Chattisgarh High Court
Mohit Ram And Ors vs State Of Chhattisgarh on 17 November, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
CRA-89-2013 & CRA-229-2013
Page 1 of 26
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 89 of 2013
Horidas Sahu, Son of Bhakturam Sahu, aged about 32 years, Resident of
Village Kutulbod, Bhatagaon, Police Station Lalbagh, District Rajnandgaon,
(Chhattisgarh)
---- Appellant
Versus
State of Chhattisgarh, through Police Station Lalbagh, District Rajnandgaon,
(Chhattisgarh)
---- Respondent
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For Appellant : Mr. Shobit Koshta, Advocate For Respondent-State : Mr. Anmol Sharma, Panel Lawyer
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WITH Criminal Appeal No. 229 of 2013
1. Mohit Ram, Son of Kripa Ram Sahu, aged about 20 years, Resident of Village Kutulbod, Bhatagaon, Police Station Lalbag, District Rajnandgaon (Chhattisgarh),
2. Khuman Das, Son Kripa Ram Sahu, aged about 33 years, Resident of Village Kutulbod, Bhatagaon, Police Station Lalbag, District Rajnandgaon (Chhattisgarh),
3. Bhukhan Das, Son of Kripa Ram Sahu, aged about 24 years, Resident of Village Kutulbod, Bhatagaon, Police Station Lalbag, District Rajnandgaon (Chhattisgarh),
4. Kunjbai, Wife of Kripa Ram Sahu, aged about 57 years, Resident of Village Kutulbod, Bhatagaon, Police Station Lalbag, District Rajnandgaon (Chhattisgarh)
---- Appellants Versus State of Chhattisgarh, through Police Aarakshi Kendra, Lalbag, District Rajnandgaon, (Chhattisgarh)
---- Respondent CRA-89-2013 & CRA-229-2013 Page 2 of 26
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For Appellants : Mr. Rajat Agrawal, Advocate For Respondent-State : Mr. Anmol Sharma, Panel Lawyer
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Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Rakesh Mohan Pandey, JJ Judgment on Board (17.11.2022) Sanjay K. Agrawal, J (1) Regard being had to the similitude of the questions of fact and law involved; both these appeals are clubbed together being arising out of a common judgment dated 16.01.2013, passed in Sessions Trial No.22 of 2011 (State of Chhattisgarh vs. Mohit Ram and 04 others), by the Court of learned 1st Additional Sessions Judge, District Rajnandgaon (C.G.) and on the joint request of learned counsel for the parties, same are analogously heard and are being decided by this common judgment.
(2) Criminal Appeal No. 89/2013 has been filed by the accused-appellant, namely, Horidas Sahu (A-5) under Section 374(2) of Cr.P.C. questioning the impugned judgment of conviction and order of sentence dated 16.01.2013, whereby he has been convicted and sentenced to undergo as under:
Conviction Sentence U/s. 376 of IPC R.I. for 10 years with fine of Rs.10,000/- and, in default of fine, additional R.I. for 03 months. (3) Criminal Appeal No.229 of 2013 has been filed by the accused-
appellants, namely, Mohit Ram (A-1), Khuman Das (A-2), Bhukhan Das (A-
3) and Kunjbai (A-4) under Section 374(2) of Cr.P.C. questioning the same impugned judgment of conviction and order of sentence dated 16.01.2013, whereby they all have been convicted and sentenced to undergo as under:
CRA-89-2013 & CRA-229-2013 Page 3 of 26 Conviction Sentence U/s. 302/34 of IPC R.I. for life, with fine of Rs.10,000/- each and, in default of fine, additional R.I. for 03 months each.
U/s. 201 of IPC R.I. for 07 years with fine of Rs.10,000/- each and, in default of fine, additional R.I. for 03 months each.
