Gauhati High Court
Radhanath Yadab vs State Of Assam on 4 October, 2016
Author: Suman Shyam
Bench: Suman Shyam
IN THE GAUHATI HIGH COURT
(High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Crl. Appeal No. 23/2014
Sri Radhanath Yadav ......Appellant
VERSUS
The State of Assam ......Respondent
Crl. Appeal (J) No. 140/2013 Sri Bishnu Goala ......Appellant VERSUS The State of Assam ......Respondent BEFORE HON'BLE THE CHIEF JUSTICE MR. AJIT SINGH HON'BLE MR. JUSTICE SUMAN SHYAM For the Appellant : Mr. A.M. Bora, Advocate Ms. R.D. Mazumder, Amicus Curiae For the Respondent : Ms. S. Jahan, Addl. P.P. Assam Date of hearing : 02-09-2016 Date of Judgment : 04-10-2016 Judgment and Order (CAV) (Sum an Shyam , J) Crl. Appeal No. 23/2014 has been filed by the sole appellant Radhanath Yadav whereas Crl. Appeal No. 140(J)/ 2013 has been preferred by the appellant Bishnu Goala , both of whom were convicted under Section 120(B)/302 of the Indian Penal Code for conspiring and murdering of Smti. Kanchan Devi Chajjar and sentenced to imprisonment Crl. Appeal No. 23/2014 Crl. Appeal (J) No. 140/2013 Page 1 of 33 for life with a fine of Rs. 5,000/- each with default clause. In addition, the appellant Bishnu Goala has also been sentenced to undergo rigorous imprisonment for 02 years with a fine of Rs. 1,000/- imposed under Section 380/34 IPC with further sentence of rigorous imprisonment for 06 months under Section 427/34 IPC. Since both the appellants were the co- accused who have been jointly tried and eventually convicted by the common judgment and order dated 11-11-2013, hence, we propose to dispose of both these appeals by this common judgment and order.
2. The prosecution case, in brief, is that the deceased Kanchan Devi Chajjar was running a sweet meat shop in the name and style of "Tulsi Sweet" from the tenanted premises situated in the ground floor of the RCC building belonging to the appellant Radhanath Yadav. On the night of 09-09-2012, Kanchan Devi Chajjar came to her residential flat at about 07:30 p.m. after finishing the days work at her shop. When she was alone at her flat, the appellant Bishnu Goala, being accompanied by his nephew Sanju Goala, came to her residence and both of them had murdered Kanchan Devi Chajjar by strangulating her to death. The murder of Kanchan Devi Chajjar was committed by Bishnu Goala as per a conspiracy hatched by the appellant Radhanath Yadav, who had engaged Bishnu Goala to kill Kanchan Devi Chajjar with the sole objective of recovering possession of the tenanted premise which was under the occupation of the deceased.
Crl. Appeal No. 23/2014 Crl. Appeal (J) No. 140/2013 Page 2 of 33
3. On 09-09-2012 Shri Pankaj Kr. Nahar, the husband of the grand- daughter of the deceased lodged an ejahar with the Rangirkhari Police Out Post , Silchar, reporting the aforesaid incident based on which Rangirkhari P.S. Case No. 1798/2012 was registered under Sections 120(B)/302/427/379 of the Indian Penal Code and the matter was taken up for investigation. The entire incident of the murder of Kanchan Devi Chajjar was captured by the CC TV camera fitted at the residence of the deceased. The Police had seized the CC TV cameras and the Digital Vedio Recorder (DVR) and after examining the footage, the Police, with the help of an employee of the sweet meat shop, could identify appellant Bishnu Goala as one of the culprits who had committed the crime. Based on the CC TV footage, the Police had arrested appellant Bishnu Goala, who had not only admitted his involvement in the commission of the crime but had also stated that the murder was committed at the instance of appellant Radhanath Yadav. On the basis of the statement of Bishunu Goala, the appellant Radhanath Goala was also arrested by the Police. On completion of the investigation, the Investigating Officer (IO) submitted the charge-sheet against both the appellants under sections 120(B)/302/427/379 of the Indian Penal Code. A separate charge-sheet was submitted against the accused Sanju Goala since he was a juvenile in conflict with law. Thereafter, both the appellants were made to face trial jointly at the conclusion of which, they were convicted by the Sessions Crl. Appeal No. 23/2014 Crl. Appeal (J) No. 140/2013 Page 3 of 33 Judge, Cachar in connection with Sessions Case No. 268/2012 and sentenced as aforesaid.
4. The prosecution side had examined as many as 17 witnesses and exhibited 38 documents in support of their case. That apart, the prosecution had also exhibited 11 material exhibits. The defense side, however, did not adduce any evidence. Although the appellant Bishnu Goala had not only confessed his guilt before the Magistrate but had also admitted his involvement in the crime during his examination under Section 313 Cr.P.C. yet , the plea of the defense during trial was one of total denial. The appellant Radhanath Yadav had pleaded innocence and had denied his involvement in the crime.
