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Judgment
Heard Ms. Arti Tewari, learned counsel for the appellant and Sri R.S. Dwivedi, learned AGA for the State and perused the record.
Instant criminal appeal under Section 374(2) Cr.P.C. has been preferred against the judgment and order dated 23.11.2017 passed by the learned Additional Sessions Judge, Court No. 4, Bahraich, in Sessions Trial No. 489 of 1997, State v. Sambhar Chai and others, arising out of Crime No. 31 of 1997, under Sections 120-B, 302 and 201 I.P.C., Police Station Huzurpur, District Bahraich, whereby the appellant has been convicted under Section 302 I.P.C. and sentenced to life imprisonment with a fine of Rs.20,000/-, and in default of payment of fine, to undergo further simple imprisonment for two years. The appellant has also been convicted under Section 201 I.P.C. and sentenced to three years' rigorous imprisonment with a fine of Rs.2,000/-, and in default of payment of fine, to undergo further simple imprisonment for three months. All the sentences have been directed to run concurrently.
The factual matrix relevant for the present appeal is that the informant lodged an FIR on the basis of written report bearing dated 19/03/1997 at Police Station Huzoorpur, District Bahraich on 19.03.2017 at 10:30 AM while Case Crime No.31 of 1997, under Sections 302, 201 and 120-B IPC against accused Magan Pal, Ram Uggar, Ramkaran Yadav (Pradhan) and Ramchander with allegation that he had filed a missing report on 07/03/1997 at Police Station regarding missing of his maternal uncle Rambahore had gone missing. On 19/03/1997 one Budhisagar, resident of Chak Pihani, Police Station Kaisarganj, visited him in the morning and told him that in the last night, at around 8-9 PM, Sambhar Chai came to him and stated with heavy heart that he committed a big mistake and to suggest him what to do. When he inquired about the matter, he told that he committed an undesirable act at the behest of Gram Pradhan Ramkaran Yadav of Village Siraula. He got into trouble in the past also due to him and again he has committed a wrong. Now, he will not be safe. Ramkaran had earlier got a sale deed executed of the land of Ram Uggar and others without any consideration and now got him killed by instigating him and others. He also told that on 20/02/1997 Rambahore moved from his home for taking a witness to Kaisarganj court. Sambhar was sitting before the bonfire at the door of Ramkaran where he was talking to Ramchandra and Maganpal. It was 8:30 PM. Ram Uggar came there and told that the work of Rambahore was not done and tomorrow is date fixed and he is going there, whereupon Ramkaran told him that kill him today and asked Maganpal to take Sambhar and Ram Uggar with him. Thereupon Maganpal got him sit on motorcycle together with Ram Uggar and followed Rambahore. He drove him upto near Bheriyari pool and pressed his neck by Gamcha (thin cotton towel). Rambahore died on spot. They left dead body there and they came to Ram Karan asked Maganpal to carry the dead body by keeping it on a trolley and take him to the sand of river and bury it. Ram Uggar also called his brother Ramchander and four persons to carry the dead body by tractor and trolley and buried it under the sand. Sambhar Chai asked Budhisagar that these facts have come to the knowledge of the police and pleaded for his help. Budhisagar also told the informant whatever was in his knowledge, he told him and asked him to do the needful and to do what he wishes to do. The informant stated that now he believed that his maternal uncle was killed by Ram Karan in premeditated manner through his brother Maganpal, Ram uggar, Sambar Chai and Ramchander and got the dead body concealed.