(4) The case of the prosecution, in brief, is that prior to or near about 10.03.2010, at Village Kutulbod, Bhatagaon, within the ambit of Police Station Lalbag, accused-appellant Horidas Sahu (A-5), on the pretext of marriage, has committed sexual intercourse (rape) with the prosecutrix/deceased, due to which she become pregnant and, thereby, committed offence under Section 376 of IPC and, when prosecutrix/deceased suffered labour pain, accused-appellants, namely, Mohit Ram (A-1), Khuman Das (A-2), Bhukhan Das (A-3) and Kunjbai (A-4), being the family members of the prosecutrix/deceased, in furtherance of their common object/intention, committed her murder by strangulation and, thereafter, in order to conceal the aforesaid fact of committing murder of prosecutrix/deceased, accused-appellants, namely, Mohit Ram (A-1), Khuman Das (A-2), Bhukhan Das (A-3) and Kunjbai (A-4), tighten the dead-
body of prosecutrix/deceased by means of wire and screwdriver with a sack (bori), in which stones were filled, and threw in a well and, thereby, committed offences under Sections 302, 201 & 34 of IPC. (5) The further case of the prosecution, in nutshell, is that: since 10.03.2010, the prosecutrix/deceased went missing from the house of accused-appellants, namely, Mohit Ram (A-1), Khuman Das (A-2), Bhukhan Das (A-3) and Kunjbai (A-4), but they did not lodge any report till 12.03.2010; on 12.03.2010, accused-appellant Khuman Das (A-2) gave a written CRA-89-2013 & CRA-229-2013 Page 4 of 26 complaint at Police Station Lalbag, District Rajnandgaon (CG) that his sister (prosecutix/deceased) went missing, upon which police registered missing report (Ex.P/06); thereafter, again on 15.03.2010, accused-appellant Khuman Das (A-2) submitted a written application before the police intimating that since 10.03.2010 his sister (prosecutrix/deceased) went missing and while he alongwith his other family members were searching the whereabouts of prosecutrix/deceased, on 15.03.2010, his mother, accused-appellant, Kunjbai (A-4) informed him that the dead-body of prosecutrix/deceased is floating in the well of Kaushal Ram Sahu, upon which, the police registered marg intimation (Ex.P/05), proved by Sudarshan Singh (PW-03) and, thereafter, marg enquiry was carried out; during the course of marg enquiry, it was revealed that though the prosecutrix/deceased was unmarried, but she was carrying illicit pregnancy of 7-8 months and, in order to hide the aforesaid fact, some unknown accused person committed her murder, tighten the dead-body by means of stones and threw it in a well, pursuant to which, the police registered crime against some unknown person and investigation was started; thereafter, during the course of investigation it was further revealed that accused-appellant Horidas Sahu (A-5) was having love affair with the prosecutrix/deceased and, he on the pretext of marriage, used to commit sexual intercourse with her, due to which prosecutrix/deceased became pregnant, which fact was known to the brother and mother of the prosecutrix/ deceased, but on account of fear and shame, the said fact was hidden/concealed at family level by them; thereafter, on 10.03.2010, at about 12:00 in the night, when prosecutrix/deceased suffered from labour pain, accused-appellant Mohit Ram (A-1) committed her murder by strangulation, due to which prosecutrix/deceased and her unborn child in fetus both died CRA-89-2013 & CRA-229-2013 Page 5 of 26 and, thereafter, accused-appellants, namely, Mohit Ram (A-1), Khuman Das (A-2), Bhukhan Das (A-3) and Kunjbai (A-4), in furtherance of their common object/intention and in order to hide the aforesaid act of murder of prosecutrix/deceased, tighten the left leg of the dead-body of prosecutrix/deceased with a sack (bori), in which stones were filled, by means of centering wire and screwdriver and thew it in a well situated in the fields of Kaushal Ram Sahu; thereafter, the police registered FIR (Ex.P/35) vide Crime No.241/2010 for offence under Sections 302, 201, 34 & 493 of IPC against all the accused-appellants; spot map was prepared vide Ex.P/02; thereafter, notice under Section 175 of CrPC were sent vide Ex.P/08 and inquest proceedings were conducted vide Ex.P/09.
(6) Thereafter, the dead-body of the prosecutrix/deceased was sent for postmortem examination vide Ex.P/03A, which was conducted by Dr. Shivnarayan Manjhi (PW-02) and in the postmortem report (Ex.P/3) it has been opined that the cause of death of prosecutrix/deceased remains opens, male fetus is present and Dr. Shivnarayan Manjhi (PW-02) advised for DNA test, for which clavicle bone of deceased and long bone of fetus were preserved and was handed over to police constable, but the nature of death could be antemortem or postmortem. Furthermore, no DNA test, as advised by Dr. Shivnarayan Manjhi (PW-02), was conducted, as Sushri Yogita Khaparde (PW-10) and B.P. Sharma (PW-11), who are Investigating Officers in the instant case, have clearly stated that no proceedings to conduct DNA test has been initiated by them. But, in order to ascertain the cause of death of prosecutrix/deceased, her bone and water of well were sent for diatom test to State Forensic Science Laboratory, Raipur vide Ex.P/39, in which it has been opined that as the bone of the prosecutrix/deceased is broken it is not CRA-89-2013 & CRA-229-2013 Page 6 of 26 worthy for diatom test, hence return in original vide FSL report (Ex.P/40). Thereafter, from the dead-body of deceased, sack (bori), 07 pieces of stones and wire were seized vide Ex.P/10. Thereafter, all the accused-appellants were arrested vide Ex.P/26 to 30. Pursuant to memorandum statement of accused-appellants- Mohit Kumar Sahu (Ex.P/12), screwdriver was seized vide Ex.P/15, similarly on the basis of memorandum statement of accused- Khuman Das (Ex.P/13), sack (bori) has been seized vide Ex.P/17 and pursuant to memorandum statement of accused- Bhukhan Das (Ex.P/14), centering wire has been seized vide Ex.P/16. Further, 05 pieces of stones were also seized from the place of occurrence/spot vide Ex.P/24. Further, from the dead-body of deceased, pieces of visara (i.e. pieces of stomach, lungs, liver, spleen, kidney and small intestine etc.), clothes (suit, paint, underwear etc.) and sample of salted water were also seized vide Ex.P/34. Thereafter, all the seized articles were sent for FSL examination vide Ex.P/41 to P/43. But, in the FSL reports (Ex.P/47 & P/48) it has been stated that no chemical/poison has been found in the pieces of visara (i.e. pieces of stomach, lungs, liver, spleen, kidney and small intestine etc.) of the deceased and in the sample of salted water, which were seized vide Ex.P/34 and the centering wires [one which was seized from the dead-body of the deceased vide Ex.P/10 and another which was seized pursuant to memorandum statement of accused- Bhukhan Das (Ex.P/14) vide Ex.P/16] both are found to be similar/same iron wires and, further, the soil on the pieces of stones [set of 07 pieces which were seized from the sack (bori) tighten with the dead- body of the deceased vide Ex.P/10 and another set of 05 which were seized from the place of occurrence/spot vide Ex.P/24] both are found to be identical/same. Thereafter, statement of witnesses were recorded and after CRA-89-2013 & CRA-229-2013 Page 7 of 26 due investigation, the police filed charge-sheet in the Court of Chief Judicial Magistrate, Rajnandgaon (CG) and, thereafter, the case was committed to the Court of Sessions for hearing and disposal in accordance with law. The appellants/accused persons abjured their guilt and entered into defence. (7) The prosecution in order to prove its case examined as many as 11 witnesses and exhibited 51 documents whereas, on the other hand, accused persons examined 02 witnesses [Smt. Nirmala Bai (DW-01) and Tekuram Sahu (DW-02] and exhibited 02 documents (Ex.D/01 & Ex.D/02) in support of their defence.
