Madhya Pradesh High Court
Vijay Valmik vs State Of M.P. on 21 December, 2017
Bench: Anand Pathak, G.S. Ahluwalia
1 Criminal Appeal No.658 of 2006
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH
PRESENT:
HON'BLE MR. JUSTICE ANAND PATHAK
&
HON'BLE MR. JUSTICE G.S. AHLUWALIA
CRIMINAL APPEAL NO.658 OF 2006
Vijay Balmeek
-Vs-
State of M.P.
________________________________________________
Shri A.K. Jain, Counsel for the appellant.
Shri Prakhar Dhengula, Public Prosecutor for the
respondent/State.
________________________________________________
Date of hearing : 16.12.2017
Date of Judgment : 21/12/2017
Whether approved for reporting : Yes
JUDGMENT
( 21/ 12 / 2017 ) PER JUSTICE G.S. AHLUWALIA:
1. This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 20-7-
2006 passed by Special Judge (M.P.D.V.P.K. Act), Gwalior in Special Sessions Trial No. 114/2004 by which the appellant has been convicted under Sections 302/34 and has been sentenced to undergo the Life Sentence and a fine of Rs. 500/-, under Section 394,397 of I.P.C. read with Section 11/13 of M.P.D.V.P.K. Act and has been sentenced to undergo the rigorous imprisonment of 7 years and fine of Rs. 250/- with default imprisonment, and under Section 307/34 of I.P.C. and 2 Criminal Appeal No.658 of 2006 has been sentenced to undergo the rigorous imprisonment of 7 years and a fine of Rs. 250/- with default imprisonment. The sentences have been directed to run concurrently.
2. The necessary facts for the disposal of the present appeal in short are that the injured Rani, who was admitted in the J.A. Hospital, Gwalior lodged a report on 19-8-2004, to the effect that at about 1 P.M., She was in her house along with her mother, Baijanti Bai. Her father had gone on his duty at Bahodapur Carpet Factory. Her cousin brother Shyam and his friend knocked at the door. The door was opened by her mother Baijanti. They came inside the house and the co- accused Shyam said that he has sustained an injury therefore, he be treated. Gomti bai who is her neighbour and was sitting in the house was asked to bring a medicine and thereafter, the co-accused Shyam locked the door from inside and increased the volume of the T.V. When her mother Baijanti was fomentating, the friend of co-accused Shyam caught hold of Baijanti and co-accused Shyam all of a sudden took out a knife and started assaulting Baijanti on her neck and forehead. After hearing her cries, when She tried to intervene in the matter, She too was assaulted by co-accused Shyam and his friend as a result of which, She sustained multiple injuries. The co-accused Shyam and his friend took out an amount of Rs.70,000/-, gold ornaments from the almirah and also snatched gold earrings from her ears as a result of which, her ears were cut. Yesterday, the co-accused Shyam and his friend had come to their house and at the request of the co-accused Shyam, her mother had served Poha to them. After half an hour, the co-accused Shyam and his friend again came back to the house and said that they have forgot their mobile phone and purse and when her mother Baijanti informed that their mobile and purse is not in the house, then they went back. She would identify the co-accused Shyam and his friend. After 3 Criminal Appeal No.658 of 2006 the incident, She some how came out of the house and started shouting. Her neighbours came on the spot, to whom the entire incident was narrated by her. The police was called who took her to the hospital. As the complainant had sustained injuries on both of her hands, She was unable to sign the F.I.R., therefore, her thumb impression was taken. The F.I.R. was recorded at serial no. "0" and thereafter, it was sent to Police Station Madhoganj. The Police Station Madhoganj registered the offence under Section 394,302, 34 of I.P.C.
3. Just after 4 days of the incident, the co-accused Shyam committed suicide after leaving a detailed suicide note. It appears from the suicide note that the co-accused Shyam was very disturbed with his own act of committing offence. The suicide note was inculpatory in nature and it was also mentioned that for the entire incident, the appellant is responsible. An apology was also tendered by the co-accused Shyam, to his family members.
4. The appellant was arrested. Test Identification Parade was conducted. The appellant was identified by Devisharan (P.W.2), however, the complainant could not identify the appellant. Ornaments were seized from the appellant. They were duly identified. The police after completing the investigation, filed a charge sheet against the appellant and the deceased co-accused Shyam for offence under Sections 302,394,397,34 of I.P.C. read with Section 11/13 of M.P.D.V.P.K. Act.
5. The Trial Court framed charge under Sections 302/34, 394 read with Section 397 of I.P.C. read with Section 13 of M.P.D.V.P.K. Act or in the alternative under Section 307 of I.P.C.
6. The appellant abjured his guilt and pleaded not guilty.
7. The prosecution, in order to prove its case, examined Rani (P.W.1), Devisharan (P.W.2), Laxmandas (P.W.3), Monu 4 Criminal Appeal No.658 of 2006 (P.W.4), Shrilal (P.W.5), Ku. Gomti (P.W.6), R.C. Sharma (P.W.7), Ramprakash Singh Yadav (P.W.8), Gabbar Singh (P.W.9), Jitendra Kumar (P.W.10), Dr.S.S. Jadaun (P.W.11), Rinku Kumar Namdeo (P.W.12), Smt. Neena Gour (P.W.13), Hari Singh (P.W.14), Rajendra Singh (P.W. 15), Radha Kishan (P.W.16), Nasreen (P.W.17), Nareshpuri (P.W.18), Than Singh (P.W.19), Jitendra Singh Gurjar (P.W.20), Rajendra Sharma (P.W.21), K.N.Choubey (P.W.22), M.L. Karere (P.W.23), Dr. J.N. Soni (P.W.24) and Omi Vilgaiya (P.W. 25). The appellant did not examine any witness in his defence.