In Chik FIR, the time of occurrence is shown as 20.02.1997 at 10:30 PM, whereas the FIR was lodged on 19.03.1997 at 10:30 AM. The police carried out inquest of the dead body of the Rambahore on 20.03.1997 between 7.30 AM to 10:30 AM at place where the dead body of the deceased, Rambahore, was recovered on the pointing out of accused Sambhar Chai and Maganpal. In inquest, it was found that the neck of the deceased was pressed by a thin cotton towel as it was apparently a case of murder. The dead body was sent for postmortem examination. Postmortem of the deceased was conducted on 20.03.1997 at 3:30 PM in which proximate time of death was found about four weeks prior to the postmortem. The dead body was in the state of decomposition. One ante-mortem contusion was found on left side of neck. In the opinion of doctor, the cause of death was asphyxia as a result of "ante-mortem throttling". On 20.03.1997 at the instance of arrested accused Magan Pal, the Investigating Officer recovered one spade which was allegedly used in burial of dead body of Rambahore. The Investigating Officer carried out spot inspection where the dead body of the deceased was found to be buried and later on retrieved, prepared the site plan thereof. He recorded statements of witnesses of fact and formal witnesses and after finding complicity of accused persons in the offense, submitted chargesheet against the appellant, Sambhar Chai and co-accused, Magan Pal Yadav, Ram Karan Yadav, Ram Uggar and Ramchander for their prosecution for charge under section 302, 201 and 120-B. Learned Magistrate took cognizance of the offense on the basis of chargesheet and committed the case to the court of Session for trial on 24.11.1997. Learned trial court framed charges against chargesheeted accused persons under Section 120-B, 302/120-B and 201 IPC on commencement of trial. They pleaded not guilty, denied the charges and claimed to be tried.
The prosecution, in order to substantiate its case, examined as many as seven witnesses. PW-1 Jaleel, son of Himamee, was examined as an acquaintance of the deceased. PW-2 Chand Ali was examined as a witness to the recovery memo of the dead body. PW-3 Nankau was examined as a witness to the recovery of the dead body of the deceased, namely, Rambahore. PW-4 Dr. J.N. Mishra conducted the post-mortem examination on the dead body of the deceased and proved the medical evidence relating thereto. PW-5 Ram Aaddhar, the informant, was examined to prove the prosecution version and the lodging of the first information report. PW-6 Buddhisagar Mishra was examined as a witness of the alleged extra-judicial confession made by the accused, Sambhar Chai. PW-7 Head Constable Paras Nath Tiwari was examined as the scribe/author of the Chik FIR and the relevant extracts of the General Diary pertaining to the registration of the case.
Learned trial judge recorded statements of accused persons under Section 313 CrPC after conclusion of prosecution evidence in which they have not taken any specific defence and stated that the witnesses have deposed against them falsely. The case was wrongly instituted and prosecuted against them. They did not tender any defense evidence. Their defense is of denial.
Learned trial court, after hearing submissions of learned counsel for the accused appellants and learned Assistant District Go1. Heard Ms. Arti Tewari, learned counsel for the appellant and Sri R.S. Dwivedi, learned AGA for the State and perused the record.vernment Counsel (Criminal) and learned Private Counsel for the complainant and on perusal of evidence on record, placed reliance on extra judicial confession allegedly made by the accused, Sambhar Chai before PW-6 (Buddhisagar) added with the fact that on pointing out of accused Sambhar Chai and Maganpal, the dead body of deceased Rambahore was dug out from the agricultural field of Triveni Prasad and it is on his pointing out, clothes of the deceased were recovered.
Accused Magan Pal died during trial. Therefore, the trial was abated against him.
Learned trial court after appreciation of evidence on record came to the conclusion that the prosecution has successfully proved the guilt of the accused Sambhar Chai to the hilt and beyond reasonable doubt. However, the trial court was of the opinion that the prosecution has failed to prove the charges against accused Ram Uggar, Ram Karan and Ramchandra @ Baur beyond reasonable doubt. Therefore, they were acquitted from all the charges on being extended benefit of doubt and trial court convicted the appellant Sambhar Chai for offence under Sections 302 and 201 IPC and sentenced him to imprisonment for life and fine of Rs.20,000/- for charge under Section 302 IPC and three years rigorous imprisonment and Rs.2000/- for charge under Section 201 and sentence of fine is coupled with default stipulation.
Learned counsel for the appellant submitted that the FIR is delayed by 26 days and is based on statements of PW-6 Buddhisagar, who is himself not an eyewitness and has given an account of alleged extra judicial confession made by the appellant to him after one month of the alleged incident of homicidal death of Pandit Rambahore, the deceased. Inasmuch as PW-6 is interested witness and stranger to the appellant. He is resident of another village which is situated 12 to 14 kilometres away from the village of the appellant. He was not acquainted with the appellant prior to the incident. Therefore, there was no occasion for the appellant to make any extra judicial confession to him. PW-6 is not an influential person in whom the appellant could repose confidence and make a confession to him with object to get himself saved from the fall out of the alleged criminal act. The appellant and co-accused Maganpal were arrested after lodging of the FIR.