(8) The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to convict accused-appellant, namely, Horidas Sahu (A-5) for offence under Section 376 of IPC and sentenced him as mentioned hereinabove and further convicted accused- appellants, namely, Mohit Ram (A-1), Khuman Das (A-2), Bhukhan Das (A-3) and Kunjbai (A-4) for offence under Sections 302/34 & 201 of IPC and sentenced them as mentioned hereinabove vide impugned judgment dated 16.01.2013, in S.T. No.22/2011, against which these 02 criminal appeals have been preferred questioning the legality, validity and correctness of aforesaid impugned judgment of conviction and orders of sentence dated 16.01.2013.
(9) Mr. Shobit Koshta, learned counsel appearing for the accused- appellant Horidas Sahu (A-5) in CRA-89-2013 submits that the learned trial Court is absolutely unjustified in convicting the appellant for the offence under Section 376 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. There is no legal and admissible evidence available on record with regard to existence of love affair between the CRA-89-2013 & CRA-229-2013 Page 8 of 26 accused-appellant Horidas and prosecutrix/deceased and that appellant accused- Horidas (A-5) committed sexual intercourse with the prosecutrix/deceased on the pretext of marriage. Indeed, accused-appellant Horidas (A-5) has been convicted only on the basis of memorandum statement of co-accused, which is a weak piece of evidence in view of Section 30 of the Indian Evidence Act, 1872. Further, though bones of prosecutrix/deceased and male fetus have been preserved for the purpose of DNA test and handed over to the police constable by Dr. Shivnarayan Manjhi (PW-02), but no DNA test has been conducted, which ought to have been conducted by the prosecution in order to ascertain the pregnancy of the prosecutrix/deceased. Hence, the appeal filed by accused-appellant Horidas Sahu (A-5) deserves to be allowed and he is liable to be acquitted for the offence under Section 376 of IPC.
(10) Mr. Rajat Agrawal, learned counsel appearing for accused-appellants, namely, Mohit Ram (A-1), Khuman Das (A-2), Bhukhan Das (A-3) and Kunjbai (A-4) in CRA-229-2013 submits that the learned trial Court has committed grave legal error in convicting the accused-appellants for offence under Sections 302/34 & 201 of IPC on the basis of inadmissible and weak piece of evidence, such as marg intimation (Ex.P/05) and their memorandum statements (Ex.P/12 to P/14). Further, the learned trial Court has not recorded a finding that the death of the prosecutrix-deceased is homicidal in nature, which is sine qua non for convicting a person for offence under Section 302 of IPC. Hence, the appeal filed by accused-appellants, namely, Mohit Ram (A-1), Khuman Das (A-2), Bhukhan Das (A-3) and Kunjbai (A-4) deserves to be allowed and they are liable to be acquitted for the offence under Section 302/34 & 201 of IPC.
CRA-89-2013 & CRA-229-2013 Page 9 of 26 (11) Per-contra, Mr. Anmol Sharma, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. In the instant case, firstly the appellant- Horidas (A-5) developed illicit relationship with the innocent prosecutrix/deceased and, thereafter, on the pretext of marriage committed sexual intercourse with her, due to which she became pregnant; thereafter, when prosecutrix/deceased was carrying eight months' pregnancy and suffered labour pain, the other accused-appellants namely, Mohit Ram (A-1), Khuman Das (A-2), Bhukhan Das (A-3) and Kunjbai (A-4) committed her murder by strangulation and threw her dead-body into well. Thus, the learned trial Court has rightly convicted the appellants for aforementioned offences, as such, both the appeals filed by the accused-appellants deserve to be dismissed. (12) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.