8. The Trial Court by judgment and sentence dated 20-7- 2006 passed by Special Judge (M.P.D.V.P.K. Act), Gwalior in Special Sessions Trial No. 114/2004 by which the appellant has been convicted under Sections 302/34 and has been sentenced to undergo the Life Sentence and a fine of Rs. 500/-, 394,397 of I.P.C. read with Section 11/13 of M.P.D.V.P.K. Act and has been sentenced to undergo the rigorous imprisonment of 7 years and fine of Rs. 250/- with default imprisonment, and under Section 307/34 of I.P.C. and has been sentenced to undergo the rigorous imprisonment of 7 years and a fine of Rs. 250/- with default imprisonment.
9. Challenging the judgment passed by the Trial Court, it is submitted by the Counsel for the appellant that the prosecution has failed to prove the identity of the appellant beyond reasonable doubt. The Trial Court, itself has given a finding that since, the ornaments were already shown to the witnesses by the police, prior to holding of Test Identification, therefore, the prosecution has failed to prove that the ornaments belonging to the complainant/victim were seized from the possession of the appellant. The Trial Court has also held that the prosecution has failed to prove that the suicide note left by the co-accused Shyam was in his handwriting. Since, Devisharan (P.W.2) has admitted that the appellant was 5 Criminal Appeal No.658 of 2006 shown to him, prior to holding of Test Identification Parade of the accused, therefore, the identification of the appellant loses its effect. As the injured Rani (P.W.1) could not identify the appellant in the T.I.P. Conducted by the police, therefore, identification of appellant by her in the Court, also loses its effect.
10. Per contra, it is submitted by the Counsel for the State that the findings recorded by the Trial Court with regard to suicide note of the co-accused Shyam is defective. In fact the prosecution has proved beyond reasonable doubt that the suicide note was in the handwriting of the co-accused Shyam. The suicide note can be treated as written Extra Judicial Confession and since, the same is inculpatory in nature and the charge sheet was also filed against the co-accused Shyam, after his death, therefore, technically it can be said that the appellant was being jointly tried with the co-accused and therefore, the Extra Judicial Confession of the co-accused in the form of Suicide note was admissible against the appellant under Section 30 of Evidence Act. It is further submitted that the identification in the Court is the substantive piece of evidence and it is not required that the identification in the Court should be preceded by T.I.P. by the Police. Test Identification of the accused, is conducted by the police, in order to ascertain that whether the investigation is moving in correct direction or not?
11. Heard the learned Counsel for the parties.
12. Dr. J.N. Soni (P.W.24) had conducted the Postmortem of the dead body of Baijanti and found the following injuries :
"(i) Cut wound mid and left side of neck 13 cm x 4 cm x 3 cm deep. Trachea and blood vessels and other structures are cut, traversely placed.
(ii) Cut wound 8 cm above Rt. Ear on head 5 x 2 cm calp deep, slicing on rt. Border.
(iii) Incised wound 3 cm anterior to injury no.
2 2 x 1 cm scalp deep 6 Criminal Appeal No.658 of 2006
(iv) Incised wound 9 cm above the nose 1.5 cm x 0.5 cm x scalp deep
(v) cut wound left parietal emminence 6 x 4 cm x scalp deep
(vi) Stab wound 7 cm above left rib, Rt. Side mid clavicular line, 1 x 0.5 cm x 8 cm deep inside the liver.
(vii) Incised wound left forearm upper third laterally 3x0.5 cm muscle deep.
The postmortem report is Ex. 26.
13. Dr.S.S. Jadaun (P.W.11) had examined the injured Rani (P.W.1) and found the following injuries on her body :
"(i) Incised wound on neck 6x1x1 cm
(ii) Incised wound on left side of neck 5x1x1
cm
(iii) Incised wound on right side of neck 6x1x1
cm
(iv) Incised wound on left hand 5x1x1 cm
(v) Incised wound on left hand 4x3x1 cm
(vi) Incised wound on left hand 4x1x5 cm
(vii) Incised wound on right wrist 1x5x5 cm
(viii) Incised wound on right palm 7x1x5 cm
(ix) Incised wound at right side of abdomen 4x1x1 cm."
The cumulative effect of all the injuries was dangerous to life.
The M.L.C. Report of the injured Rani (P.W.1) is P.17.
14. Thus, it is clear that the death of Baijanti bai was homicidal in nature and the cumulative effect of all the injuries sustained by Rani (P.W.1) was dangerous to life.
15. The next question for determination is that whether the appellant was the author of the injuries sustained by the deceased and the injured Rani (P.W.1) or not?
16. The Trial Court has held that the recovery of the ornaments from the possession of the appellant could not be proved beyond reasonable doubt as the ornaments were already shown to the witnesses, prior to holding of Test Identification.
