Madhya Pradesh High Court
Brajbhan Singh Baghel vs The State Of Madhya Pradesh on 24 February, 2021
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
THE HIGH COURT OF MADHYA PRADESH 1
CRR 1561 of 2020
Brajbhan Singh Baghel and Anr. Vs. State of MP
Gwalior, Dated :24/02/2021
Shri SK Tiwari, Counsel for the applicants.
Shri BPS Chauhan, Public Prosecutor for the respondent/
State.
This criminal revision under Section 397/401 of CrPC has been filed against the order dated 07/12/2019 passed by Second Additional Sessions Judge, Bhind in Sessions Trial No.08/2017, thereby framing charges under Sections 4(2)(3) & 6 of Pre- conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 and Sections 23, 25 r/w Section 120-B of IPC.
The necessary facts for disposal of present revision in short are that on 30/08/2016, an information was received from informer that Smt. Neeraj Pal, resident of Vankhandeshwar Road, opposite of Chhoti Masjid is involved in illegal abortion of pregnant women with the help of her husband Raju Pal. On the basis of said information, a team comprising of SDM, Bhind, Naib Tahsildar, Dr. Smt.Ashu Mishra, Shri Ajay Soni (FSL Deptt.), Sub-Inspector Smt. Deepshiksha, Police Photographer Sunil Girwal was constituted and they went to the aforesaid place. When they entered in the house, they found that one person is standing, who informed his name as Raju Pal. On the first floor of the house, the team found that three ladies were inside the room and one lady was standing outside the room. The lady standing outside the room, disclosed her name as THE HIGH COURT OF MADHYA PRADESH 2 CRR 1561 of 2020 Brajbhan Singh Baghel and Anr. Vs. State of MP Seema and three ladies who were inside the room disclosed their names as Smt. Neeraj Pal, Munni Bai and a minor girl ''X''. ''X'' was lying on the bed, whereas Munni Bai was sitting near her and Smt.Neeraj Pal was standing near her bed and one tray containing some medical instruments and medicines was also kept there. When the team enquired from Smt. Neeraj Pal, she could not give any satisfactory answer. ''X'' informed that she had an affair with her relative Neeraj Jamdar and he had committed rape on her against her will as a result of which, she became pregnant. For illegal abortion, Smt. Neeraj Pal demanded a sum of Rs.11,000/- and an amount of Rs.8,000/- was deposited in advance. "X'' was called for abortion and a tablet was given to ''X''. When the medical certificate as well as the registration was sought from Smt. Neeraj Pal, then she could not produce the same. Dr. Anshu Mishra, who was a member of said Team, informed that the instruments and medicines which were kept in the tray are used for abortion purposes. ''X'' was sent to Government Hospital, Bhind along with her mother and a case for the above-mentioned offences was registered.
During the course of investigation, memorandum of Raj Pal was recorded and on the basis of information given by Raj Pal, the present applicants have been made as accused and after concluding the investigation, the police has filed the charge sheet.
By the impugned order dated 07/12/2019 passed by Second THE HIGH COURT OF MADHYA PRADESH 3 CRR 1561 of 2020 Brajbhan Singh Baghel and Anr. Vs. State of MP Additional Sessions Judge, Bhind in Sessions Trial No. 08/2017, charges for the above-mentioned offences have been framed.
It is submitted by the Counsel for the applicants that there is no admissible evidence against the applicants. They cannot be made as accused on the basis of confessional statement recorded under Section 27 of the Indian Evidence Act.
Per contra, the Counsel for the State has supported the order passed by the Court below.
Heard the learned Counsel for the parties.
So far as the contention of the Counsel for the applicants that the case is based on solitary circumstance of confessional statement made by Raj Pal is concerned, the same is misconceived.
Section 30 of the Indian Evidence Act reads as under:-
''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 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.]'' 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 THE HIGH COURT OF MADHYA PRADESH 4 CRR 1561 of 2020 Brajbhan Singh Baghel and Anr. Vs. State of MP 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 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 persons admits guilty to the fullest extent, and exposes himself to the pains and penalties provided for his guilt, there is a guarantee for his truth. 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 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 THE HIGH COURT OF MADHYA PRADESH 5 CRR 1561 of 2020 Brajbhan Singh Baghel and Anr. Vs. State of MP conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence. This position has been clearly explained by this Court in Kashmira Singh v. The State of Madhya Pradesh, AIR (1952) SC159. The exact scope of Section 30 was discussed by the Privy Council in the case of Bhubani Sahu v. R, AIR (1949) PC 257. The relevant extract from the said decision which has become locus classicus reads as follows: (AIR p.260, para 9) Section 30 applies to confessions, and not to statements which do not admit the guilt of the confessing party........But a confession of a co-accused is obviously evidence of a very weak type.....It is a much weaker type of evidence than the evidence of an approver which is not subject to any of those infirmities. Sec. 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, make 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 in the case; it can be put into the scale and weighed with the other evidence. The confession of a co-accused can be used only in support of other evidence and cannot be made the foundation of a conviction".