5. There is no eye witness to the incident and the prosecution case is entirely based on circumstantial evidence which included the CCTV footage. Informant Pankaj Kr. Nahar was examined as PW-2 who had deposed before the court that the deceased Kanchan Devi Chajjar was the mother of Anil Kr. Chajjar who was the owner of "Tulsi Sweet" being run from the ground floor of the building owned by the appellant Radhanath Yadav. According to the PW-2, Kanchan Devi Chajjar used to come to the shop in the morning and remain there till the evening, whereafter, she used to return back to her residence. The PW-2 had testified that the occurrence took place on 09-09-2012 and he had received a telephone call from his wife (grand-daughter of the deceased) at about 09:00 p.m. informing the fact that her grandmother has been found in an unconscious Crl. Appeal No. 23/2014 Crl. Appeal (J) No. 140/2013 Page 4 of 33 condition at her residence. The PW-2 had deposed that being accompanied by his wife, he had then rushed to the residential house of Kanchan Devi Chajjar situated at Sundari Mohan Dutta Lane, Rangirkhari whereafter, they had called an 108 ambulance and then he along with Anand Bothra (PW-4) took Kanchan Devi Chajjar to Valley Hospital, Meharpur. On reaching the hospital, the on duty doctor declared her as brought dead. He had also stated that the doctor had found injury marks in her neck and therefore, asked him to report the matter to the police and take her to the Silchar Medical College and Hospital (SMCH). The doctors at the SMCH examined the dead body and thereafter, opined that it was a case of unnatural death. The witness Pankaj Kr. Nahar (PW-2) had also stated that the body was then taken to the morgue for conducting the post mortem examination. After returning back to Sundari Mohan Dutta Lane, Rangirkhari, when he went to the residential room of Kanchan Devi Chajjar, he could notice that two CCTV cameras were in broken condition and the things were all scattered in the room. PW-2 had further deposed that the almirah was found open inside the bedroom of Kanchan Devi Chajjar and he found from the cashbook of "Tulsi Sweets"
shop that approximately Rs. 90,000/- in cash was missing.
6. PW-3, Kanta Nahar is the wife of the informant (PW-2) and is also the grand-daughter of the deceased Kanchan Devi Chajjar. She had deposed before the court that her grandmother was residing in her own flat in the 3rd floor of a building situated at Sundari Mohan Dutta Lane, Crl. Appeal No. 23/2014 Crl. Appeal (J) No. 140/2013 Page 5 of 33 Rangirkhari and she was running a sweat meat shop by the name "Tulsi Sweet". She stated that on 09-09-2012 in the evening time she was trying to contact her grandmother over phone but since, despite her repeated phone calls there was no response from her grandmother, she became anxious and asked Vishal Dugar (PW-6), an employee of the shop, to go to her (deceased's)residence and enquire about her. At about 08:45 p.m. she received a call from Vishal Dugar informing her over phone that her grandmother had fainted in her residence and she was asked to go there immediately. On receiving the said information, Kanta Nahar (PW-3) had immediately rushed to the house of her grandmother being accompanied by husband Pankaj Kr. Nahar (PW-2). On reaching the house of her grandmother they found Anand Bothra (PW-4) was standing in the ground floor waiting for 108 ambulance. On entering the flat of Kanchan Devi Chajjar, she saw her grandmother was taken to the bed in the main hall and one or two employees were massaging her trying to regain her consciousness. The witness had also deposed that she saw injury marks in the throat of her grandmother while she was being taken to the Valley Hospital. Kanta Nahar had also deposed that she suspected the appellant Radhanath Yadav to be behind the murder of her grand-mother and that is because about 1 ½ months ago while going to the residential room situated at the 1st floor of the building housing "Tulsi Sweet" she had met Radhanath Yadav in the corridor when he had told her that one day he would kill her grandmother by cutting her throat. PW-3 further deposed Crl. Appeal No. 23/2014 Crl. Appeal (J) No. 140/2013 Page 6 of 33 that she had accordingly cautioned her grandmother to remain careful from Radhanath Yadav. PW-3 had also mentioned that there was litigation going on between Radhanath Yadav and her grandmother over the tenanted premises and that Radhanath Yadav used to disturb her(deceased) regarding water connection, electricity connection etc. demanding that she (Kanchan Devi Chajjar) should leave the building. The witness had also mentioned that the two CC TV cameras were broken and the almirah in the bed room was found open and she also confirmed that she had informed the said facts to the police.
7. PW-4 Anand Bothra was a neighbour of the deceased Kanchan Devi Chajjar, who had testified that on the night of 09-09-2012 at about 08:45 p.m. while he was taking "pan" in a nearby shop at Rangirkhari, he had received a phone call from his wife informing that Kanchan Devi Chajjar was lying on the floor in a unconscious condition and that he should immediately rush back home. Then he advised his wife to call 108 ambulance. On returning back to his house when he went to the main hall of the apartment of the deceased, he saw that she was lying in the 'charpaya' in a state of unconsciousness. When the ambulance arrived, he along with Pankaj Kr. Nahar (PW-2) took Kanchan Devi Chajjar to Valley Hospital where the on duty doctor examined her and informed that she was brought dead. PW-4 had further deposed that the doctor at Valley Hospital had made queries about injury marks in the throat region of Kanchan Devi Chajjar and the doctor also told that it was a case of Crl. Appeal No. 23/2014 Crl. Appeal (J) No. 140/2013 Page 7 of 33 unnatural death and police should be informed. PW-4 had also corroborated the version given by the PW-2 and PW-3 as regards the damage made to the CCTV camera and also the almirah in the bedroom having been found open and the fact that Pankaj Kr. Nahar had informed the police that cash amount of about Rs. 90,000/- was found missing. PW- 4 has also deposed that on the next morning at about 09:00 p.m. the police again came to the flat of Kanchan Devi Chajjar and thereafter, seized the DVR, cable, adaptor and other accessories of the CCTV camera including the covers of the broken CCTV camera.