He next submitted that according to the prosecution case, the appellant and co-accused Maganpal were arrested by the police prior to the recovery of the dead body and clothes of the deceased. The said recoveries were effected on 20.03.1997 allegedly at the instance of the appellant and co-accused from an open place which was accessible to one and all and the independent witnesses, who joined the Panchanama, turned hostile. The recovery memo of the dead body is not available.
He further submitted that the postmortem of the dead body of Rambahore was conducted on 20.03.1997 at 3:30 PM in which a contusion of dimension 3cm x 2cm was found on left and right side of neck, 5cm below right ear and 4cm below left ear. There is some cutting also in the column of anti-mortem injuries. The cause of death as shown in postmortem report is "asphyxia as a result of throttling". PW-4 Dr. J.N. Mishra stated that the body was in the state of decomposition. No independent witness was enjoined. In recovery memo of clothes of the deceased allegedly at the instance of the appellant and the co-accused, the informant Ram Adhar and the interested witnesses Sri Narayan Mishra and Budhisagar are enjoined as witnesses of recovery memo (Ex. Ka2).
Learned counsel for the appellant next submitted that no report of Forensic Science Laboratory was brought on record with regard to the clothes of the deceased. Therefore, it cannot be held that the recovered clothes actually belonged to the deceased. Learned trial court has convicted and sentenced the appellant against the weight of evidence on record. Learned trial court has failed to appreciate the evidence in right perspective. Public witnesses of recovery PW-1, PW-3 turned hostile during examination in chief. Hence, the extra judicial confession of the appellant set up by the prosecution, wherein reliance has been placed by the trial court, finds no corroboration with any corroborative evidence. It is settled law that the extra judicial confession is a weak piece of evidence. This is an admitted case that there is no eyewitness account of killing of the deceased. There is no plausible evidence to connect the appellant with the alleged offenses. Even recovery of dead body in the manner and mode alleged by the prosecution does not find support from the evidence of PW-4, Dr. J.N. Mishra, who found no mud or soil over the body of the deceased and stated that it was completely in the process of decomposition. There are major contradictions in the statements of witnesses. Therefore, no reliance can be placed thereon. The appellant has been convicted and sentenced by the trial court only on the basis of suspicion which is not permissible under law. The First Information Report in the case has been lodged after an inordinate delay of one month which finds no plausible explanation. As a matter of fact, the appellant has neither made any confession to PW-6 Buddhisagar Mishra nor before the Investigating Officer. No recovery was effected on his pointing out. P.W.-5, the informant, has stated in his evidence that he was informed by police about discovery of dead body.
Learned counsel for the appellant lastly submitted that Investigating Officer who has important witness of the case was not examined during trial and the documents prepared by him during investigation were proved by PW-7, Head Constable, Parathnath Tiwari, a formal witness by secondary evidence. On perusal of statements of PW-5, Ram Adhar (informant) during cross-examination creates grave doubts in prosecution version. PW-5 Ramadhar had a clear motive to falsely implicate the appellant as the appellant has filed certified copy of the plaint of Original Suit No.106 of 1998. Ramadhar vs. Puttu and others from the list of papers on 20.01.2017 has also been filed, a copy of judgment dated 08/05/1998 in said suit. Thus, PW-5 had motive to falsely implicate the appellant for murder of his maternal uncle. The co-accused Maganpal died during trial and other co-accused were acquitted by the trial court on giving benefit of doubt. PW-6 is a close relative of the informant and no reliance could be placed on his evidence.
Per contra, learned AGA has submitted that the case is based on circumstantial evidence. This is an admitted fact that there is no eyewitness account of the unfortunate and homicidal death of deceased Rambahore. However, the prosecution has successfully proved the case against whom there is evidence of extra judicial confession which has been duly proved by PW-6 Buddhisagar Mishra and on his pointing out the dead body of the deceased and his clothes were recovered from a field where the same was buried about two and a half feet beneath the surface as this was a fact which could only be in the knowledge of the appellant and said co-accused. There is no factual and legal error in appreciation of evidence by learned trial court. The appellant has rightly been convicted and sentenced by the learned trial court and the appeal deserves to be dismissed.
