Surendra Prasad Singh vs State of Bihar

N.P. Siagh, J.—The appellant Surendra Mahto along with three other accuseds were tried on the charge, u/s 302/34 and Section 201 of the Indian Penal Code for committing the murder of his wife. The trial Court acquitted the other accused but convicted the appellant u/s 302/201 of the Indian Penal Code and sentenced him to undergo R.I. for life u/s 302 and R.I. for even years u/s 201 of the Indian Penal Code. The Sentences have been, however, ordered to run concurrently.

Briefly, stated the prosecution case is that on 23-1-1986 Bhola Mahto, P.W. 7 submitted a written report before the officer-in-charge Hatnaut P.S. stating therein that his daughter Shyama Devi was married with the appellant about live years ago and her second marriage was performed a year back. After the second marriage his daughter Shyama Devi complained him that the appellant had theatened to kill her and marry another girl if Radio and Wrist Watch and other articles were not given to his in-laws. Some how, he fulfilled the demand of Radio and a Wrist Watch. Therefore, they made demand of a Fan but he could not fulfill this demand of her in-laws.

On 16-1-1986 the appellant came to his house and enquired whether Shyama had come there. He told that his wife Shyama was missing from the house since last 15 lays. He stayed there in the night and went away in the morning. On 18-1-1986 his Samdhi Ragho Mahto, father of the appellant came to his house and enquired whether appellant had come there. He become suspicious and apprehensive of some untoward incident with daughter. He insisted Ragho Mahto in his house and pressed him to disclole the truth whereupon Ragho Mahto disclosed that bis daughter had been killed and her dead body had been buried under a kothi in the southern room of his house.

On the basis of the written report, police registered a case and took up investigation. On 23-1-1986 P.W. 4 Vijay Kumar Yadav, Investigating Officer, visited the house of the appellant and recovered the dead body from the southern room which was buried under a kothi. After the investigation and charge sheet, cognizance of the offence was taken and the case was committed to the Court of Session for trial of the accused persons.

The accused pleaded not guilty to the charges and claimed to be tried. The defence was that they were innocent and had committed no offence. Their further defence was that the deceased had committed suicide.

The prosecution examined in all 10 P.Ws. in support of the case, out of whom P.W. 1 Ram Praksh Singh and P.W. 2 Indradeo Prasad. Prasad, have turned hosile and not supported the prosecution case. P.W. 3 Lakhan Prasad Singh has not supported the prosecution case and his evidence is of no help to the prosecution case. P.W. 4 Vijay Kumar Yadav is Investigating Officer in this case. P.W, 5 Yogendra and P.W. 6 Raghubansh Mahto are the brothers of the informant. P.W. 7 Bhola Mahto is informant himself. P.W. 8 Bal Birendra is nephew of the informant. P.W. 9 Yashmati has been tendered. P.W. 10 Ashok Kumar is a formal witness. He has proved post mortem examination report (Ext. 5).

There is no direct or circumstantial evidence to prove the complicity of the appellant in the commission of alleged offence save and except that the extra-judicial confession of Ragho Mahto, father of the appellant leading to the recovery of the dead body of the deceased.

The only point for consideration in this appeal is whether the appellant could be convicted on the extra-judicial confession of bit father Ragho Mahto.

Before discussing the admissibility of the extra-Judicial confession of Ragho Mahto in evidence against the appellant, it would be relevant to discuss the evidence of the material P.Ws. examined by the prosecution in this case. P.W.7 Bhola Mahto, father of the deceased and informant of this case deposed that on 16-1-1986 the appellant, his son-in-law came to his house and enquired from him and his family members whether his wife Shyama had come there. He told that she was missing from the house since about a fortnight. He stayed there in the night and went away in the next morning. Thercafter his Samdhi Ragho Mahto, father of the appellant came to his house and enquired from him about his son Surendra Mahto. Then he became suspicious and pressed his Samdhi to disclose the truth, whereupon his Samdhi Ragho Mahto made a starting disclosure and confeased that they had committed the murder of his daughter Shyama and had buried her dead body in his house under a kothi. Thereafter, he went to the police station and lodged information on the basis of which the police went to the place of occurrence and recovered the dead body of his daughter.

In his cross-examination at paragraph 9 he has stated there was cordial relation between his daughter and the appellant. The appellant used to visit his house. In paragraph 10 he has stated that the demands were made by the family member of her in-laws.

P.W. 8 was Bal Birendra Prasad has stated that the deceased was his litter. On 16-1-1986 the appellant had come to his house in the search of his wife. He stayed in the night and went away in the next morning. Thereafter father of the appellant came and enquired about the appellant. When he threatened to disclose the truth the father of the appellant confessed that the appellant had committed the murder of his wife and buried her dead body under a kothi.

P.Ws. 5 and 6 are the brother of the informant. They have corroborated the evidence of informant Bhola Mahto, P.W. 7 on the point of extra-judicial confession made by Ragho Mahto. There is nothing in the evidence of P.Ws. 5, 6, 7 and 8 that the appellant had ever ill-treated hit wife or ever demanded anything in dowry. Whatever was demanded, the demand was made by Ragho Mahto and other family members of the home.

The prosecution has also not led any evidence that this appellant was at his home during the period when the deceased was murdered rather it has come in the evidence of P.W. 8 that the appellant was a private tutor at Hilsa, 40 K.M. away from his house. The complicity of the appellant in the commission of alleged offence if therefore not proved from the evidence of P.Ws. 5, 6, 7 and 8 who are the material witnesses in this case.

As regards, the extra-judicial confession made by Ragho Mahto, father of the appellant, before the informant and his family members is concerned. it is evident from the evidence of P.Ws. 5, 6, 7 and 8 that Ragho Mahto had confined his guilt under threat and coercion. The confession was not voluntary rather that was made under threat and coercion. Section 24 of the Indian Evidence Act lay down that a confession caused by inducement, threat or promise is irrelevant in criminal proceeding. The confession made by Ragho Mahto is, therefore, not admissible in evidence. Moreover, it is nettled that confession of a co-accused is very weak type evidence. It docs not come within the definition of "evidence" contained in Section 3 of the Evidence Act.

As regards the statement of Ragho Mahto leading to the recovery of the dead body of the deceased is concerned, the Calcutta High Court in (be case of Satish Chandra Seal and Others Vs. Emperor, has held that the statement admissible u/s 27 of the Indian Evidence Act are not admissible against person other than maker of the statement. It is thus evident that the statement made by Ragho Mahto leading to the recovery of the dead body cannot be used against the appellant.

For the reasons aforementioned, the conviction and sentence of the appellant cannot be sustained in law. Accordingly, they are set aside and in the result this appeal is allowed. The appellant is set liberty forthwith, if not wanted in any other case.