(13) In the instant case, it is the case of the prosecution that: accused- appellant- Horidas (A-5) in CRA-89-2013 developed illicit relationship with the innocent prosecutrix/deceased and, thereafter, on the pretext of marriage committed sexual intercourse with her, due to which she became pregnant; thereafter, when prosecutrix/deceased was carrying eight months' pregnancy and suffered labour pain, accused-appellants namely, Mohit Ram (A-1), Khuman Das (A-2), Bhukhan Das (A-3) and Kunjbai (A-4) in CRA-229-2013 committed her murder by strangulation and threw her dead-body into well situated in the fields of Kaushal Ram Sahu. Therefore, it is a case where firstly rape was committed by accused-appellant Horidas (A-5) with the CRA-89-2013 & CRA-229-2013 Page 10 of 26 prosecutrix/deceased and when she was about to deliver her baby, accused- appellant Mohit Ram (A-1), being her brother, committed her murder by strangulation and, thereafter, with the help of accused-appellants namely, Khuman Das (A-2), Bhukhan Das (A-3) and Kunjbai (A-4), other family members of deceased, threw the dead-body of deceased into the well. The the questions before us is: whether the learned trial Court is justified in convicting accused-appellant Horidas (A-5) for offence under Section 376 of IPC and whether the learned trial Court is justified in convicting the accused- appellants namely, Mohit Ram (A-1), Khuman Das (A-2), Bhukhan Das (A-3) and Kunjbai (A-4) for offence under Section 302/34 & 201 of IPC ?
CRIMINAL APPEAL NO.89 OF 2013 (14) In order to prove offence under Section 376 of IPC against accused- appellant Horidas (A-5), the prosecution has examined Dr. Dinesh Sahu (PW-05), who has visited the house of the prosecutrix/deceased while she was residing with Mohit Ram (A-1), Khuman Das (A-2), Bhukhan Das (A-3) and Kunjbai (A-4) and has noticed that prosecutrix/deceased was carrying pregnancy for fairly long time and he advised to send prosecutrix/deceased to a gynecologist, as he was not an expert doctor in that field. Thereafter, on 10.03.2010 the prosecutrix/deceased went missing and pursuant to the marg. intimation registered vide Ex.P/05 by accused-appellant Khuman Das (A-2), the dead-body of prosecutrix-deceased was recovered on 15.03.2010 and, thereafter, postmortem was conducted on 16.03.2010, whereby it has been opined by Dr. Shivnarayan Manjhi (PW-02) that cause of death of prosecutrix/deceased remains opens, male fetus is present and she advised for DNA test, for which clavicle bone of deceased and long bone of fetus were preserved, but the nature of death could be antemortem or postmortem.
CRA-89-2013 & CRA-229-2013 Page 11 of 26 Apart from it, pieces of visara (i.e. pieces of stomach, lungs, liver, spleen, kidney and small intestine etc.) were also preserved for chemical analysis and further bones of deceased were also preserved for the purpose of diatom test to ascertain the cause of death. Further, Dr. Shivnarayan Manjhi (PW-02) did not tell about any recent intercourse by the appellant, but has clearly stated in Para-7F that bone of the deceased and male fetus were preserved for DNA test and it was seized and handed over to police constable for further action. Sushri Yogita Khaparde (PW-10), who is Inspector and Investigating Officer in the instant case, in Para-15 of her cross-examiantion before the Court has clearly stated that for determining paternity of the pregnancy of the deceased by doing DNA test, she did not took any action. Similarly, B.P. Sharma (PW-11), who is Sub-Inspector and Investigating Officer in the instant case, in Para-6 of his cross-examination before the Court has also stated that with regard to DNA test and for determining the paternity, he has not taken any action. As such, though the best material for conducting DNA test i.e. bones of deceased and male fetus were preserved and handed over by Dr. Shivnarayan Manjhi (PW-02) to police constable, but for the reasons best known to the prosecution the DNA test was not conducted and paternity of pregnancy of the deceased could not be determined and, therefore, it is not clear whether deceased became pregnant out of the illicit relationship developed by accused-appellant Horidas (A-5). Apart from this, there is no other legal and admissible evidence available on record to connect the appellant- Horidas for offence under Section 376 of IPC, except the memorandum statements of co- accused persons i.e. Mohit Ram (A-1), Khuman Das (A-2), Bhukhan Das (A-
3), which is very weak piece of evidence in view of Section 30 of the Indian CRA-89-2013 & CRA-229-2013 Page 12 of 26 Evidence Act, 1872.
(15) Now, the question would be whether it is justifiable to hold appellant- Horidas (A-5) guilt for offence under Section 376 of IPC with the aid of Section 30 of the Indian Evidence Act, 1872, which states 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."