Learned counsel for the appellant placed reliance on a judgment of Supreme Court in Ramu Appa Mahapatar vs. The State of Maharashtra reported in (2025) 2 SCR 388, wherein it is held in para 16 and 17 which are reproduced as under:
“16.Extra-judicial confession of an offence made by the accused before a witness is one of the several instances of circumstantial evidence; there are other circumstances, such as, the theory of last seen together; conduct of the accused before or immediately after the incident; human blood being found on the clothes or person of the accused which matches with that of the accused; leading to discovery, recovery of weapon etc. As we know, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together, they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. The chain must be complete and each fact forming part of the chain must be proved. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, 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. The circumstances would not only have to be proved beyond reasonable doubt, those would also have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. All these circumstances should be complete and there should be no gap left in the chain of evidence. The proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. The circumstances taken cumulatively must be 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. While there is no doubt that conviction can be based solely on circumstantial evidence but great care must be taken in evaluating circumstantial evidence. If the evidence relied upon is reasonably capable of two inferences, the one in favour of the accused must be accepted.
17.In State of Rajasthan Vs. Raja Ram, this Court explained the concept of extra-judicial confession. Confession may be divided into two classes i.e. judicial and extra-judicial. Judicial confessions are those which are made before a magistrate or a court in the course of judicial proceedings. Extra-judicial confessions are those which are made by the party elsewhere than before a magistrate or a court. Extra-judicial confessions are (2003) 8 SCC 180 generally those that are made by a party before a private individual who may be a judicial officer also in his private capacity. As to extra-judicial confessions, two questions arise: firstly, whether they are made voluntarily and secondly, are they true? If the court is of the opinion that the confession was not made voluntarily but was a result of an inducement, threat or promise, it would not be acted upon. It follows that a confession would be voluntary if it is made by the accused in a fit state of mind and if it is not caused by any inducement, threat or promise having reference to the charge against him proceeding from a person in authority. Whet1. Heard Ms. Arti Tewari, learned counsel for the appellant and Sri R.S. Dwivedi, learned AGA for the State and perused the record.her or not the confession was voluntary would depend upon the facts and circumstances of each case judged in the light of Section 24 of the Indian Evidence Act, 1872 (briefly ‘the Evidence Act’ hereinafter). The law is clear that a confession cannot be used against an accused person unless the court is satisfied that it was voluntary. At that stage, the question whether it is true or false does not arise. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity and voluntariness of the confession, the court may refuse to act upon the confession even if it is admissible in evidence. The question whether a confession is voluntary or not is always a question of fact. A free and voluntary confession is deserving of the highest credit because it is presumed to flow from the highest sense of guilt.
17.1.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 reliability of the witness to whom it is made and who gives the evidence. Extra-judicial confession can be relied upon and conviction can be based thereon if the evidence about the confession comes from a witness 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 by the witness should be clear, unambiguous and unmistakenly convey that the accused is the perpetrator of the crime and that 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.
17.2.If the evidence relating to extra-judicial confession is found credible after being tested on the touchstone of credibility and acceptability, it can solely form the basis of conviction. The requirement of corroboration is a matter of prudence and not an invariable rule of law."
Learned counsel for the appellant also cited Modi's "A Texbook of Medical Jurisprudence and Toxicology", wherein it is stated that rigor mortis first appears in the involuntary muscles, and then in the voluntary muscles. In the voluntary muscles, rigor mortis follows a definite course. It first occurs in the muscles of the eyelids, next in the muscles of the back of the neck and lower jaw, then in the those of the front of the neck, face, chest and upper extremities, and lastly extends downwards to the muscles of the abdomen and lower extremities. Last to be affected are the small muscles of the fingers and toes. It passes off in the same sequence. The time of Onset varies greatly in different cases, but the average period of its onset may be regarded as three to six hours after death in temperate climates, and it may take two to three hours to develop. In India, it usually commences in one to two hours after death.
In temperate regions, rigor mortis usually lasts for two to three days. In northern India, the usual duration of rigor mortis is 24 to 48 hours in winter and 18 to 36 hours in summer. When rigor mortis sets in early, it passes off quickly and vice versa. In general, rigor mortis sets in one to two hours after death, is well developed from head to foot in about 12 hours. The onset and disappearance of rigor mortis also depends on manner of death and atmospheric conditions.
