the place of occurrence, gave notice (Ex. P-2) to Panchas and prepared inquest (Ex. P-3) on the dead body of the deceased. The dead body of the deceased was sent to Government Hospital, Baloda Bazar for post mortem examination vide Ex. P-12. Dr. Pramod Tiwari (PW-14) conducted post mortem examination on the dead body of the deceased and gave his report (Ex. P-19), in which, he found multiple abrasions over the face and maxilla of the deceased. Her hymen was ruptured and thyroid cartilage was fractured. He opined that cause of the death was asphyxia due to throttling and the death was homicidal in nature.

In further investigation, memorandum statement of the appellant was recorded u/s 27 of the Evidence Act vide Ex. P-5 and at his instance, pink and black underwear''s were seized from him vide Ex. P-6 and P-7, respectively. Regular FIR (Ex. P-11) was registered in Police Station Baloda Bazar. Site-map (Ex. P-10) was prepared by the Investigating Officer. The seized articles were sent to Forensic Science Laboratory, Raipur for examination. Report was received therefrom. In the FSL Report, articles A - underwear of the deceased, B-underwear of the appellant and C- slide were found stained with human spermatozoa.

After completion of the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Baloda Bazar, who, in turn, committed the case to the Court of Session, Raipur, from where it was received on transfer by the learned 1st Additional Session Judge, Baloda Bazar, who conducted the trial and convicted and sentenced the appellant as mentioned above.

Shri Santosh Kumar Sahu, learned Counsel for the appellant argued that the finding of guilt recorded on the basis of evidence of last seen together, memorandum statement of the appellant, recovery of underwear of the deceased and extra judicial confession of the appellant is unreasonable. He further argued that extra judicial confession of the appellant was recorded vide Ex. P-4 in presence of a police officer. The so called statement made by the appellant before a police officer cannot be used against the appellant. The same is inadmissible in evidence. Therefore, the appellant deserves acquittal. He placed reliance on Madhu Vs. State of Kerala, .

Shri Rajendra Tripathi, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Sessions Judge do not warrant any interference by this Court.

We have heard learned Counsel for the parties at length and have perused the record of Sessions Trial No. 54/2007. Admittedly, there is no eye witness to the incident and the case of the prosecution is based on the circumstantial evidence. The main circumstances, which the learned Additional Sessions Judge appears to have taken note of, are as follows:

(i) The appellant and the deceased were residing together,

(ii) Extra judicial confession of the appellant regarding commission of murder of the deceased, and

(iii) Memorandum statement of the appellant and at his instance, recovery of underwear of the deceased which was found stained with human spermatozoa.

It is welt settled that with a view to base a conviction on circumstantial evidence the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances from which the conclusion of guilt is to be drawn should be fully established. It is also well settled that suspicion, howsoever grave it may be, cannot be substitute for a proof and the Court should take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence.

In State of U.P. Vs. Ram Balak and Another, the Hon''ble Supreme Court has held thus:

9. it has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh Vs. State of Rajasthan, , Eradu and Others Vs. State of Hyderabad, , Earabhadrappa Vs. State of Karnataka, State of U.P. v. Sukhbasi, 1985 Supp SCC 79 Balwinder Singh alias Dalbir Singh Vs. State of Punjab, , and Ashok Kumar Chatterjee Vs. State of M.P., The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram Vs. State of Punjab, , it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.

We may also make a reference to a decision of this Court in C. Chenga Reddy and Others Vs. State of Andhra Pradesh, , wherein it has been observed thus: (SCC pp. 206-07, para 21)

In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature.

Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.

In Padala Veera Reddy Vs. State of Andhra Pradesh and others, the Hon''ble Supreme Court has held thus :

...This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests:--

(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 Bodh Raj @ Bodha and Others Vs. State of Jammu and Kashmir, , the Hon''ble Supreme Court has observed as under :

...The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (SCC p. 185, para 153)

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

Now, we shall proceed to examine the circumstantial evidence adduced by the prosecution in order to prove the offence against the appellant and shall see whether the prosecution has been able to prove the offence against the appellant in conformity with the above principles.

It is not disputed that the deceased was residing with the appellant, her dead body was found in a Well and her death was homicidal in nature. The prosecution has adduced evidence of extra judicial confession as its core evidence to connect the appellant with the crime in question. Now, we shall examine whether the prosecution has been able to prove the evidence of extra judicial confession?

Sushil Sonwani (PW-1), Akhilesh Mishra (PW-3), Mahendra Verma (PW-6), Ganeshram alias Fudda (PW-7) and Munshi (PW-8) deposed that the appellant made extrajudicial confession before them and admitted that he brought the deceased from the room to the Byara of Samaru, committed rape with her, killed her by throttling and threw her dead body in a Well. They further deposed that the extra judicial confession was recorded vide Ex. P-4. Ex. P-4 -bears their signatures.

Sushil Sonwani (PW-1) deposed that the appellant was interrogated in police station before villagers. The appellant admitted his guilt there. He further deposed that at that time, Akhilesh Mishra (PW-3), Mahendra Verma (PW-6), Munshi (PW-8) and Chainsingh (PW-9) were present there. He further deposed that Ex. P-4 was recorded in presence of police officer. Munshi (PW-8) also deposed that the appellant admitted his guilt before the Station House Officer (T.I.) and Constables: Chainsingh (PW-9) also deposed in similar fashion.

Akhilesh Mishra (PW-3) and Ashok Jangde (PW-5) deposed that Ishwar (PW-2) told them that the appellant committed rape with the deceased, killed her and threw her dead body in a Well. Ishwar (PW-2) deposed that his father (the appellant) took the deceased towards a Well, but thereafter, the appellant did not take back the deceased. When he enquired from the appellant about the deceased, the appellant told him that he had thrown the deceased in the Well and he also said that he will kill him too.