(16) A careful perusal of the aforesaid provision would show that the object of this provision is that where an accused person unreservedly confesses his own guilt, and at the same time implicates another person who is jointly tried with him for the same offence, his confession may be taken into consideration against such other person as well as against himself, because the admission of his own guilt operates as a sort of sanction, which, to some extent, takes the place of the sanction of an oath and so affords some guarantee that the whole statement is a true one. When a person admits his guilt to the fullest extent, and exposes himself to the pains and penalties provided therefore, there is a guarantee for his truth. The Court could use the confession of one accused against another accused only if the following two conditions are fulfilled: -
1. The co-accused should have been charged in the same case along with the confessor.
2. He should have been tried together with the confessor in the same trial.
CRA-89-2013 & CRA-229-2013 Page 13 of 26 (17) Section 30 of the Evidence Act came up for consideration before their Lordships of the Supreme Court in Haricharan Kurmi vs. State of Bihar 1 (Constitution Bench) in which their Lordships have considered the probative value of confession of co-accused and its use how to be made in joint trial. In Haricharan Kurmi (supra), their Lordships clearly held that 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 and observed as under: -
"11. ... The basis on which this provision is founded 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, and so, S. 30 provides that such a confession may be taken into consideration even against a co- accused who is being tried along with the maker of the confession. There is no doubt that a confession made voluntarily by an accused person can be used against the maker of the confession, though as a matter of prudence criminal courts generally require some corroboration to the said confession particularly if it has been retracted. With that aspect of the problem, however, we are not concerned in the present appeals. When S. 30 provides that the confession of a co-accused may be taken into consideration, what exactly is the scope and effect of such taking into consideration is precisely the problem which has been raised in the present appeals. It is clear that the confession mentioned in S. 30 is not evidence under S. 3 of the Act. ...
12. ... It would be noticed that as a result of the provisions contained in S. 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 S. 30, the fact remains that it is not evidence as defined by S. 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 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 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 is 1 AIR 1964 SC 1184 CRA-89-2013 & CRA-229-2013 Page 14 of 26 S. 30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh, 1952 SCR 526: (AIR 1952 SC 159) where the decision of the Privy Council in Bhuboni Sahu's case, 76 Ind App 147 (AIR 1949 PC 257) has been cited with approval.
16. ... As we have already indicated, it has been a recognised principle of the administration of criminal law in this country for over half a century that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible, from the said evidence. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt. That is precisely what has happened in these appeals."
(18) The principle of law laid down in Haricharan Kurmi (supra) has been followed recently by the Supreme Court in Dipakbhai Jagdishchandra Patel vs. State of Gujarat and another2. It has also been held by their Lordships that confession of an accused person is not evidence, it cannot be made tile foundation of a conviction and can only be used in support of other evidence (see Kashmira Singh v. State of Madhya Pradesh 3, Nathu v. State of Uttar Pradesh4 and Govt. of NCT of Delhi v. Jaspal Singh5.) (19) In the matter of Surinder Kumar Khanna v. Intelligence Officer, Directorate of Revenue Intelligence6, their Lordships of the Supreme Court have summarised the law relating to scope of Section 30 of the Evidence Act and observed as under: -
"11. The law laid down in Kashmira Singh (supra) was approved by a Constitution Bench of this Court in Haricharan Kurmi v. State of Bihar (supra) wherein it was observed: (Haricharan case (supra), AIR p.1188, 2 (2019) 16 SCC 547 3 AIR 1952 SC 159 4 AIR 1956 SC 56 5 (2003) 10 SCC 586 6 (2018) 8 SCC 271 CRA-89-2013 & CRA-229-2013 Page 15 of 26 para 12) "12. 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 is inclined 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 v. Lalit Mohan Chuckerbutty7 a confession can only be used to "lend assurance to other evidence against a co-accused". In Periaswami Moopan, In re8 Reilly, J., observed that the provision of Section 30 goes not further than this: (SCC OnLine Mad) '... 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. R.9 the Privy Council has expressed the same view. Sir John Beaumont who spoke for the Board, observed that: (SCC OnLine PC) '... 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 in 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 7 ILR (1911) 38 Cal 559 at p. 588 8 1930 SCC OnLine Mad 86 : ILR (1931) 54 Mad 75 at p. 77 9 1949 SCC OnLine PC 12 : (1948-49) 76 IA 147 at p. 155 CRA-89-2013 & CRA-229-2013 Page 16 of 26 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 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 M.P. (supra) where the decision of the Privy Council in Bhuboni Sahu case (supra) has been cited with approval."
12. The law so laid down has always been followed by this Court except in cases where there is a specific provision in law making such confession of a co-accused admissible against another accused. 10 (20) Reverting to the facts of the case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court in Haricharan Kurmi (supra), Dipakbhai Jagdishchandra Patel (supra) and Surinder Kumar Khanna (supra) and considering the provisions contained in Section 30 of the Evidence Act, it is quite vivid that confessional statement of co-accused is a very weak piece of evidence, unless other circumstantial evidence or ocular evidence is available, conviction cannot be rested only on the confessional statement of the co-accused with the aid of Section 30 of the Evidence Act, as it requires corroboration from other evidence and unless there is other evidence, ocular or circumstantial evidence available on record, merely on the basis of confessional statement of co-accused, conviction with the aid of Section 30 of the Evidence Act cannot be made by the courts.