Putrefaction or Decomposition and Autolysis is a certain sign of death. It is a slow process and consists of softening and liquefaction brought abut by the digestive action of enzymes, released after death from tissue cells. This autolysis can occur even in sterile conditions, such as seen in a macerated dead foetus. Also, ferments are produced by living saprophytic micro-organisms, which resolve the complex organized tissues of the body into simpler, inorganic compounds. The two characteristic features of Putrefaction are (i) the colour changes and (ii) the development of foul-smelling gases.
We have re-appreciated the evidence appearing on record in the light of submissions of learned counsel for the parties. PW-1 Jaleel has stated that the deceased Rambahore Pandit, the resident of District Gonda was issue-less. His wife was no more. He disposed of his immovable property lying in district Gonda and started residing at village Tiwari-Ka-Purwa (District Bahraich) after purchasing some property he would reside with Jagat Prasad (informant). He expressed his ignorance about the fact that Jagat Prasad executed some sale deed or Will-deed in favour of Rambahore regarding his 7 bigha agricultural land. He also showed his unawareness regarding any litigation between the deceased Ram Bahore and the accused Ram Uggar with regard to the said land. This witness was declared hostile and in cross-examination by prosecution, he stated that Investigating Officer did not record his statement. PW-2 Chand Ali has also not supported the prosecution case and has stated that in inquest report, the sub-inspector had taken his signature at police station by calling him there. Neither the dead body nor the clothes of the deceased were recovered by the police on pointing out of the appellant Sambhar Chai and Magan Pal in his presence. This witness was also declared hostile by the prosecution and in cross-examination by prosecution that he stated that he had not given any statement to Investigating Officer. PW-3 Nankau has stated that no recovery of dead body of deceased Ram Bahore or his clothes were effected by the police in his presence on pointing out of accused Sambhar Chai and Magan Pal. Although he acknowledged his signature on inquest report but stated that Sub-inspector called him at police station and got his signatures on inquest report. This witness was also declared hostile and on being cross-examined by prosecution he disowned the statement under Section 161 CrPC recorded during investigation.
PW-4 Dr. J.N. Mishra, is the author of the post-mortem report of the deceased who stated that he conducted post-mortem examination on the dead body of the deceased on 20.03.1997 at District Hospital Bahraich. The dead body was identified by two constables of police station Hujurpur who brought it for post-mortem.
External examination, condition of body
The deceased was about 50 years of age. Duration since death was about 4 weeks. He was middle aged man. The condition of body was in stage of decomposition. Foul smell was coming. Skin peeled out at places, hair loosed and detached. Eye lips were gone (decomposed), abdomen distended. Skin of feet comes off.
Anti-mortem injuries:
Contusion 3 cm x 2 cm on left and right side of neck, 5 cm below right ear and 4 cm below left ear. Larynges and trachea were congested. Both corner of hyoid bone were fractured. The cause of death was asphyxia due to antemortem throttling.
P.W.-4, proves in the postmortem report, being in his handwriting and signatures as Ex.Ka-1. In, cross examination, he stated that one week margin is possible in approximate time of death stated in postmortem report, no mud or soil was found on dead body at the time of the post-mortem as no such things stated by him in post-mortem report. The dead body was completely in the process of decomposition.
PW-5, Ram Adhar, is informant in the case, who has reiterated his F.I.R. version in examination-in-chief. He stated that he lodged a missing report at police station concerned as deceased, Ram Bahore, had gone missing. He stated that he got written, report, Ex.ka-1 subscribed by, Shiv Adhar on the basis of information disseminated to him by Buddhisagar, P.W.-6, on 19.03.1997, in which he described the facts mentioned by the appellant Sambar Chai to him regarding mode and manners of causing of death of Rambahore by him and co-accused Maganpal, Ramkaran, Ram Uggar, Ramchandra alias Baur. The witness stated that Sub-inspector recovered clothes of the deceased from the sand near the river bank on the pointing out of the appellant and the co-accused Maganpal in his presence. The clothes were taken into possession by Sub-inspector and were sealed. He prepared its recovery memo on which Ex.Ka.2 was marked. He also acknowledged his signature on inquest report, Ex.Ka-3. prepared by the Investigating Officer, stated that the Sub-inspector retrieved the dead body of Rambahore beneath 2.5 ft. of the soil by digging out the sand on the pointing out of the appellant and the co-accused Maganpal.