8. The witness Anand Bothra(PW-4) had further deposed that on 10- 09-2012 at about 1 pm, the police had shown the CCTV footage to him and another employee of "Tulsi Sweet", viz. Vishal Dugar(PW-6). From the CCTV footage, Vishal Dugar could identify one of the assailants as Bishnu Goala, the milkman. According to PW-4, the CCTV camera had recorded the entire incident and the footage showed that on the day of occurrence, when Bishnu Goala rang the door bell, Kanchan Devi Chajjar came out to open the door. Then Bishnu Goala gave milk to Kanchan Devi Chajjar and when Kanchan Devi Chajjar went to the kitchen to keep the milk, Bishnu Goala entered the main hall of the apartment. After collecting the milk, Bishnu Goala had asked for a glass of water from Kanchan Devi Chajjar and when she went inside to fetch water for Bishnu Goala a young boy (identified as Sanju Goala), who was waiting outside the main hall in the passage area until that time, had also entered into the main hall. After Crl. Appeal No. 23/2014 Crl. Appeal (J) No. 140/2013 Page 8 of 33 giving a glass of water to Bishnu Goala when Kanchan Devi Chajjar again went back to the kitchen, Bishnu Goala followed her and put the glass in the kitchen sink. Thereafter, Bishnu Goala came out and went to the basin of the main hall and washed his hand and after that he was waiting near the basin. When the victim came to the middle of the main hall, Bishnu Goala immediately attacked her from backside bringing her down to the floor. Thereafter, Bishnu Goala had sat on her back and pulled her hair by one hand and pushed her chin to strangulate her. According to the witness, the CCTV footage displayed that Bishnu Goala remained in the said position for about 12 to 15 minutes. Thereafter, the young boy who was assisting Bishnu Goala took his place and repeated the same act like Bishnu Goala himself. The footage further displayed that when both of them believed her to be dead, they left her body and thereafter, tried to search for the keys of the almirah from her body. When the keys were located from her sari, they went inside the bedroom but since there was no CCTV camera fitted in the bedroom, there was no footage available so as to indicate as to what had happened inside the bedroom. After a little while, both Bishnu Goala and the young boy came out from the bedroom and their pockets could be seen to be filled up. They once again strangulated Kanchan Devi Chajjar. Once both of them were satisfied that Kanchan Devi Chajjar had already died, the young boy tried to remove the CCTV camera in the main hall but since he did not succeeded in doing so, Bishnu Goala himself went there and removed the camera. The aforesaid Crl. Appeal No. 23/2014 Crl. Appeal (J) No. 140/2013 Page 9 of 33 display of CCTV camera footage was made at the Police Station in presence of PW-4 and PW-6.
9. PW-5 Sandeep Nunia is an employee of the "Tulsi Sweet" shop. He had deposed before the court that the deceased Kanta Devi Chajjar used to reside in her residential flat at Sundari Mohon Lane. Prior to that, the deceased used to live in the 1st floor of the building in which Tulsi Sweets is situated but due to the disturbances created by the landlord Radhanath Yadav by posing hindrance at the entry and exit and also disconnecting the water connection, the deceased had purchased her own flat and shifted her residence. Sandeep Nunia (PW-5) further deposed that the deceased used to come to the shop at around 9 a.m. everyday and remained there till about 7-7.30 p.m. On the day of the occurrence, the deceased had returned back to her flat at around 7/7-30 pm on being accompanied by one of the employees Ganesh Nunia. The witness had also deposed that on the date of the incident, when he came to the flat at around 08:45 p.m. and opened the door with another set of keys he found that Kanchan Devi Chajjar was lying on the floor.
10. PW-6 Vishal Dugar is also an employee of "Tulsi Sweet" who had confirmed that on being instructed by PW-3 Kanta Nahar, he had gone to the flat of Kanchan Devi Chajjar on the day of the occurrence and found that the deceased was lying on the floor. The witness further confirmed that the CCTV cameras, DVRs and cables were seized by the police and on the very next day i.e. 10-09-2012 the footage of the CCTV camera was Crl. Appeal No. 23/2014 Crl. Appeal (J) No. 140/2013 Page 10 of 33 played in presence of him-self and PW-4, from which he could see that the milkman Bishnu Goala and the young boy accompanying him had strangulated Kanchan Devi Chajjar to death. The version of the PW-4 as regards the contents of the CCTV footage was corroborated by this witness.
11. Post Mortem examination was carried out on the dead body of Kanchan Devi Chajjar in the Silchar Medical College and Hospital (SMCH) on 10-09-2012. As per the post mortem report (Exhibit-2) bruise marks were present in the front of the neck measuring 5 c.m. X 1.5 c.m. at the level of the thyroid cartilage with surrounding discrete petecheal hemorrhage. That apart, scratched abrasions, two in number, over the left side of the chin, bruises over the left side of neck besides patchy scalp contusions over the posterior scalp in the occipital region were seen. According to Dr. Gunajit Das (PW-1), the doctor who had conducted the post mortem examination, the death was due to asphyxia as a result of application of constricting material on the neck, which was antemortem and homicidal in nature.
12. Sri Sanjay Das, the technician who had installed the CCTV cameras had been examined by the prosecution side as PW-8, who had deposed before the court that he had himself removed the DVR machine and the two broken CCTV cameras which were seized by the police. The witness further testified that on being instructed to show the recording in the DVR, he had played the footage in a television set in the chamber of the Officer- Crl. Appeal No. 23/2014 Crl. Appeal (J) No. 140/2013 Page 11 of 33 in-Charge of the Police Station and the picture quality was clear. PW-8 had also confirmed that when the footage was played, the Manager of "Tulsi Sweet" and another person (i.e. PW-4) were present and that the Manager of "Tulsi Sweet" had identified one person in the CCTV footage as Bishnu Goala.
13. The prosecution side had also examined Md. Abdus Sattar (PW-7), the Judicial Magistrate First Class (JMFC) who had recorded the confessional statement of Bishnu Goala under Section 164 Cr.P.C. He had confirmed that the confession was made by Bishnu Goala voluntarily and that the confessional statement was recorded by him after explaining all possible consequences of the same to the accused and also by observing all necessary legal formalities which included offering the appellant sufficient time for reflection.
14 . Based on the statement of appellant Bishnu Goala, the Police had recovered the keys of the Almirah and also the clothes worn by him on the day of occurrence. PW-9 Sri Sanjoy Kumar Das and PW-10 Sri Prodip Sharma are the two witnesses in presence of whom the keys were recovered by the Police. The PWs-9 and 10 have deposed before the court confirming the fact that they were the seizure witnesses of the two almirah keys recovered by the Police.