7 Criminal Appeal No.658 of 2006
17. The Trial Court also held that the prosecution has failed to prove beyond reasonable doubt that the suicide note of co- accused Shyam, Ex.P/22, is in the handwriting of the co- accused Shyam, but we are not convinced by the reasons assigned by the Trial Court, therefore, the Counsel for the appellant was asked to argue on the genuineness of the suicide note, Ex.P/22. The arguments of the Counsel for the appellant were heard on the correctness of the suicide note, Ex.P/22 also. It is not out of place to mention once again, that the co-accused Shyam, who was related to the deceased Baijantibai and the injured Rani (P.W.1) committed suicide on 23-8-2004 by consuming poisonous substance. He had also left one suicide note. The suicide note reads as under :
^^esjh iwT;uh; ek¡ eSus tks dqN Hkh fd;k esus ml yMds dgus ij fd;k osls rks esjk ;s xqukg ekQh ds dkfcy ugha gS ysfdu eEeh vki eq>s ekQ dj nks vksj v[kckj esa tks uxnh 70 gtkj : crkbZ xbZ gS oks fcYdqy >wV gS 30 gtkj : dk lksuk ts Hkh fcYdqy >wB gS flQZ gesa dkuks ds Qwy vkSj ckys vksj eaxy lw= Fkk vkSj 700 : uxn Fks vkSj 500 xz pkanh Fkh ftlesa ls lksuk 2700 : esa cspk Fkk ftlesa ls 1700 : esus fy;s ckdh pkanh vkSj uxnh fot; flyseku ds ikl NksM fn;k Fkk vkSj 2 pkdw [kVdsnkj Fks mlds ikl Fks vkSj esa cgqr iNrk jgk gwa vkSj fot; flyseku vksj esa ';ke us fey dj y{eh ckYehd dk dRy ,oa [kwu fd;k ge nksuks us 21-
07-2004 dks cq/kokj dks 2 ct dj 20 feuV ij fd;k Fkk igys rks geus dkyksuh esa tSls gh ge mlds ikl igqaps y{eh njokts ij ewaxQyh [kk jgh Fkh gesa ns[kdj mlus ges vUnj cqykvks geus vUnj cSBs geus ml ikuh ekax rks ikuh feyk fQj fot; us thrw ds ckjs esa iwNk rks y{eh cksyh fd thrw vius ekek ds ikl ¼fot; dk irk yDdM [kkuk iqy nqxkZ dkWyksuh doMh dh nqdku ds cxy esa jke th nkl dk edku½ x;k gS rks fot; us ns[kk fd eksdk vPNk gS vkSj fot; mls idM dj vUnj ys x,s Fks vkSj ewag idM dj pkdw ekj fn;s Fks vkSj fQj gekjs diMs [kwu ls fcxM x;s Fks fQj geus mldk iyax [kksyk vkSj mlesa ls ge nksuks us n'kZu yky ds diMs igu dj y{eh ds ckys vkSj eaxy lw= mrkj fy;s vkSj mldh xSl ij vkyw HkVs dh lCth j[kh Fkh vkSj Åij j[ks nks cDls dks mrkjk mles ls ,d iyh fudkyh vkSj mles vius [kwu yxs diMs j[k dj ckgj ls rkyk Mkydj ckgj vk, vkSj ges pkSdhnkj us ns[kk vkSj ge ckgj ls vkWVks esa cSB dj pys x, vkSj ge vius ?kj pys x, fot; flyseku ds firk jke fdlu us tc fot; flyseku dk isUV vkSj twrks ij [kwu ns[kk rks mlus oks diMs vkSj twrs 8 Criminal Appeal No.658 of 2006 xVj esa Qsad fn;s thrw os dlwj gS vki mls NksM nhft;s D;ksafd dkfry rks ge nksuks gSa vkSj eEeh es fdlh dks ewg fn[kkus ds yk;d ugh gwa blfy;s es tgj [kk dj [kqn [kq'kh dj jgk gwa esjh ekSr dk ftEesnkj fot; gksxkA ek; fM;j fids esa rq>ls cgqr I;kj djrk gwa eSus tks dqN Hkh fd;k etcwjh esa fd;k fids rw eq>s Hkh cgqr I;kj djrh gS eq>s rsjh cgqr ;kn vk jgh gS vkSj yMds dh Hkh cgqr ;kn vk jgh gS pht [kkvksxs fids rsjk esjk lkFk ;gh rd dk Fkk esjs thou esa ftrus Hkh iy rsjs lkFk chrs ;s thou ds lcls glhu fnu Fks gks ldrk gS fd es rsjs yk;d gh ugha Fkk viuk [;ky j[kuk esjh I;kjh fids rqEgkjk ';ke eEeh jke eerk xCcj ikik vkSj fids rqe lc yksx eq>s ekQ dj nsuk oSls rks eSa ekQh ds dkfcy ugha gwa blfy;s esa tgj [kk dj [kqn[kq'kh dj jgk gwa esjh eksr ij esjs ?kj okyks dks ijs'kku u djk tk;s D;ksafd esjh eksr dk ftEesnkj fot; flyseku gS D;ksafd mlus eq>s /kks[kk fn;kA eSa ';ke ukenso gwa esjk irk ek/kks xat fprsjk vksyh izrki pDdh ds ikl Qksu u- 5074112 fids rw viuk [;ky j[kuk vkSj esjs yMds dks vPNk vkneh cukuk vkSj xCcj dh 'kknh vPNh rjg ls djuk vkSj eEeh ls dguk fd ml fnu tks esus eEeh ij gkFk mBk;k Fkk eq>s ekQ dj nks vkSj jke ls dguk fd 'kjkc NksM ns vkSj viuk ?kj ns[ks rqEgkjk HkkbZ ';ke osls rks esjh bPNk Fkh fd esa vius yMds dh lwjr ,d ckj ns[k ywa eSa etcwj gwa eSa Xokfy;j dk gwa esjh tsc esa 450 : gSa ,d ?kM+h irk ek/kks xat fprsjk vksyh izrki pDdh ds ikl Qksu u- 5074112^^ The said suicide note was sent to the handwriting expert.