(21) Turning to the facts of the case finally in light of aforesaid principle of law laid down by their Lordships of Supreme Court in aforementioned cases, 10 For example: State v. Nalini, (1999) 5 SCC 253, P-424 & 704 : 1999 SCC (Cri) 691 CRA-89-2013 & CRA-229-2013 Page 17 of 26 it is quite vivid that since DNA test of the bones of the prosecutrix/deceased and that of male fetus was not conducted by the prosecution, though advised by Dr. Shivnarayan Manjhi (PW-02) and except the confessional statements/ memorandum statements of the co-accused persons, which is very weak piece of evidence, there is no other evidence available on record to establish that it was appellant- Horidas (A-5), who on the pretext of marriage has committed sexual intercourse with the prosecutrix, due to which she become pregnant, the learned trial Court has committed grave legal error in convicting the appellant- Horidas (A-5) for offence under Section 376 of IPC. Accordingly, the conviction of the appellant- Horidas (A-5) for offence under Section 376 of IPC and sentenced imposed upon him by the learned trial Court vide impugned judgment dated 16.01.2013 is hereby set aside. Appellant- Horidas (A-5) is acquitted from the charges under Section 376 of IPC. He be released from jail forthwith if his detention is not required in any other matter/case. Since, appellant- Horidas (A-5) is on bail, he need not surrender before the trial Court. However, his bail bond shall remain in force for a period of six months in view of provision contained in Section 437-A of CrPC.
(22) Consequently, Criminal Appeal No.89 of 2013 stands allowed.
CRIMINAL APPEAL NO.229 OF 2013 (23) The first contention which the appellants- Mohit Ram (A-1), Khuman Das (A-2), Bhukhan Das (A-3) and Kunjbai (A-4) have raised is that the learned trial Court did not hold the death of the prosecutrix/deceased was homicidal in nature, which is sine qua non for convicting the appellants for offence under Section 302 of IPC.
(24) The appellants in this appeal have been convicted by the trial Court for CRA-89-2013 & CRA-229-2013 Page 18 of 26 offence punishable under Section 302 of IPC holding that the death of deceased was culpable homicide under Section 299 of IPC which amounted to murder under Section 300 of IPC and is punishable under Section 302 of IPC. For holding an accused guilty of murder, prosecution has first to prove that it is a culpable homicide. An accused will come under the mischief of Section 299 only when the act done by him has caused death. (25) At this stage, it would be relevant to notice the definition of 'culpable homicide' which is provided under Section 299 of IPC as under :-
"299. Culpable homicide. - Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
(26) Homicide is the killing of a human being by a human being. It is either lawful or unlawful. Unlawful homicide includes culpable homicide not amounting to murder under Section 299 of IPC and murder under Section
300. Halsbury classifies homicide as follows :-
"The term "homicide" is used to describe the killing of a human being by a human being. Such a killing may be lawful or it may be unlawful and criminal. Unlawful homicide includes murder, manslaughter, causing death by dangerous driving, killing in pursuance of a suicide pact, and infanticide."
(27) "Homicide", as derived from latin, literally means the act of killing a human being. Under Section 299 of the IPC, homicide becomes culpable when a human being terminates the life of another in a blameworthy manner. Culpability depends on the knowledge, motive and the manner of the act of the accused. The offence is punishable under either Section 302, or Section 304 of the IPC which consists of two parts. (See: Chenda @ Chanda Ram v. State of Chhattisgarh11).
11 2014 CrLJ 172 CRA-89-2013 & CRA-229-2013 Page 19 of 26 (28) In the matter of Reaz-ud-din Shaikh v. Emperor12, it has been explained by Shuarf-ud-din J, as under :-
".... all murder is culpable homicide, but all culpable homicide is not murder... subject to the five exceptions to section 300, Indian Penal Code, every act that falls within one or more of the four clauses of section 300, Indian Penal Code, is murder and also falls within the definition of culpable homicide in Section 299, Indian Penal Code. Every act that falls within any one or more of the sets of circumstances described in the five exceptions of that section, is by that fact taken out of section 300, Indian Penal Code but the act notwithstanding continues to be within section 299 and since it is not murder, it is culpable homicide not amounting to murder. Every act that falls within section 299 and does not fall within section 300, since it is not murder, is culpable homicide not amounting to murder."