15 . PW-12 Anil Kumar Chajjar is the son of the deceased with whom the tenancy agreement in respect of the premises had been entered into by appellant Radhanath Yadav. The witness had deposed that he has to Crl. Appeal No. 23/2014 Crl. Appeal (J) No. 140/2013 Page 12 of 33 remain at Vishakapattanam in connection with his other businesses and his mother (deceased) used to run the sweet meat shop at Silchar. The witness had deposed that there were a number of pending litigations between him and Radhanath Yadav involving the tenanted premises and that Radhanath Yadav used to create a lot of disturbances in enjoyment of the said property to the extent that he had even threatened the witness with dire consequences as a result of which he was compelled to approach the court of law. PW-12 had also stated that his mother had got the CCTV cameras installed in her flat apprehending danger from Radhanath Yadav. 16 . Taking note of the bulk of materials available on record including the confessional statement of the appellant Bishnu Goala, the learned trial court had found both the accused guilty of conspiring and murdering Kanta Devi Chajjar and sentenced them as above.
17 . Referring to the evidence available on record, Mr. A.M. Bora, learned counsel appearing on behalf of the appellant Radhanath Yadav in Crl. Appeal No. 23/2014 has forcefully argued that there is no legal basis for the Trial Court to arrive at a conclusion that the appellant Radhanath Yadav was involved in a conspiracy to kill Kanchan Devi Chajjar. He submitted that the confessional statement of the co-accused Bishnu Goala cannot be the starting point for the court to convict another co-accused in as much as the confessional statement can at best be used as a corroborative material if there are other evidence available on record to support the conspiracy theory, which in the present case, according to the Crl. Appeal No. 23/2014 Crl. Appeal (J) No. 140/2013 Page 13 of 33 learned counsel, was non-existent. Mr. Bora, contended that save and except the confession, there is no other evidence available on record to connect Bishnu Goala with Radhanath Yadav in any manner. The mere fact that there is a litigation pending between the parties involving the tenanted premises cannot be a proof of conspiracy. In support of his aforesaid argument Mr. Bora has relied upon the following decisions:
1. (2001) 1 SCC 378 (Saju Vs. State of K erala)
2. AIR 1993 SC 2618 (Girja Shankar M isra & Anr. Vs. State of U.P.)
3. (2005) 3 SCC 169 (State of M .P. through CBI & Ors. Vs. Paltan M allah & Ors.)
4. AIR 1964 SC 1184 (Hari Charan K urm i & Anr. Vs. State of Bihar)
18. Mr. Bora further submitted that the reliance placed by the Trial Court on the testimony of PW-3, who had stated that the appellant Radhanath Yadav had threatened to kill her grandmother if she failed to vacate the tenanted house, is also wholly misplaced in view of the fact that the deceased had already shifted to her own residential accommodation prior to the date on which PW-3 had claimed to have met the appellant in the 1st floor of the building and therefore, there was no scope for the appellant to met the PW-3 at the 1st floor of the building. The learned counsel further argued that the testimony of PW-5 Sandeep Nunia to the effect that the appellant had created disturbance in the entry and exit of the tenanted premises which had prompted the deceased to shift to her new residence also could not have been relied upon by the Trial Court since the witness had neither mention the said fact before the Crl. Appeal No. 23/2014 Crl. Appeal (J) No. 140/2013 Page 14 of 33 Police nor was the said circumstance put to the appellant while examining him under Section 313 Cr.P.C. By referring to a decision of the Supreme Court rendered in the case of Sharad Birdhichand Sarda Vs. State of M aharastra reported in AI R 1984 SC 1622 (1) Mr. Bora has argued that circumstance not put to the accused cannot be used against him. On the basis of such argument Mr. Bora had contended that the impugned judgment and order passed by the learned Trial Court was not sustainable in law and hence, liable to be set aside.
19. Mrs. R.D. Mazumdar learned amicus curie appearing for the appellant Bishnu Goala had questioned the integrity of the electronic evidence (CCTV footage) relied upon by the trial court and further submitted that the court below has committed an error in convicting the appellant solely relying upon his confessional statement. 20 . Ms. S. Jahan, learned Addl. P.P. Assam appearing on behalf of the State, on the other hand, has contended that there were strong and reliable circumstantial evidence on the basis of which the prosecution had succeeded in establishing the charges brought against both the appellants. By referring to the testimony of the prosecution witnesses, Ms. Jahan had submitted that from the testimony of Kanchan Nahar (PW-3) it was apparent that the appellant Radhanath Yadav had harbored extreme ill feeling towards the deceased. Further, witness Sandeep Nunia (PW-5) had also categorically deposed before the court about the conduct of Radhanath Yadav trying to create disturbance in the enjoyment of the Crl. Appeal No. 23/2014 Crl. Appeal (J) No. 140/2013 Page 15 of 33 tenanted premises by the deceased. PW-12 Anil Kumar Chajjar had also deposed before the court that the appellant had once poured poisonous chemical substance in the water tank so as to cause injury to the deceased and her sweet meat shop business. She submits that the mere fact that the PW-5 and PW-12 have not stated the entire facts before the police while recording the statement under Section 161 Cr.P.C. would not amount to contradiction in the facts of the present case and the same can at best be treated as omissions. In support of her aforesaid contention, learned Addl. P.P. has relied upon a decision of the Supreme Court in the case of Baldev Singh Vs. State of P unjab reported in (2014) 12 SCC 473 P g. 28 .