P.W.-6 Buddhisagar Mishra is the star witness of the case who has acknowledged his signatures on inquest report, Ex.Ka.-2, the recovery memo of clothes of the deceased dated 20.03.1997 Ex.Ka-3 and Ka-12. The witness has stated that he was acquainted with the deceased Rambahore, who was issueless. He would reside with Jagat Prasad, who pre-deceased Ram Bahore. Jagat Prasad had executed a Will deed in the name of Rambahore and there was a litigation between the deceased and accused Ram Uggar regarding succession of the land bequeathed to Rambahore. He stated that accused Sambhar Chai came to his home and told that he committed a big mistake at behest of Ramkaran and in the night of 20.02.1997, he along with Ramchandra, Ram Uggar, Maganpal, Ramchandra alias Baur committed murder of Rambahore on instructions of Ramkaran and buried the dead body under sand near river bank. On getting this information from the appellant, he visited Ram Adhar (informant) and told him about this, whereupon Ram Adhar got the report lodged by the police. He acknowledged the statements recorded under Section 161 Cr.P.C. recorded by the Investigating Officer. He also stated that Sub-Inspector called him at river bank where dead body was buried. Sambhar Chai was also present there. He pointed out the place where the dead body was buried, whereupon the police personnel dug out the dead body and its documentation was done on the spot. Inquest report was prepared in his presence. The recovery memo of clothes of the deceased (Ex.Ka-3 ) which were dug out on the pointing out of Sambhar Chai bears his signature also. The dead body was sent for post-mortem in his presence. In cross-examination the witness stated that Ex.Ka-2 (Inquest report), recovery memo of clothes worn by the deceased, Ex. Ka2 and inquest report (Ex.Ka-2) were signed by him and Ram Adhar simultaneously. After signing these papers, Ram Adhar and witness came back to home. He did not visit post-mortem house next day. Ram Adhar and his family members had gone to Bahraich for post-mortem of dead body of deceased Rambahore. Ramdhar is his brother-in-law (wife’s brother). He stayed at the place of Ram Adhar on the night when the dead body was recovered. He had told about the incident to Ram Adhar, who was stated by Sambhar Chai. Ram Adhar (informant) got the written report Ex.Ka-1, report written report scribed by his brother Shiv Adhar on the basis of information supplied by him. He had no friendship with Sambhar Chai but he is a respectful person. He was not frequent with the police personnel of Police Station Huzurpur. Sambhar Chai resides in village Siraula. He was working in Cooperative Department during the time of the incident. He never visited police station to pursue cause of any accused. The Sub-Inspector had taken his signature on some paper but he is unable to tell the exact numbers of those papers. His statements were taken at police station and he signed some papers. The witness had denied the defense suggestion that he testified falsely on account of being brother-in-law of informant Ram Adhar and at the behest of police and Ram Adhar.
PW-7 Head Constable Parasnath Tiwari has proved the chik FIR and GD entry entries of registration of FIR which were in the writing and signature of constable Head Moharir Adhar Chandra Yadav in his absence by secondary evidence. He stated that the police papers like Letter to RI, Letter CMO, Specimen Seal, Picture of dead body were prepared by Sub Inspector Mathur Yadav in his writing and signatures. Thus, he has also proved the papers prepared by Head Moharir and Sub Inspector, Mathur Yadav at the time of inquest proceedings as Ex.Ka-4 to Ka-10, respectively and has given secondary evidence in their absence.
Head Constable Parasnath Tiwari has also stated that the site plan in the case was prepared by Sub Inspector Mathur Yadav under his writing and signatures on which Ex.Ka-11 is marked. The witness also proved recovery memo of one spade allegedly used in digging the earth to bury the dead body on the pointing out of co-accused Magan Pal, prepared by Sub Inspector Mathur Yadav in his absence on which Ex.Ka-12 was marked. The witness also proved, by his secondary evidence, the charge charge sheet filed by the SI Mohammad Naseem in his writing and signatures. However, in cross-examination he has stated that at the time of preparation of Ex.Ka-4 to Ka-13, he was not posted in district Bahraich. He is not in position to tell as to when these papers were prepared. He could only identify the signature of concerned police officials, but he is not aware of records.
This case is based on circumstantial evidence as this is admitted case that there is no eyewitness of commission of murder of the deceased Rambahore. In leading case Sharad Birdhi Chand Sarda vs State Of Maharashtra (1984) 4 SCC 116, the law relating to circumstantial evidence was crystalized as under:
1)the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully 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 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.