32. Kashmira Singh's principles were noted with approval by a Constitution Bench of this Court in Haricharan Kurmi v. State of Bihar, [1964] 6 SCR 623. It was noted that the basis on which Section 30 operates is that if a person makes a confession implicating himself, that may suggest that the maker of the confession is speaking the truth. Normally, if a statement made by an accused person is found to be voluntary and it amounts to a confession in the sense that it implicates the maker, it is not likely that the maker would implicate himself untruly.
So Section 30 provides that such a confession may be taken into consideration even against the co-accused who is being tried along with the maker of the confession. It is significant, however, that like other evidence which is produced before the Court, it is not obligatory on the court to take the confession into account. When evidence as defined by the Evidence Act is produced before the court, it is the duty of the Court to consider that evidence. What weight should be attached to such evidence is a matter in THE HIGH COURT OF MADHYA PRADESH 6 CRR 1561 of 2020 Brajbhan Singh Baghel and Anr. Vs. State of MP the discretion of the court. But the court cannot say in respect of such evidence that it will just not take that evidence into account. Such an approach can, however, be adopted by the court in dealing with a confession because Section 30 merely enables the court to take the confession into account. Where, however, the court takes it into confidence, it cannot be faulted. The principle is that the court cannot start with confession of a co-accused person; it 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 evidences, 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 some other evidence. That is the true effect of the provision contained in Section 30. We may note that great stress was laid down on the so-called retraction of the makers of the confession. Apart from the fact that the same was made after about two years of the confession. PWs 81 and 82 have stated in court as to the procedures followed by them, while recording the confession. The evidence clearly establishes that the confessions were true and voluntary. That was not the result of any tutoring, compulsion or pressurization. As was observed by this Court in Shankaria v. State of Rajasthan, (1978) Crl.LJ. 1251, the court is to apply double test for deciding the acceptability of a confession i.e. (i) whether the confession was perfectly voluntary and
(ii) if so, whether it is true and trustworthy. Satisfaction of the first test is a sine qua non for its admissibility in evidence. If the confession appears to the court to have been caused by any inducement, threat or promise, such as mentioned in Section 24 of the Evidence Act, it must be excluded and rejected brevi manu. If the first test is satisfied, the court must before acting upon the confession reach the finding that what is stated therein is true and reliable. The Judicial Magistrate, PWs. 81 and 82 have followed the requisite procedure. It is relevant to further note that complaint was lodged before the Magistrate before his recording of the confessional statement of accused Md. Gulzar. The complaint was just filed in court and it was not moved. The name of the lawyer filing the complaint could not be ascertained either. This fact has been noted by the Designated Court.'' Thus, where the accused persons are being tried together and an THE HIGH COURT OF MADHYA PRADESH 7 CRR 1561 of 2020 Brajbhan Singh Baghel and Anr. Vs. State of MP inculpatory confession has been made by a co-accused admitting his guilt to the fullest extent, exposing himself to the penalties which are provided for his guilt, then the confession of the co-accused under Section 30 of the Evidence Act can be considered a circumstance against his fellow accused. However, it is true that self-inculpatory confession of the co-accused is not a substantive piece of evidence against another co-accused and it can be considered as a corroborative material. Thus, it means that there should be some substantive evidence against the co-accused so as to consider the corroborative self-inculpatory confessional statement made by a co-accused thereby implicating the another co-accused.
If the facts of the present case are considered, the police has recorded the statement of one Pankaj Singh, who has specifically stated that Rajupal is also an Insurance agent and accordingly, he had gone to his house where he saw that the applicants were also sitting and in front of this witness, Rajupal had given envelopes to the applicants and other persons who were present and informed that only one case of abortion was sent by them. However, the envelopes contain their commission and also informed that in case if more number of cases of abortion are sent, then he would increase the commission. Smt. Sabnam Khan, Hussain Khan, Smt. Salma and Rahmat Khan have specifically stated that Smt. Neeraj Pal, wife of Rajupal was treating the lady patients in her house. THE HIGH COURT OF MADHYA PRADESH 8
CRR 1561 of 2020 Brajbhan Singh Baghel and Anr. Vs. State of MP Thus, it is clear that there is sufficient evidence available on record that Rajupal and his wife Smt.Neeraj Pal were engaged in treating the lady patients including doing abortion in illegal manner. Both the persons were not having any medical registration nor they were having any degree. At the time of search, not only Rajupal and Smt. Neeraj Pal were found in their house but one minor patient was also found, who had come for abortion purposes. Medical instruments and medicines which are used for abortion, were also found in the room. There is an evidence of Pankaj Singh, who has stated that Rajupal had given commission to the present applicants in his presence for bringing the cases of abortion.
Under these circumstances, this Court is of the considered opinion that prima facie there is sufficient material for prosecution of the applicants. Accordingly, no case is made out for interference in the impugned order.
Ex consequenti, the order dated 07/12/2019 passed by Second Additional Judge, Bhind in Sessions Trial No.08/2017 is hereby affirmed.
The revision fails and is hereby dismissed.
(G.S.Ahluwalia) Judge MKB MAHENDRA KUMAR BARIK VALSALA 2021.03.01 10:41:46 +05'30' VASUDEVAN 2018.10.26 15:14:29 -07'00'