21 . Ms. Jahan, had further argued that since the appellant Radhanath Yadav had admitted the existence of dispute between the parties as well as the pendency of litigation, hence, a mere omission to mention about a particular circumstance during examination under Section 313 Cr.P.C did not cause any prejudice to the appellant. In support of her aforesaid argument Ms. Jahan has placed reliance on a decision of the Supreme Court in the case of Liyakat Vs. State of R ajasthan reported in M ANU/ SC/ 0879/ 2014.
22 . We have bestowed are thoughtful consideration to the submissions advanced by the learned counsel for the parties and have also meticulously examined the materials available on record. Crl. Appeal No. 23/2014 Crl. Appeal (J) No. 140/2013 Page 16 of 33 23 . As noted above, appellant Bishnu Goala had made a judicial confession admitting his guilt. Law is well settled that conviction can be based on the confessional statement of the accused if the same is found to have been made voluntarily, without any inducement and had been recorded by following all procedural safe guards. In the instant case, there is nothing on record to suggest that the confession was not made voluntarily but under any pressure or inducement. Rather, the testimony of the PW-7 establishes the fact that the confession was made by Bishnu Goala on his own volition and the same was recorded by the Magistrate after adhering to all procedural safe guards.
24 . In his confessional statement (Exhibit-7), appellant Bishnu Goala had given a blow by blow account of the manner in which he had killed Kanchan Devi Chajjar with the help of his nephew Sanju Goala. The confessional statement of Bishnu Goala matches in toto with the recording of the events by the CCTV camera. Therefore, there is sufficient corroboration of the confession made by Bishnu Goala by the electronic evidence brought on record so as to establish the truthfulness of his version.
25 . The video footage along with the charger and remote control device marked as Exhibit-A were examined by the forensic expert and found to be genuine. The PW-13 Upen Bora, who is the Director of Photography Division in Forensic Science Laboratory, had examined the video footage and confirmed that the same was not tampered. Therefore, Crl. Appeal No. 23/2014 Crl. Appeal (J) No. 140/2013 Page 17 of 33 the prosecution side had been able to establish the authenticity of the video footage and in also succeeded in proving the confession of Bishnu Goala based on cogent evidence.
26 . Even during his examination under Section 313 Cr.P.C, Bishnu Goala has categorically admitted his involvement in the commission of the crime thereby, not only re-confirming the truthfulness of his confession earlier recorded by the Judicial Magistrate under Section 164 Cr.P.C. but also the fact that the CCTV footage was true and authentic to the minute details. That apart, evidence on record also shows that the statements made by the Bishnu Goala had lead to the discovery of the Shirt and trouser worn by him on the day of occurrence as well as the keys of the almirah. The video footage (Material Exhibit-A) coupled with the confessional statement of the accused as well as the discovery made by the police based on the statement of the accused leaves no manner of doubt that the appellant Bishnu Goala had committed the murder of Kanchan Devi Chajjar at her residential flat on 09-09-2012 with the help of his nephew Sanju Goala. 27 . Although Ms. Mazumder had made an attempt to impeach the integrity of the electronic evidence in the form of CCTV footage by taking the plea that no certificate as required by Section 65B of the Evidence Act had been produced by the prosecution side in the present case, the said argument of Ms. Mazumder is, however, found to be untenable firstly on account of the fact that the prosecution side had exhibited the original footage as primary evidence marked as Exhibit-A and the requirement of Crl. Appeal No. 23/2014 Crl. Appeal (J) No. 140/2013 Page 18 of 33 issuance of certificate under Section 65B arises in case a true copy of the electronic evidence is only produced before the court. Secondly the Director of Forensic Science Laboratory (PW-13) had been examined as witness by the prosecution side, who had come and deposed before the court that the copy of the CCTV footage which was examined and stored by him and transferred in the CD was not doctored and that the same was the true version of its original. Such testimony of PW-13, in our view, itself would amount to a certificate within the meaning of Section 65B of the Evidence Act.
28. Coming to the next aspect of the matter regarding the validity of the conviction of appellant Radhanath Yadav, as has been noted above, the prosecution case is wholly based on circumstantial evidence. Therefore, what would be of utmost importance in this case is to ascertain as to whether the prosecution side has been able to establish the charge brought against Radhanath Yadav under Section 120(B) of the Indian Penal Code based on circumstantial evidence.
29 . We have meticulously examined the confessional statement of Bishnu Goala. From the version given in the confessional statement recorded under Section 164 of the Cr.P.C. we find that Bishnu Goala had not only given a graphics description of the entire incident including the conspiracy hatched at the behest of Radhanath Yadav but has also ascribed the major role in the commission of crime to himself. Crl. Appeal No. 23/2014 Crl. Appeal (J) No. 140/2013 Page 19 of 33 30 . In his confessional statement, Bishnu Goala had mentioned that he was told by Radhanath Yadav that there was a litigation pending between Radhanath Yadav and Kanchan Devi Chajjar regarding the tenanted premises and that the rent was being deposited in the court. Radhanath Yadav had also told him that his house will be free only when the old woman (deceased) died and therefore, he had requested Bishnu Goala to look for a man who could kill the old woman, saying that one who killed the old woman would get 2 to 3 lakhs of rupees from him. When Bishnu Goala informed Radhanath Yadav after 2/3 days that he could not find out any person who could do the job and that Radhanath Yadav should look for someone by himself, Radhanath Yadav had asked Bishnu Goala to execute the work himself by making a promise to pay him a sum of Rs. 3,00,000/-. Although Bishnu Goala was initially reluctant to accept the said offer, yet, Radhanath Yadav persistently tried to convince him to do the job and being induced by the lure of big money, Bishnu Goala had agreed to kill the old woman on an assurance given by Radhanath Yadav that he would look after his wife and children. It was only thereafter that all the necessary information so as to execute the plan of killing the old woman was furnished to Bishnu Goala by Radhanath Yadav including detail particulars about the time at which the old woman returns to her residence from the shop and also as regards the existence of CCTV cameras at her residence. The learned Trial Court had relied upon the confessional statement of the co-accused Bishnu Goala to arrive at a Crl. Appeal No. 23/2014 Crl. Appeal (J) No. 140/2013 Page 20 of 33 conclusion that the charge of criminal conspiracy brought against Radhanath Yadav under Section 120B of the Indian Penal Code stood established. Therefore, the question that arises for our consideration is as to whether the court below could have relied upon the confessional statement of the co-accused to convict Radhanath Yadav on the charge of criminal conspiracy.