These five principles, if we, may say so constitute the Panchsheel of the proof of a case based on circumstantial evidence. In present case, three circumstances suggested by the prosecution to prove the guilt of the appellant for commission of murder of Rambahore; (i) Extra judicial confession allegedly made by the appellant to P.W.-6 (Budhisagar); (ii) recovery of deadbody of the deceased Rambahore on pointing out of the appellant and co-accused Magan Pal (since deceased); (iii) recovery of cloths of the deceased worn at the time of his murder on pointing out of the appellant and the co-accused under police custody which is treated as discovery evidence under Section 27 of the Evidence Act.
Much emphasis has been laid by the prosecution with regard to extra judicial confession allegedly made by the appellant to witness Budhisagar Mishra (P.W.-6), who passed down this confessional statement to the informant Ram Adhar which becomes basis for lodging of the FIR. In FIR, this confessional statement allegedly made by the appellant to witness Budhisagar Mishra has been mentioned. P.W.-5 Ram Adhar the informant in his sworn testimony before the Court has reiterated his statement in FIR that Budhisagar Mishra met him on 19.03.1997 in the morning and stated that on the last night at around 8-9 p.m. Sambhar Chai met him and confessed that he along with co-accused Magan Pal, Ram Uggar and Ramchandra committed murder of Rambahore on instigation of accused Ram Karan. There was a property dispute between Ram Uggar and the deceased Rambahore. Ram Uggar executed the sale deed of disputed land in favour of Ramkaran. PW-6 (Budhisagar) also supported the statement of PW-1 and his FIR version in his sworn testimony before the court and stated that Sambhar Chai visited him after murder of Rambahore and confessed to him that he along with Ram Uggar, Maganpal, Ramchandar committed murder of Rambahore near Bheriyari pool on instigation of Ramkaran and subsequently the dead body was carried on tractor trolley and buried under the sand near river bank.
However, this fact cannot be lost sight that this witness is real brother-in-law of PW-1 (informant). He is not a person of authority. He has admitted that he had no connection with local police. He did not pursue because of any person at police station. There is no averment of the witness that the appellant was at any point of time on cordial terms with him. In such circumstances, there was no occasion for the appellant to visit the witness after around one month of murder of the deceased and confide in him and to confess his guilt and his complicity in the offence to him and seek his indulgence and help.
The judgment cited above in Ramu Appa Mahapatar (supra), Hon'ble Supreme Court categorically held that extra judicial confession of an offence made by the accused before a witness is weak piece of evidence. Extra-judicial confessions are generally those which are not made before a magistrate or a court but before a private individual who may be a person to whom the prisoner may repose faith and trust. In present case, if we take the averment of PW-6 on its face value as soon the appellant confessed his guilt to him, he visited the informant and disclosed in detail what was told by the appellant to him instead of offering any help to the appellant. In such circumstances, no reliance can be placed on extrajudicial confession allegedly made by the appellant to PW-6, who is the brother-in-law of the informant. Thus, this circumstantial evidence is liable to be discarded on facts of the case in respect of the appellant.
The prosecution has proposed strong circumstance against the appellant. In present case, the recovery of dead body of the deceased on 20/03/1997 on pointing out of the appellant and co-accused Maganpal who were in police custody at that time. This is a discovery evidence and it is stated on behalf of the prosecution that this fact was within special knowledge of the appellant because the dead body was not found in a open place but it was buried 2.5 feet beneath the earth near the bank of river and it was dug out on pointing out of the appellant and co-accused. But this fact is noticeable that no recovery memo was prepared of recovery of dead body by the Investigating Officer and therefore, this fact could also not be proved duly. The Investigating Officer did not appear in witness box. His whereabouts could not be brought on record at the time of recording of the prosecution evidence and papers prepared by him were proved by secondary evidence by a constable who stated that he was conversant with his signature and writing. In absence of evidence of investigating officer, the disclosure statement of the accused which found basis of recovery of dead body could not be proved in the manner provided under Section 27 of the Evidence Act.