(29) It is well settled law that in order to convict an accused under Section 302 of the IPC, the first and foremost aspect to be proved by the prosecution is the homicidal death and if the evidence on record produced by the prosecution falls short of the proof of homicidal death, the accused cannot be convicted under Section 302 of the IPC. (See : Madho Singh v. State of Rajasthan13 and Chandrapal v. State of Chhattisgarh14). (30) Similarly, in the matter of Shobhau alias Shubhau v. State of M.P.15, it has been held by the Madhya Pradesh High Court that to prove an offence of murder the death should be homicidal of which onus in a criminal trial is upon the prosecution. In the absence of legal proof of the death being homicidal, because of the serious lacuna of not obtaining the report of Anatomy Expert to prove homicidal death, the benefit will go to the accused and not to the prosecution, as this seals the fate of the prosecution and on this ground the accused cannot be held to legal criminality of the offence under Section 302 of the Indian Penal Code. (See: The State Government of M.P. v. 12 (1910) 11 CrLJ 295 : HS Gaur Penal Law of India, 10th Edn. Vol. 3, pp 2214-2235 13 (2010) 15 SCC 588 14 2022 SCC Online SC 705 15 1998 CrLJ 3934 CRA-89-2013 & CRA-229-2013 Page 20 of 26 Ramkrishna Ganpat Rao16, The State of Punjab v. Bhajan Singh17) (31) The Supreme Court, in the matter of Rupinder Singh Sandhu v. State of Punjab and others18, has held that to find a man guilty of culpable homicide, the basic fact required to be established is that the accused caused the death. In the matter of M.B. Suresh v. State of Karnataka19, it has been held that for holding an accused guilty of murder, the prosecution has first to prove that it is a culpable homicide. Culpable homicide is defined under Section 299 of the Indian Penal Code and an accused will come under the mischief of this section only when the act done by him has caused death. (32) Coming to the facts of the present case in light of aforesaid requirement of law that in order to prove the offence of murder and convict an accused for offence punishable under Section 302 of IPC, the first and foremost requirement by the prosecution is to establish by laying legal evidence that the death of the deceased was homicidal in nature. The learned trial Court in order to hold the death of the deceased to be homicidal in nature has only preferred the statement of Dr. Shivnarayan Manjhi (PW-
02), who has stated that the death of the deceased could be homicidal, suicidal or accidental, but thereafter did not record any clear finding that the death of the deceased was homicidal in nature to convict the accused- appellants Mohit Ram (A-1), Khuman Das (A-2), Bhukhan Das (A-3) and Kunjbai (A-4) for offence under Section 302/34 of IPC. In order to consider the issue the learned trial Court also referred to Diatom test, for which bones of the deceased were preserved, but as per FSL report (Ex.P/40), duly proved by Sushri Yogita Khaparde (PW-10), it has been opined that as bone 16 AIR 1954 SC 20 17 AIR 1975 SC 258 18 (2018) 16 SCC 475 19 (2014) 4 SCC 31 CRA-89-2013 & CRA-229-2013 Page 21 of 26 of the deceased is broken it is not worthy for diatom test, therefore, cause of death via diatom test could not be ascertained. Further, from the dead-body of deceased, pieces of visara (i.e. pieces of stomach, lungs, liver, spleen, kidney and small intestine etc.), clothes (suit, paint, underwear etc.) were also preserved and seized vide Ex.P/34, but in the FSL report (Ex.P/47) it has been stated that no chemical poison has been found in the pieces of visara, which is also duly proved by Sushri Yogita Khaparde (PW-10). As such, firstly, Dr. Shivnarayan Manjhi (PW-02), who has conducted postmortem of the dead-body of the deceased, has not clearly opined that the death of deceased is homicidal in nature indeed stated that it could be homicidal, suicidal or accidental; secondly, diatom test to ascertain the cause of death of deceased also could not be conducted and thirdly, no chemical/poison has been found in the pieces of visara of the deceased, thus, the prosecution has not been able to proved the death of the deceased to be homicidal in nature and, therefore, there was no evidence available to record a finding that the death of the deceased was homicidal in nature. (33) Now the next circumstance, which is required to be considered is that the learned trial Court has relied on the marg intimation (Ex.P/05), which was registered by police constable Sudarshan Singh (PW-03) at the instance of Khuman Das Sahu (A-2), whereby it has been stated that: since 10.03.2010 his sister (prosecutrix/deceased) went missing and while he alongwith his other family members were searching the whereabouts of prosecutrix/deceased, on 15.03.2010, his mother, accused-appellant, Kunjbai (A-4) informed him that the dead-body of prosecutrix/deceased is found floating in the well of Kaushal Ram Sahu and, thereafter, the deliberate and mischevious act on the part of accused-appellants have been revealed. A CRA-89-2013 & CRA-229-2013 Page 22 of 26 careful perusal of marg. Intimation (Ex.P/05) would show that marg intimation has been registered on the report made by Khuman Das Sahu (A-2) and the said information doesn't relates to what the investigating officer himself observed and saw. It is well settled that the statement of a witness recorded by the investigators during the inquest would be within the inhibition of Section 162 CrPC. The statement under Section 174 CrPC cannot be used as a substantive piece of evidence. At the most it can be used only as a previous statement to corroborate or contradict the person making it at the trial [See: Razik Ram vs. Jaswant Singh Chouhan20 , Harkirat Singh vs. State of Punjab21 and Suresh Rai vs. State of Bihar22]. Further, the statements contained in an inquest report, to the extent they relate to what the investigating officer saw and found are admissible, but any statement made therein on the basis of what the heard from others, would be hit by Section 162 CrPC [See: George vs. State of Kerala23]. (34) The Supreme Court further in the matter of Rameshwar Dayal and others vs. State of Uttar Pradesh24 held that the record of what the investigating officer himself observed and found, such an evidence is the direct or the primary evidence in the case and in the eye of law is the best evidence. The inquest report based on actual observation made by the investigating officer would not hit by Section 162 of CrPC and the same is direct evidence admissible under Section 60 of the Indian Evidence Act, 1872 and observed by their Lordships in following para:
".... Note No. 4 in Ex. K-18 is not a note which is based on the information given to the Investigating Officer by the witnesses but is a memo of what he himself founded observed at the spot. Such a
20 AIR 1975 SC 667, 684 : (1975) 4 SCC 769 21 AIR 1997 SC 3231 : (1997) 11 SCC 215 22 AIR 2000 SC 2207 : (2000) 4 SCC 84 23 AIR 1998 SC 1376 : 1998 (4) SCC 605 24 (1978) 2 SCC 518 CRA-89-2013 & CRA-229-2013 Page 23 of 26 statement does not fall within the four-corners of section 162, Cr-P.C. III fact, documents like the inquest reports, seizure lists or the site plans consist of two parts one of which is admissible and the other is inadmissible. That part of such documents which is based on the actual observation of the witness at the spot being direct evidence in the case is clearly admissible under section 60 of the Evidence Act whereas the other part which is based on information given to the Investigating Officer or on the statement recorded by him in the course of investigation is inadmissible under section 162 Cr.P.C. except for the limited purpose mentioned in that section."