31. Section 30 of the Indian Evidence Act, 1872 envisages that When more persons than one are being tried jointly for the same offence, and a confession made by one of such person affecting himself and some other of such person 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. From a bare reading of Section 30, it is thus apparent that the court is entitled to rely upon the confessional statement of a co-accused when two or more persons are being tried jointly for the same offence.
32. In the case of M d. K halid Vs. State of W est Bengal reported in (2002) 7 SCC 334 the Supreme Court, while interpreting Section 30 of the Indian Evidence Act, had held that confessional statement of accused convicting himself and the co-accused can be taken into consideration against the co-accused if such confession is made in a proper manner containing admission of the guilt made voluntarily by the accused but before it is made to operate against the co-accused the confession should be strictly established. The Supreme Court had also observed that in a Crl. Appeal No. 23/2014 Crl. Appeal (J) No. 140/2013 Page 21 of 33 case of this nature the test is to see whether the confessional statement 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 against whom it is tendered. However, sounding a note of caution, it has further been observed that in such cases the proper way to approach would be to first marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, the conviction can be safely based on it. When the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain conviction, in such an event the confession can be called in aid and used to lend assurance to the other evidence. In other words, the confession of a co-accused is to be used as corroborative material when other evidence is available against the accused. 33 . Again in the case of Govt. of NCT of Delhi Vs. Jaspal Singh reported in (2003) 10 SCC 586 the Supreme Court has categorically observed that the confession of co-accused cannot be treated as substantive evidence to convict, other than the maker of it, on the evidentiary value of it alone. But the confession of the co-accused can be pressed into service to fortify his believe to act on it also when the court is inclined to accept other evidence. It has been held that 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 Crl. Appeal No. 23/2014 Crl. Appeal (J) No. 140/2013 Page 22 of 33 the actual role of each of them or that they did not perform any one or more of such acts by joint efforts in unison.
34 . Section 120 A of the Indian penal Code defines Criminal conspiracy which provides that when two or more persons agree to do, or cause to be done (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. Therefore, essence of criminal conspiracy is an agreement between two or more persons to do an illegal act or an act by illegal means. In the case of M d. K halid (supra) the Supreme Court has held that the essence of criminal conspiracy is the unlawful combination and ordinarily, the offence is complete when the combination is framed. For an offence punishable under Section 120B, the prosecution need not necessarily prove the existence of expressed agreement to do or cause to be done an illegal act and agreement may be proved by necessary implication. However, in order to punish for criminal conspiracy under Section 120B, the prosecution will have to establish that there was an agreement between the parties to do an unlawful act.
35 . Section 10 of the Indian Evidence Act, 1872 provides that where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the Crl. Appeal No. 23/2014 Crl. Appeal (J) No. 140/2013 Page 23 of 33 persons believed to so conspire, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.
36. In the case of State Vs. Nalini reported in (1999) 5 SCC 253 , interpreting Section 10, the Supreme Court had observed that in order to apply the said provision, the first condition would be the existence of reasonable ground to believe that the conspirators have conspired together. This condition will be satisfied when there is some prima facie evidence to show that there was some criminal conspiracy and if this condition is satisfied, then anything said by one of the conspirators becomes substantive evidence against the other provided that should be a statement in reference to their common intention. Similar view has been expressed by the Supreme Court in the case of State of T.N. Vs. J. Jayalalitha reported in (2000) 5 SCC 440, wherein it has been observed that unless the court has some materials to believe that the co- accused is one of the persons against whom there is reasonable ground to believe that he had conspired to commit the offence, anything said, done or written by the co-accused would not be relevant fact against each of the conspirators. Likewise, in the case of State of M .P Vs. P altan M allah (supra) it has been held that in the absence of any substantive evidence against the accused, conviction cannot be based on the confession made by co-accused.
Crl. Appeal No. 23/2014 Crl. Appeal (J) No. 140/2013 Page 24 of 33 37 . From the long line of decisions of the Supreme Court it can be summed up that law is firmly settled that the confessional statement of the co-accused can be taken in a limited application i.e. to corroborate the other evidence so as to convict a co-accused jointly tried in respect of the same offence. That is because confession of the co-accused is not substantive evidence within the meaning of Section 3 of the Evidence Act (see Hari Charan K urm i and Jogia Hajam Vs. State of Bihar ). Its evidentiary value is very poor since it is not one made on oath and the author cannot be subjected to cross-examination. But in the case of State Vs. Nalini (supra) the Supreme Court has also held that the normal rule of evidence that prevents the statement of one co-accused being used against the other under Section 30 of the Evidence Act does not apply in the trial of conspiracy in view of Section 10 of the Act. The observations made in paragraph 581 of the said decision are quoted here-in below:-
"581. It is true that provision as contained in Section 10 is a departure from the rule of hearsay evidence. There can be two objections to the admissibility of evidence under Section 10 and they are (1) the conspirator whose evidence is sought to be admitted against the co-conspirator is not confronted or cross- examined in court by the co-conspirator and (2) prosecution merely proves the existence of reasonable ground to believe that two or more persons have conspired to commit an offence and that brings into operation the existence of agency relationship to implicate co- conspirator. But then precisely under Section 10 of the Evidence Act, statement of a conspirator is admissible against a co- conspirator on the premise that this relationship exists. Prosecution, no doubt, has to produce independent evidence as to the existence of the conspiracy for Section 10 to operate but it need not prove the same beyond a reasonable doubt. Criminal conspiracy is a partnership in agreement and there is in each conspiracy a joint or mutual agency for the execution of a common object which is an Crl. Appeal No. 23/2014 Crl. Appeal (J) No. 140/2013 Page 25 of 33 offence or an actionable wrong. When two or more persons enter into a conspiracy any act done by any one of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefor. This means that everything said, written or done by any of the conspirators in execution of or in reference to their common intention is deemed to have been said, done or written by each of them. A conspirator is not, however, responsible for acts done by a conspirator after the termination of the conspiracy as aforesaid. The court is, however, to guard itself against readily accepting the statement of a conspirator against a co-conspirator. Section 10 is a special provision in order to deal with dangerous criminal combinations. Normal rule of evidence that prevents the statement of one co- accused being used against another under Section 30 of the Evidence Act does not apply in the trial of conspiracy in view of Section 10 of that Act. When we say that court has to guard itself against readily accepting the statement of a conspirator against a co-conspirator what we mean is that court looks for some corroboration to be on the safe side. It is not a rule of law but a rule of prudence bordering on law. All said and done, ultimately it is the appreciation of evidence on which the court has to embark."