18. O.P. Bilgaiyan (P.W.25) is the handwriting expert, who had examined the suicide note with the admitted handwriting of co-accused Shyam. This witness has stated that certain similarities were found which were strongly indicative of their common authorship, but various characteristics, features and extent of natural variations, around these as occurring in questioned writings remain unexplained. Thus, for definite opinion, more admittedly genuine standard writings of person concerned were desired. The report given by this witness is Ex. P.25.
19. According to the report of the handwriting expert, 9 Criminal Appeal No.658 of 2006 although no definite opinion could be given but it was specifically mentioned that several similarities are strongly indicative of common authorship. This Court cannot lose sight of the fact that the co-accused Shyam had committed an offence in a most brutal manner by killing his own aunt and assaulting cousin sister. The co-accused Shyam was undergoing the disturb phase of mind. He was guilty conscious and was unable to face the situation. His intentions to commit suicide were going on in his mind. Thus, when a person is in disturb phase of mind with guilty consciousness, then some variations are bound to occur in his handwriting. Thus, the peculiar circumstances, under which the suicide note was written by the co-accused Shyam, cannot be ignored by this Court. Thus, it is held that the Suicide Note Ex. P.22 is in the handwriting of the co-accused Shyam, who committed suicide, just after 4 days of the incident.
20. A confessional statement is not necessarily required to be addressed to any body. It may be in the form of verbal statement or in writing. Since, the suicide note Ex.P.22 was left by the co-accused Shyam, then the same can be treated as written form of Extra Judicial Confession. The Supreme Court in the case of Ajay Singh Vs. State of Maharashtra, reported in (2007) 12 SCC 341 has held as under :
"10. The expression "confession" is not defined in the Evidence Act. "Confession" is a statement made by an accused which must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. The dictionary meaning of the word "statement" is "act of stating; that which is stated; a formal account, declaration of facts, etc." The word "statement" includes both oral and written statement. Communication to another is not however an essential component to constitute a "statement". An accused might have been overheard uttering to himself or saying to his wife or any other person in confidence. He 10 Criminal Appeal No.658 of 2006 might have also uttered something in soliloquy. He might also keep a note in writing. All the aforesaid nevertheless constitute a statement. If such statement is an admission of guilt, it would amount to a confession whether it is communicated to another or not. This very question came up for consideration before this Court in Sahoo v. State of U.P. After referring to some passages written by well-known authors on the "Law of Evidence" Subba Rao, J. (as he then was) held that "communication is not a necessary ingredient to constitute confession". In para 5 of the judgment, this Court held as follows: (AIR p. 42) "5. ... Admissions and confessions are exceptions to the hearsay rule. The Evidence Act places them in the category of relevant evidence presumably on the ground that, as they are declarations against the interest of the person making them, they are probably true. The probative value of an admission or a confession does not depend upon its communication to another, though, just like any other piece of evidence, it can be admitted in evidence only on proof. This proof in the case of oral admission or confession can be offered only by witnesses who heard the admission or confession, as the case may be. ... If, as we have said, statement is the genus and confession is only a sub-species of that genus, we do not see any reason why the statement implied in the confession should be given a different meaning. We, therefore, hold that a statement, whether communicated or not, admitting guilt is a confession of guilt."
21. The next question for consideration is that whether the confessional statement made by the co-accused Shyam, would be admissible against the appellant or not ?
22. Section 30 of Evidence Act, 1872 reads as under:-
"30. Consideration of proved confession affecting person making it and others 11 Criminal Appeal No.658 of 2006 jointly under trial for same offence.-- When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. Explanation.--"Offence" as used in this section, includes the abetment of, or attempt to commit, the offence
23. The Supreme Court in the case of State of Maharashtra Vs. Kamal Ahmed Mohammed Vakil Ansari reported in (2013) 12 SCC 12 has held as under :
"16. The scheme of the provisions pertaining to admissions/confessions under the Evidence Act (spelt out in Sections 17 to 31) makes admissions/confessions admissible (even though they are rebuttable) because the author of the statement acknowledges a fact to his own detriment. This is based on the simple logic (noticed above), that no individual would acknowledge his/her liability/culpability unless true.............
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19. The issue in hand can also be examined from another perspective, though on the same reasoning. Ordinarily, as already noticed hereinabove, a confessional statement is admissible only as against an accused who has made it. There is only one exception to the aforesaid rule, wherein it is permissible to use a confessional statement, even against person(s) other than the one who had made it. The aforesaid exception has been provided for in Section 30 of the Evidence Act, which is being extracted hereunder:
"30. Consideration of proved confession affecting person making it and others jointly under trial for same offence.-- When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is 12 Criminal Appeal No.658 of 2006 proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession.