We are not oblivious of legal position that the prosecution case cannot fail only on ground that Investigating Officer was not produced during trial but this fact cannot be lost sight that the Investigating Officer is an important witness in a sessions trial. In law, it is well settled that the more serious the crime is stricter the proof is needed. The courts require a higher degree of certainty, scrutiny and a tighter chain of evidence before handing down heavy punishment, ensuring no innocent person is wrongly convicted and punished severely. In other words, the more serious the offense, the stricter the degree of proof. Inasmuch as P.W. 5 Ram Adhar who is first informant had stated that he got the FIR scribed by Shiv Adhar on the basis of information received from Budhisagar. He has signed some papers at Police Station. When dead body was recovered, nobody came to call him. He himself visited the Police Station. The Police Constable had visited him at his home and gave him information about finding of dead body. The constable stated that dead body of Rambahore had been found at that time, his brother-in-law Buddhisagar was also present at the home. Thereafter, he went to place along with a number of persons where Sub Inspector had told that the dead body was found. The police constable visited his home at around 10-11 hours. The deceased was his real maternal uncle who would reside at the place of Jag Prasad who was real uncle. Bahore was litigating regarding property of Jag Prasad on the basis of Will. The land of Jag Prasad was recorded in the name of Ram Uggar and Ramchander on the basis of succession and Ram Uggar had executed a sale deed of said land in the name of accused Ramkaran six months prior to the incident. Thus, on the basis of aforesaid statement of PW-1 (the informant), it is obvious that when the dead body of Rambahore was recovered by police, neither the informant nor Budhisagar were present there. Thus, in absence of evidence of Investigating Officer, there is no plausible evidence in support of the case that the dead body was retrieved on pointing out of the appellant and the co-accused.
The third circumstance suggested by the prosecution against the appellant is that on pointing out of the appellant and the co-accused under police custody, clothes worn by the deceased were recovered which were buried under sand near the place where the dead body of the deceased was retrieved. But the independent witnesses, namely, PW-2 (Chand Ali) and PW-3 (Nankau) have not supported this version in their sworn testimony before the court. They have stated that neither the dead body of Rambahore nor his clothes were recovered by the police on pointing out of the appellant in their presence. Thus, even if the evidence of prosecution regarding recovery of clothes of the deceased is found to be proved by the evidence laid by the prosecution, this singular fact cannot complete the chain of circumstantial evidence proposed against the appellant. It is also noticeable that in cases of circumstantial evidence, motive plays an important role. But in present case, no motive has been introduced against the appellant for committing murder of the deceased. He is resident of other village. The motive was specifically attributed against the co-accused, namely, Ramkaran, Ramchandra and Ram Uggar. But these accused were acquitted by the trial court along with Maganpal. Out of whom, Maganpal died during trial and three accused persons were acquitted on being given benefit of doubt by the trial court. There is no State Appeal or appeal by aggrieved person regarding judgment of acquittal of co-accused persons. Only this fact has emerged in alleged confessional statement of the appellant made to PW-6 on instigation of Ramkaran, he joined co-accused persons and committed murder of Rambahore as said extra-judicial confessional has not been found reliable on the basis of foregoing discussions, it can be said safely that the appellant had no motive to commit murder of the deceased.
In view of the aforesaid discussions, we are of the considered opinion that the case is based on circumstantial evidence as there is no eyewitness account of commission of murder of deceased Rambahore. The dead body was recovered after one month of the incident. The case of extra-judicial confession taken by the prosecution, has not been found reliable, The recoveries are also not duly proved by the prosecution. Chik FIR, GD entries, chargesheet, site plan, GD entries of registration of case, recoveries are proved by secondary evidence of a police constable instead of producing their author as a witness and appellant was deprived of opportunity to cross examine the authors of these police documents regarding contents of the papers prepared by them. The prosecution case is not found to be proved beyond reasonable doubt. Leaned Trial Court committed factual and legal error while recording conviction of the appellant and sentencing him for said offence. Thus, the judgment under appeal is not sustainable and deserves to be set aside.
The appeal is allowed. The impugned judgement and order passed against the appellant whereby, he has been convicted and sentenced for offences under Sections 302 and 201 IPC by judgment under appeal is set aside.
The appellant is directed to be released from custody immediately if he is not held in jail custody in some other case and necessary release order shall be issued by learned trial court. The appellant is directed to execute a personal bond and two securities each in the like amount within 10 days under Section 437-A Cr.P.C. to the satisfaction of learned trial court with undertaking to appear before appellate court, if any appeal is preferred against this judgment and order, the Bail bonds shall remain in force for six months.