38 . An offence like criminal conspiracy is always hatched privately and in secrecy and hence, direct evidence of criminal conspiracy is difficult to come by. In the case of CBI Vs. K . Naranaray R ao reported in (2012) 9 SCC 512 the Supreme Court has observed that the essence of criminal conspiracy is an agreement to do an illegal act and such agreement can be proved either by direct evidence or by circumstantial evidence or by both. Therefore, in all such cases where the prosecution is seeking to connect the accused by circumstantial evidence, motive of the accused to commit the offence assumes great significance.
39 . From the testimony of PWs-3, 5 and 12 as discussed above, it can been seen that there was a serious and protracted dispute going on between the appellant Radhanath Yadav on one hand and Anil Kumar Crl. Appeal No. 23/2014 Crl. Appeal (J) No. 140/2013 Page 26 of 33 Chajjar and his deceased mother on the other over the tenanted premises whereby, Radhanath Yadav was trying hard to get the premises vacated by adopting various questionable means. In her deposition, PW-3 Kanta Nahar had categorically mentioned about the "life threat" given to her grandmother by Radhanath Yadav if she failed to vacate the house. The PW-12 had also deposed about the various acts of disturbances committed by the appellant to recover possession of the tenanted premise. From the testimony of the PWs-3, 5 and 12 it is apparent that Kanta Devi Chajjar was compelled to shift her residence due to the trouble created by her landlord Radhanath Yadav. During the cross-examination of the said witnesses nothing could be brought out by the defense side so as to dislodge their testimony. From the evidence of the said witnesses, it is clearly established that not only had the quarrel between the parties assumed bitter proportions but there was also a sense of desperation on the part of the appellant Radhanath Yadav to get the premises vacated at any cost.
40. It was a known fact to the appellant that the son of the deceased Anil Kumar Chajjar was living at Vishakapattanam in connection with his other business and Kanta Devi Chajjar was living alone at Silchar running the sweet meat shop with the help of her employees. Therefore, it was obvious to the appellant that after Kanchan Devi Chajjar, there would be none to run and look after the sweet meat shop at Silchar and the tenant would be compelled to vacate even the ground floor of the premises. Crl. Appeal No. 23/2014 Crl. Appeal (J) No. 140/2013 Page 27 of 33 Under such circumstances, eliminating Kanchan Devi Chajjar would automatically ensure that the tenanted premises got vacated. Although, the PW-12 Anil Kumar Chajjar had also deposed before the court saying that the CCTV camera had to be installed only as a measure of security of his mother arising due to the threat held out by the appellant Radhanath Yadav, yet, it appears that the said statement was apparently not made by him before the Police. But even leaving aside the same, there were sufficient materials available on record to demonstrate his level of frustration and desperation in the matter and the motive on the part of Radhanath Yadav to eliminate the deceased was explicit. 41 . The submission of Mr. Bora that dacoity was the motive behind the crime is found to be untenable for the reasons that after committing the murder, Bishnu Goala did not steal the jwellery and other valuable items which were lying in the house of the deceased. Appellant Bishnu Goala had admitted in his confession that he had agreed to commit the murder being lured by big sum of money offered by Radhanath Yadav. Therefore, it is obvious that Bishnu Goala was interested in money and that is why after killing Kanta Devi, he went for the keys of the Almirah and had stolen the cash. Besides, the CC TV footage clearly demonstrated that Bishnu Goala went to the flat of Kanchan Devi Chajjar with the pre- meditated intention of killing her and seizing the first opportune moment, he had committed the act. The state of preparedness of the both the assailants including the minor Sanju Goala to commit the crime, which Crl. Appeal No. 23/2014 Crl. Appeal (J) No. 140/2013 Page 28 of 33 was evident from the CCTV footage also lends ample support to the theory that they had gone to the flat to murder Kanchan Devi Chajjar and not to commit dacoity. The fact that Bishnu Goala did not bring his nephew inside the flat at the first instance nor got him introduced to the deceased also negates the defense theory that the assailant had gone to the flat of the deceased with the intention of engaging his nephew as a domestic help.
42 . From the confession made by Bishnu Goala, it is evident that there was an agreement between Radhanath Yadav and Bishnu Goala to eliminate Kanchana Devi Chajjar. The detail description regarding the nature and extent of the tenancy dispute could not have been known to Bishnu Goala unless told by appellant Radhanath Yadav. It is also seen from the version given by Bishnu Goala that Radhanath Yadav had offered him a sum of Rs. 3,00,000/- to kill Kanchan Devi and it was the lure of such huge sum of money that Bishnu Goala had agreed to commit the crime.