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Illustrations
(a) A and B are jointly tried for the murder of C. It is proved that A said -- 'B and I murdered C'. The court may consider the effect of this confession as against B.
(b) A is on his trial for the murder of C. There is evidence to show that C was murdered by A and B, and that B said -- 'A and I murdered C'.
This statement may not be taken into consideration by the court against A, as B is not being jointly tried".
As is evident from a perusal of Section 30 extracted above, a confessional statement can be used even against a co-accused. For such admissibility it is imperative that the person making the confession besides implicating himself, also implicates others who are being jointly tried with him. In that situation alone, is such a confessional statement relevant even against the others implicated."
24. The Supreme Court in the case of Nasir Khan Vs. State of Delhi reported in (2003) 8 SCC 461 has held as under :
"24............Section 24 of the Evidence Act deals with confession caused by inducements, threat or promise, which is irrelevant in criminal proceedings. The expression "confession" has not been defined in the Evidence Act. Broadly speaking, it is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. Law relating to confessions is to be found generally in Sections 24 to 30 of the Evidence Act and Sections 162 and 164 of the Code of Criminal Procedure, 1898 (for short "the old Code") corresponding to identical provisions of the Code. Confession is a species of admission. A confession or admission is evidence against its maker, if its 13 Criminal Appeal No.658 of 2006 admissibility is not excluded by some provision of law. 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 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. In Principles and Digest of the Law of Evidence, Vol. I, New Edn. by Chief Justice M. Monir, after noticing conflicting views and discussing various authorities, the learned author summarized the position as follows:
"The rule may therefore, be stated to be that whereas the evidence in proof of a confession having been made is always to be suspected, the confession, if once proved to have been made and made voluntarily, is one of the most effectual proofs in the law."
25. The Supreme Court in the case of Nathu Vs. State of U.P. reported in AIR 1956 SC 56 has held as under :
"The question how far the confessions of co- accused could be treated as evidence against an accused was considered elaborately in Kashmira Singh v. State of Madhya Pradesh, and it was held therein that such statements were not evidence as defined in Section 3 of the Evidence Act, that no conviction could be founded thereon, but that if there was other evidence on which a conviction could be based, they could be referred to as lending assurance to that conclusion and for fortifying it. Exhibits P-5 and P-6 are therefore not substantive evidence, and could only be taken into consideration if there is other independent evidence on which the conviction could be based."
14 Criminal Appeal No.658 of 2006
26. The Supreme Court in the case of Kashmira Singh Vs. State of Punjab reported in AIR 1952 SC 159 has held as under :
"10.........The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept."
27. The Supreme Court in the case of Haricharan Kurmi Vs. State of Bihar reported in (1964) 6 SCR 623 has held as under :
"13. As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court isinclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor 15 Criminal Appeal No.658 of 2006 v. Lalit Mohan Chuckerburty a confession can only be used to "lend assurance to other evidence against a co-accused". In re Periyaswami Moopan Reilly. J., observed that the provision of Section 30 goes not further than this: "where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence". In Bhuboni Sahu v. King the Privy Council has expressed the same view. Sir John Beaumont who spoke for the Board, observed that "a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved the case; it can be put into the scale and weighed with the other evidence". It would be noticed that as a result of the provisions contained in Section 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it 16 Criminal Appeal No.658 of 2006 must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in Section
30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh where the decision of the Privy Council in Bhuboni Sahu case has been cited with approval.
* * * *
15. The statements contained in the confessions of the co-accused persons stand on a different footing. In cases where such confessions are relied upon by the prosecution against and accused person, the court cannot begin with the examination of the said statements. The stage to consider the said confessional statements arrives only after the other evidence is considered and found to be satisfactory. The difference in the approach which the court has to adopt in dealing with these two types of evidence is thus clear, well understood and well- established. It, however, appears that in Ram Prakash case some observations have been made which do not seem to recognise the distinction between the evidence of an accomplice and the statements contained in the confession made by an accused person. "An examination of the reported decisions of the various High Courts in India," said Imam, J., who spoke for the Court in that case, "indicates that the preponderance of opinion is in favour of the view that the retracted confession of an accused person may be taken into consideration against a co-accused by virtue of the provisions of Section 30 of the Act, its value was extremely weak and there could be no conviction without the fullest and strongest corroboration on material particulars". The last portion of this observation has been interpreted by the High Court in the present case as supporting the view that like the evidence of an accomplice, 17 Criminal Appeal No.658 of 2006 a confessional statement of a co-accussed person can be acted upon if it is corroborated in material particulars. In our opinion, the context in which the said observation was made by this Court shows that this Court did not intend to lay down any such proposition. In fact, the other evidence against the appellant Ram Prakash was of such a strong character that this Court agreed with the conclusion of the High Court and held that the said evidence was satisfactory and in that connection, the confessional statement of the co-accused person was considered. We are, therefore, satisfied that the High Court was in error in this case in taking the view that the decision in Ram Prakash was intended to strike a discordent note from the well- ebtablished principles in regard to the admissibility and the effect of confessional statements made by co-accused persons."