Ishwar (PW-2) deposed that the appellant did not do anything on the date of incident. He further deposed that villagers had asked from the appellant, but the appellant did not tell anything. He further deposed that he met with an Advocate in the Court and he deposed as was advised by the Advocate to him. Ishwar (PW-2) did not state about extra judicial confession of the appellant. Therefore, the evidence of Akhil Mishra (PW-3) and Ashok Jangde (PW-5) is not admissible.

Mohanlal (PW-4) deposed that the deceased came his house and asked about presence of the appellant there. He told her that the appellant was present in his own house. He further deposed that after sometime the appellant came there and took the deceased back. At about 12 midnight, Ishwar (PW-2) came to his house and told him that someone took the deceased away. Thereafter, he and the appellant searched for the deceased. Missing Report (Ex. P-18C) was lodged in Police Station Baloda Bazar. Ashok Jangde (PW-5) also deposed that Mohanlal (PW-4) and the appellant had searched for the deceased in the night.

Ganeshram alias Fudda (PW-7) deposed that the villagers said the appellant that if he will confess his guilt then they will save him. Then the appellant admitted his guilt before police officer.

In Madhu Vs. State of Kerala, ), the Hon''ble Supreme Court observed as follows:

The most significant issue in the present controversy is the veracity of the confessional statements made by the accused Madhu and Sibi before P.J. Thomas PW 21, Circle Inspector of Police on 13-5-1998. It is evident that the aforesaid statements were made by the accused before a police officer while the accused were in custody of the police. Section 25 of the Evidence Act postulates that a confession made by an accused to a police officer cannot be proved against him. Additionally, Section 26 of the Evidence Act stipulates that a confession made by an accused while in police custody cannot be proved against him. It is evident from the factual position narrated hereinabove, that the statements made by the accused Madhu and Sibi were made to a police officer while the accused were in police custody. It is, therefore, apparent that in terms of the mandate of Sections 25 and 26 of the Evidence Act, the said statements could not be used against accused Madhu and Sibi. But then, there is an exception to the rule provided for by Sections 25 and 26 aforesaid, u/s 27 of the Evidence Act.

In the instant case, so called extra judicial confession was made by the appellant in Police Station, Baloda Bazar in presence of the Station House Officer and other police personnel. Therefore, the extra judicial confession recorded vide Ex. P-4 is not admissible in evidence. The signature of the appellant was not taken in Ex. P-4. In view of the above, it cannot be said that the appellant made extra judicial confession.

The evidence adduced by the prosecution against the appellant is the memorandum statement of the appellant and the recovery of underwear of the deceased which was found stained with human spermatozoa.

Station House Officer Rakesh Baghel (PW-11) deposed that memorandum statement of the appellant was recorded by him u/s 27 of the Evidence Act vide Ex. P-5 and at the instance of the appellant, underwear of the prosecutrix was seized vide Ex. P-6. Mahendra Verma (PW-6) also deposed that memorandum statement of the appellant was recorded by Rakesh Baghel (PW-11) and at the instance of the appellant, underwear of the prosecutrix was seized vide Ex. P-6. Rakesh Baghel (PW-11) deposed that he sent the seized underwear to Forensic Science Laboratory, Raipur for chemical examination. Report of the FSL is placed on the record. In the FSL Report, the underwear of the deceased was found stained with human spermatozoa. In the FSL Report, it was found that the stains of human spermatozoa found on the underwear were not sufficient for serological examination, therefore, the underwear was not sent for serological examination.

In the instant case, the incident took place between 21-10-2006 to 23-10-2006. Section 53-A was incorporated in the Code of Criminal Procedure with effect from 23-6-2006. Section 53-A(2)(iv) of the Code of Criminal Procedure runs as follows:

53-A. (1) xxxxx xxxxx xxxxx

(2) The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely:--

(i) xxxxx xxxxx xxxxx

(ii) xxxxx xxxxx xxxxx

(iii) xxxxx xxxxx xxxxx

(iv) the description of material taken from the person of the accused for DNA profiling; and

xxxxx xxxxx xxxxx

In Krishan Kumar Malik Vs. State of Haryana, the Hon''ble Supreme Court observed as follows:

Now, after the incorporation of Section 53(A) in the Criminal Procedure Code, w.e.f. 23.06.2006, brought to our notice by learned Counsel for the Respondent-State, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific provision in the Cr.P.C. prosecution could have still resorted to this procedure of getting the DNA test or analysis and matching of semen of the Appellant with that found on the undergarments of the prosecutrix to make it a foolproof case, but they did not do so, thus they must face the consequences.

In the instant case, the seized underwear of the deceased was not sent for serological examination or for DNA test nor sample of semen of the appellant was sent for DNA test to analyse and match semen of the appellant with that found on the underwear of the deceased to make it a foolproof case. Therefore, merely seizure of underwear of the deceased and presence of human spermatozoa thereon is not sufficient to connect the appellant with the crime in question.

The evidence of extra judicial confession, memorandum statement of the appellant and recovery of underwear of the deceased at the instance of the appellant are not of conclusive nature and tendency. The circumstances are capable of being explained, and the chain of circumstantial evidence is also not complete.

Thus, looking to the matter from all angles, we are of the considered opinion that the conviction of the appellant cannot be upheld. In the result, the appeal is allowed. The conviction and sentence awarded to the appellant are hereby set aside. The appellant is acquitted of the charges framed against him. He be set at liberty forthwith, if not required in any other case.