43. From an analysis of the confessional statement of Bishnu Goala, we also find that his statements were spontaneous and bereft of any contradiction. Not only that, the author of the confession has ascribed the major role to himself and the inculpatory part of his statement far outweighs the exculpatory part of it. The inclupatory part of the accused's confessional statement also stood corroborated by the Video tapes and there is no evidence to contradict the same. Therefore, if the inclupatory Crl. Appeal No. 23/2014 Crl. Appeal (J) No. 140/2013 Page 29 of 33 part of confession accepting the major blame by the co-accused has been corroborated by un-impeachable evidence, we so no reason to presume that the exculpatory part of it, where he had mentioned about the conspiracy angle, could be based on falsehood for the simple reason that the accused does not stand to gain from it in any manner. When the confession of an accused directly implicates him in the commission of the crime by ascribing the major role to him, such confession assumes much greater degree of credibility and would generally commend acceptance by the court. Since the truthfulness of the major part of the confession of Bishnu Goala has been conclusively established from the materials on record, viz. the video tapes (Exhibit-A), the truthfulness of the entire confession has to be accepted. On a pointed query made by this court, the learned counsel also could not give any convincing reply as to why, having accepted the major blame upon himself, Bishnu Goal would falsely implicate Radhanath Yadav.
44 . The further submission of Mr. Bora that the circumstances not put to the appellant Radhanath Yadav had been relied upon by the court below is also not acceptable because of the fact that from an examination of the statement of Radhanath Yadav recorded under Section 313 Cr.P.C more particularly those pertaining to question Nos. 7, 16, 39, 44, 45, 46 it is found that all such circumstances pertaining to the dispute between the parties and the threat given to Anil Kumar Chajjar and his deceased mother, had been put to the appellant which he denied. Therefore, no Crl. Appeal No. 23/2014 Crl. Appeal (J) No. 140/2013 Page 30 of 33 prejudice is seen to have been caused to the appellant on such count as well. The submission of the learned counsel to the effect that the PW-3 Kanta Nahar could not have met the appellant in the 1st floor of the building since the deceased had already shifted to her flat by then is also without any basis since the evidence of PW-12 goes to show that the 1st floor is still under their possession.
45 . The law is no doubt firmly established that the confession of an accused alone cannot form the basis of conviction of a co-accused and the court must look for substantive evidence to convict an accused. But what must also be borne in mind that in the decisions referred to above, the Supreme Court was not confronted with a situation where there was un- impeachable electronic evidence in the form of CCTV footage to establish beyond doubt that the confession of the co-accused was based on truth and the whole truth. In this modern era of rapid technological advancement, CCTV cameras are now being widely installed in various premises for security reasons. The footages captured in the CCTV cameras often help the law enforcement in understanding the true dimension of the crime and as such, have started to play a significant role in the trial of criminal cases. The CCTV footages do not lie and hence, subject to the proof of authenticity of the clippings, due weightage and value has to be assigned to such electronic evidence by the courts during trial. The distinguishing feature in the case in hand is the existence of the video footage which had corroborated the confession of the co-accused and had Crl. Appeal No. 23/2014 Crl. Appeal (J) No. 140/2013 Page 31 of 33 afforded a highly convincing and credible basis for the trial court to rely upon the same so as to arrive at a conclusion that the appellant Radhanath Yadav was in fact involved in a criminal conspiracy. In a case involving conspiracy, Section 10 of the Evidence Act makes the confessional statement of a co-accused admissible in evidence. In Bhaw andas Vs. State of R ajasthan reported in (1974) 4 SCC 611 , it has been held that in cases of conspiracy better evidence than the acts and statements of co-conspirator in pursuance of a conspiracy is hardly ever available. The necessity to look for independent evidence in such type of cases is, therefore, not a rule of law but a rule of prudence. How much value and weightage can be given to such confession of a co- accused would depend on the facts and circumstances of each case. 46 . In the instant case, the motive of appellant Radhanath Yadav to commit the crime is apparent, which is to vacate the tenanted premises. The circumstances such as (i) existence of litigations (ii) holding out threat to the deceased and her son, (iii) creating disturbances by the appellant in enjoyment of the tenanted premises by the deceased and her employees,
(iv) conduct of the appellant in compelling the deceased to shift her residence (v) holding out threat to the employees of the deceased and her relatives clearly pointing towards extreme ill feeling and hatred of the appellant towards the deceased, (vi) the CCTV footage which not only established that Bishnu Goala had committed the murder but also the fact the he had gone to the flat of the deceased on the day of occurrence with Crl. Appeal No. 23/2014 Crl. Appeal (J) No. 140/2013 Page 32 of 33 the clear intention and planning to kill the deceased, are few of such strong circumstances, the existence of which did afford a reasonable ground for the court to believe that Radhanath Yadav had taken the extreme step to eliminate the deceased Kanchan Devi Chajjar by engaging Bishnu Goala so as to get back the property. If there was any doubt about the involvement of Radhanath Yadav in the conspiracy, the same also stood conclusively resolved from the confession made by Bishnu Goala. 47 . In a case of circumstantial evidence, the court must consider the cumulative effect of the totality of materials available on record before arriving at a finding of guilt. In view of what has been discussed here-in- before, we are of the considered opinion that there is a complete chain of evidence leading to the conclusion that none other than appellant Radhanath Yadav had conspired with Bishnu Goala to kill Kanchan Devi Chajjar. As such, we are of the view that the conviction of both the appellants is based on proper evidence available on record and hence, the impugned judgment and order does not call for any interference from this Court.
48 . For the reasons stated here-in above, we hold that there is no merit in these appeals and the same are accordingly dismissed.
JUDGE CHIEF JUSTICE GS Crl. Appeal No. 23/2014 Crl. Appeal (J) No. 140/2013 Page 33 of 33