28. The Supreme Court in the case of NCT of Delhi Vs. Jaspal Singh reported in (2003) 10 SCC 586 has held as under :
"9. The submissions on behalf of the parties on either side on either the relevance, efficacy and reliability of the confessional statements of the 1st accused or principles underlying Sections 10 and 30 of the Indian Evidence Act, 1872, next fall for consideration. No doubt, in law the confession of a co-accused cannot be treated as substantive evidence to convict, other than the maker of it, on the evidentiary value of it alone. But it has often been reiterated that if on the basis of the consideration of other evidence on record the court is inclined to accept the other evidence, but not prepared to act on such evidence alone, the confession of a co-accused can be pressed into service to fortify its belief to act on it also. Once there are sufficient materials to reasonably believe that there was concert and connection between persons charged with a common design, it is immaterial as to whether they were strangers to each other or ignorant of the actual role of each of them or 18 Criminal Appeal No.658 of 2006 that they did not perform any one or more of such acts by joint efforts in unison. Section 30 of the Indian Evidence Act envisages that when more than one person are being tried jointly for the same offence and a confession made by one of such persons is found to affect the maker and some other of such persons and stands sufficiently proved, the court can take into consideration such confession as against such other person as well as against the person who made such confession. This is what exactly seems to have been done by the learned trial Judge, particularly in the context of sufficient material available to also directly involve A-3 and A-4 in the common design of collecting materials relating to army activities or defence secrets. The learned Judge in the High Court not only misconstrued the relevant principles of law but also is found to have gone amiss totally to the relevant and vital aspects of the materials and appears to have arrived at conclusions patently against the weight of evidence, resulting in grave miscarriage of justice. The decision in Natwarlal Sakarlal Mody v. State of Bombay was in the context of the need for joint trial claimed by the State of cases involving distinct acts/offences of criminal conspiracy against several accused and does not even otherwise in any manner lend support to the plea made on behalf of the respondent."
29. The Supreme Court in the case of Mohd. Khalid Vs. State of W.B. reported in (2002) 7 SCC 334 has held as under :
"31. A confessional statement is not admissible unless it is made to the Magistrate under Section 25 of the Evidence Act. The requirement of Section 30 of the Evidence Act is that before it is made to operate against the co-accused the confession should be strictly established. In other words, what must be before the court should be a confession proper and not a mere circumstance or an information which could be an incriminating one. Secondly, it being 19 Criminal Appeal No.658 of 2006 the confession of the maker, it is not to be treated as evidence within the meaning of Section 3 of the Evidence Act against the non-maker co-accused and lastly, its use depends on finding other evidence so as to connect the co-accused with the crime and that too as a corroborative piece. It is only when the other evidence tendered against the co-accused points to his guilt then the confession duly proved could be used against such co-accused if it appears to effect (sic) him as lending support or assurance to such other evidence. To attract the provisions of Section 30, it should for all purposes be a confession, that is a statement containing an admission of guilt and not merely a statement raising the inference with regard to such a guilt. The evidence of the co- accused cannot be considered under Section
30 of the Evidence Act, where he was not tried jointly with the accused and where he did not make a statement incriminating himself along with the accused. As noted above, the confession of a co-accused does not come within the definition of evidence contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is only when a person admits guilt to the fullest extent, and exposes himself to the pains and penalties provided for his guilt, there is a guarantee for his truth. The legislature provides that his statement may be considered against his fellow accused charged with the same crime. The test is to see whether it is sufficient by itself to justify the conviction of the person making it of the offence for which he is being jointly tried with the other person or persons against whom it is tendered. The proper way to approach a case of this kind is, first to marshal the evidence against the accused excluding the confession altogether from consideration and see whether if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where 20 Criminal Appeal No.658 of 2006 the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence........."
30. Thus, it is clear that a voluntary confessional statement made by the co-accused cannot be treated as an Evidence against another. The same cannot form basis for conviction, however, the same can be used as corroborative piece of evidence. There may be circumstances, where the Court may find reliable evidence against an accused, but might be finding it difficult to convict him, then under such a situation, the Court can always use the confessional statement of a co- accused as a corroborative piece of evidence. In order to apply the provision of Section 30 of Evidence Act, there should be a voluntary confessional statement by a co-accused, the said confessional statement should be inclulpatory in nature against the maker of the statement also. However, the said voluntary confessional statement cannot be treated as Evidence much less substantive evidence against the co- accused and the same cannot be made the basis for conviction, however, the said confessional statement can be used for corroborative purposes.
31. What would be the effect of suicide note left by the co- accused Shyam, shall be considered after considering the other evidence, which has been led by the prosecution. It shall also be considered, that whether the suicide note, Ex. P.22, left by the co-accused Shyam, can be used even for corroborative purposes or not?
32. As it has already been held by the Trial Court, that although, the ornaments which were seized from the possession of the appellant were identified by the witnesses, but since, Rani (P.W.1) and Devisharan (P.W.2) have admitted 21 Criminal Appeal No.658 of 2006 in their evidence, that the ornaments were shown to them by the police, prior to holding of Test Identification, therefore, the prosecution has failed to prove that the ornaments of the deceased were seized from the possession of the appellant. Thus, the recovery of ornaments belonging to the deceased and which were robbed from the house of the deceased, could not be proved by the prosecution beyond reasonable doubt.
33. The next question for determination is that whether Rani (P.W.1) and Devisharan (P.W.2) have identified the appellant or not?
34. Rani (P.W.1) is the only injured eye-witness and this witness had lodged the Dehati Nalishi, Ex. D.1, in the hospital on the basis of which the F.I.R. Ex. P.8 recorded. In the F.I.R. it was specifically stated by the witness that one day prior to the date of incident, the friend of the co-accused Shyam had also come to their house along with Shyam. Thus, the identification of the appellant was disclosed as friend of co- accused Shyam, who had come to the house of the injured on earlier occasion also. Nareshpuri (P.W.18) has stated that on 20-8-2007, he had delivered the copy of the F.I.R. in the Court of J.M.F.C. Gwalior, and its receipt is Ex. P.21 and the photo copy is Ex. P.21 C. Thus, it is clear that the copy of the F.I.R. was sent to the concerning Magistrate on 20-8-2007 itself i.e., on the next date of incident, and prior to committing of suicide by the co-accused. Thus, the allegation made by Rani (P.W.1) in her Dahiti Nalishi that, the another assailant was the person, who had come to their house, one day prior to the date of incident along with the co-accused Shyam, is beyond any doubt. The entire case is now based on the Identification of the appellant.
35. Rani (P.W.1) could not identify the appellant during Test Identification Parade conducted by the police. In para 6 of her examination in chief, she has clarified that since, the appellant 22 Criminal Appeal No.658 of 2006 had bend his head, therefore, She could not identify him, during T.I.P. However, the appellant was identified by Rani (P.W.1) in the Court.
36. Devisharan (P.W.2) had identified the appellant in the Test Identification Parade Ex. P.1. However, in para 9 of his cross examination, he has admitted that after the arrest of the appellant, the police had verified from him that whether he is the same person or not and then he had verified that the appellant is the same person, who had come with the co- accused Shyam to his house, prior to the date of incident. Thus, it is submitted by the Counsel for the appellant, that as the appellant was already shown to the witness by the police, prior to holding of Test Identification Parade, therefore, identification of the appellant by Devisharan (P.W.2) is of no consequence.
37. The question for determination is that what would be the effect of identification of accused by the witnesses in the Court?
38. The Supreme Court in the case of Subhash Krishnan Vs. State of Goa reported in (2012) 8 SCC 365 has held as under :
"21. The appellant was identified by at least two of the witnesses, PWs 14 and 33 in the TIP held on 3-11-2003 at the behest of PW 30, the Special Judicial Magistrate. Though it was contended that the appellants raised an objection to the effect that they were already shown by the police officials to the said witnesses, in order to rule out any hazard on that score, the accused himself suggested that he be permitted to change his shirt which PW 30 allowed and, thereafter, he subjected himself to the TIP in which he was identified by PWs 14 and 33 without any hesitation. As pointed out by the learned counsel for the State with regard to the holding of the TIP nothing was elicited in the cross-examination in order to hold that the whole of the TIP was not conducted in the 23 Criminal Appeal No.658 of 2006 manner it was to be held and that the identification of the appellant was not proved in the manner known to law. PW 14 also stated in her evidence that she had seen the appellant in the village earlier though she did not know his name. Therefore, when such identification of the appellant was proved to the satisfaction of the court, there was nothing more to be proved about the manner in which it was held or to find any flaw in the holding of the TIP.
22. At the risk of repetition it will have to be stated that the witnesses were not questioned as to the manner in which they were asked to identify the appellant in the TIP or the alleged defect in the holding of the said parade when the witnesses were examined before the court. Therefore, it is too late in the day for the appellant to contend that the identification parade was not carried out in the manner known to law. Coupled with the above, the evidence of other eyewitnesses, namely, PWs 16, 23, 26, 27 and 34 in having identified him in the court by making specific reference to the red-coloured shirt worn by him at the time of the occurrence fully corroborated the version of PWs 14 and 33.
23. It will be appropriate to refer to the decisions of this Court in Simon v. State of Karnataka, Dana Yadav v. State of Bihar and Daya Singh v. State of Haryana. The following passages in the abovereferred decisions can usefully be referred as under. 23.1. Simon v. State of Karnataka:
"14. ... mere identification of an accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification parade is to test and strengthen the trustworthiness of that evidence. The courts generally look for corroboration of the sole testimony of the witnesses in court so as to fix the identity of the accused who are strangers to them in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court 24 Criminal Appeal No.658 of 2006 is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. It has also to be borne in mind that the aspect of test identification parade belongs to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim, a test identification parade. Mere failure to hold a test identification parade would not make inadmissible the evidence of identification in court. What weight is to be attached to such identification is a matter for the courts of fact to examine. In appropriate cases, it may accept the evidence of identification even without insisting on corroboration...."
23.2. Dana Yadav v. State of Bihar:
"38. ... (a)-(e) * * *
(f) In exceptional circumstances only, as discussed above, evidence of identification for the first time in court, without the same being corroborated by previous identification in the test identification parade or any other evidence, can form the basis of conviction.
(g) * * *"
23.3. Daya Singh v. State of Haryana:
"13. ... For this purpose, it is to be borne in mind that the purpose of test identification is to have corroboration to the evidence of the eyewitnesses in the form of earlier identification and that substantive evidence of a witness is the evidence in the court. If that evidence is found to be reliable then absence of corroboration by test identification would not be in any way material. Further, where reasons for gaining an enduring impress of the identity on the mind and memory of the witnesses are brought on record, it is no use to magnify the theoretical possibilities and arrive at conclusion--what in present-day social environment infested by terrorism is 25 Criminal Appeal No.658 of 2006 really unimportant. In such cases, not holding of identification parade is not fatal to the prosecution."
39. The Supreme Court in the case of R. Shaji Vs.State of Kerala reported in (2013) 14 SCC 266 has held as under :
"57. It has further been submitted that the prosecution failed to hold the test identification parade. Therefore, the prosecution case itself becomes doubtful.
58. In Vijay v. State of M.P. this Court, while dealing with the effect of non-holding of a test identification parade, placed very heavy reliance upon the judgments of this Court in Santokh Singh v. Izhar Hussain, State of H.P. v. Lekh Raj and Malkhansingh v. State of M.P. and held that the evidence from a test identification parade is admissible under Section 9 of the Evidence Act, 1872. The identification parade is conducted by the police. The actual evidence regarding identification is that which is given by the witnesses in court. A test identification parade cannot be claimed by an accused as a matter of right. Mere identification of an accused in a test identification parade is only a circumstance corroborative of the identification of the accused in court. Further, conducting a test identification parade is meaningless if the witnesses know the accused, or if they have been shown his photographs, or if he has been exposed by the media to the public. Holding a test identification parade may be helpful to the investigation to ascertain whether the investigation is being conducted in a proper manner and with proper direction. (See also Munna Kumar Upadhyay v. State of A.P.)
59. In the instant case, the witnesses, particularly Jose (PW 8), Baiju (PW 9), Reji (PW 11) and Shanavas (PW 12), made it clear that they were acquainted with the appellant since he was posted in the control room of their city. Moreover, just after the incident took place, the same being a sensitive case wherein the main accused was a highly ranked official of the 26 Criminal Appeal No.658 of 2006 Police Department, wide publicity was given to the same by the media. In the light of the aforementioned fact situation, the holding/non-holding of a test identification parade loses its significance."
40. The Test Identification Parade, conducted by the police cannot be said to be a substantive piece of evidence. At the most, it can be used as corroborative piece of evidence of identification of accused in the Court. The identification of the accused in the Court is the substantive piece of evidence, and the conviction can be recorded on the basis of identification of the accused in the Court.
41. It is submitted by the Counsel for the appellant that Rani (P.W.1) could not identify the appellant in the Test Identification Parade, whereas Devisharan (P.W.2) has admitted in his evidence that the appellant was shown to him by the police prior to holding of Test Identification Parade, therefore, the identification of the appellant in the dock is farce. The submission made by the Counsel for the appellant cannot be accepted, for the simple reason, that the appellant did not raise any objection at the time of holding of T.I.P. By the police and he participated in the T.I.P., without any objection and hesitation. Further, even if the T.I.P., conducted by the police is discarded, the identification of the appellant in the Court, by the witnesses would be the substantive piece of evidence. Thus, it cannot be said that there is no substantive evidence against the appellant.
42. Now the question would be that whether the identification of the appellant in the Court by the witnesses, by itself is sufficient to convict the appellant or not? In order to meet such a circumstance, Section 30 of Evidence Act, can be pressed into service. The co-accused Shyam had left a suicide note, Ex. P.22 which was not only voluntary, but was inculpatory in nature and was against the appellant also. The 27 Criminal Appeal No.658 of 2006 co-accused Shyam was made an accused and charge sheet was also filed, but since, he had already committed suicide, therefore, it cannot be said that the appellant was not jointly tried with the co-accused Shyam. The suicide note was voluntary as the co-accused Shyam was not in a position to handle the situation because of his guilty conscious. A free and fair confession, always flow from the highest sense of guilt. The co-accused Shyam was feeling so guilty of having committed such a gruesome offence, that he ultimately decided to end his life by committing suicide. The suicide note, Ex. P.22, left by him also indicate that he was very regretful for his act and his guilty conscious, ultimately compelled him to put an end to his life. The voluntariness of the confession in the form of suicide note, Ex. P.22 cannot be doubted. Thus, this Court is of the considered opinion that the suicide note, Ex. P.22 can be used as a corroborative piece of evidence in support of the substantive evidence of identification of the appellant in the Court.
43. Thus, this Court is of the considered opinion, that the prosecution has succeeded in establishing the guilt of the appellant beyond reasonable doubt.
44. Accordingly, the conviction of the appellant for offence under 302/34, 394/397 of I.P.C. read with Section 13 of M.P.D.V.P.K. Act and under Section 307 of I.P.C. is hereby upheld.
45. So far as the question of sentence is concerned, the minimum sentence provided for offence under Section 302 of IPC is Life Imprisonment, therefore, the question of interference in the sentence for offence under Section 302/34 of I.P.C. does not arise. So far as the sentence of rigorous imprisonment of 7 years and a fine of Rs. 250/- for offence under Section 394/397 of I.P.C. read with Section 13 of M.P.D.V.P.K. Act and rigorous imprisonment of 7 years and a 28 Criminal Appeal No.658 of 2006 fine of Rs. 250/- for offence under 307 of I.P.C is concerned, the same also does not require any interference.
46. Consequently, the judgment and sentence dated 20-7- 2006 passed by Special Judge (M.P.D.V.P.K. Act), Gwalior in Special Sessions Trial No.114/2004, is hereby affirmed.
47. The appeal fails and is hereby dismissed.
(ANAND PATHAK) (G.S. AHLUWALIA)
Judge Judge
MKB
MAHENDRA KUMAR BARIK
2017.12.22 14:03:57 +05'30'