(35) Reverting to the facts of the present case in light of decision rendered by their Lordships of Supreme Court in the matter of Rameshwar Dayal (supra) it is quite vivid that marg intimation (Ex.P/05) recorded at the instance of Khuman Das (A-2) before the police and it is not based on what the investigating officer have himself observed and found, as such, this part of evidence is inadmissible in the eye of law. Hence, marg intimation (Ex.P/5) cannot be said to be an incriminating piece of evidence putforth by the prosecution on record in order to bring home the offence against the accused-appellants.
(36) Now the next circumstance that has to be considered is that the learned trial Court has found proved the memorandum statements of accused-appellants, namely, Mohit Kumar Sahu (A-1), Khuman Das (A-2) and Bhukhan Das (A-3) recorded vide Ex.P/12, Ex.P/13 and Ex.P/14 respectively, in which they have admitted commission of the offence in question.
(37) The Supreme Court in the matter of Subramanya vs. State of Karnataka25 has as under:
"81. The conditions necessary for the applicability of Section 27 of the Act are broadly as under:-
(1) Discovery of fact in consequence of an information received from
25 AIR 2022 SC 5110 CRA-89-2013 & CRA-229-2013 Page 24 of 26 accused;
(2) Discovery of such fact to be deposed to;
(3) The accused must be in police custody when he gave information; and (4) So much of information as relates distinctly to the fact thereby discovered is admissible - Mohmed Inayatullah v. The State of Maharashtra26:
Two conditions for application: -
(1) information must be such as has caused discovery of the fact; and (2) information must relate distinctly to the fact discovered Earabhadrappa v. State of Karnataka 27."
(38) Reverting to the facts of the case finally in light of aforesaid principle of law laid down by their Lordships of Supreme Court in the matter Subramanya (supra), it is quite vivid that the alleged admission on the part of accused-appellants Mohit Kumar Sahu (A-1), Khuman Das (A-2) and Bhukhan Das (A-3) is inadmissible in the eye of law and of no use/help to prosecution. Furthermore, pursuant to memorandum statement of accused-
appellants- Mohit Kumar Sahu (Ex.P/12), screwdriver was seized vide Ex.P/15, similarly on the basis of memorandum statement of accused- Khuman Das (Ex.P/13), sack (bori) has been seized vide Ex.P/17 and pursuant to memorandum statement of accused- Bhukhan Das (Ex.P/14), centering wire has been seized vide Ex.P/16. The screwdriver and sack (bori) which were seized pursuant to memorandum statements of accused- Mohit Kumar Sahu (A-1) and Khuman Das (A-2), were not subjected to FSL examination, for the reason best known to the prosecution. But, vide FSL report (EX.P48) it has been opined that the centering wire which was seized pursuant to memorandum statement of accused- Bhukhan Das (A-3) vide Ex.P/16 was found to be similar/same iron wire with the one which was 26 AIR 1976 SC 483 27 AIR 1983 SC 446 CRA-89-2013 & CRA-229-2013 Page 25 of 26 seized from the dead-body of the deceased vide Ex.P/10. Though both the centering wires were found to be similar, but it is a matter of common knowledge that centering wire is commonly used for centering and is easily available in the market, therefore, merely on that count the conviction of the appellant cannot be recorded, unless other incriminating circumstances are duly proved by the prosecution.
(39) Accordingly, the prosecution has failed to bring home the offence beyond reasonable doubt, as firstly, the prosecution has failed to prove that the death of the deceased to be homicidal in nature; secondly, marg intimation (Ex.P/5), which was relied upon by the learned trial Court, cannot be said to be an incriminating piece of evidence putforth by the prosecution and thirdly the memorandum statements of the accused-appellants namely, Mohit Kumar Sahu (A-1), Khuman Das (A-2) and Bhukhan Das (A-3) recorded vide Ex.P/12, Ex.P/13 and Ex.P/14 respectively, which were found proved by the learned trial Court, are inadmissible in the eye of law, it does not inspire confidence and are not corroborated with any other incriminating circumstances, which were duly proved by the prosecution, as such, its a case where five golden principles to constitute the panchsheel of the proof of a case based on circumstantial evidence, as laid by their Lordships of Supreme Court in the matter of Sharad Birdhichand Sarda vs. State of Maharashtra28, have not been established. Therefore, we are unable to sustain the conviction recorded by the learned trial Court against accused- appellants, namely, Mohit Ram (A-1), Khuman Das (A-2), Bhukhan Das (A-3) and Kunjbai (A-4).
(40) Consequently, in our considered opinion the learned trial Court is 28 (1984) 4 SCC 116 CRA-89-2013 & CRA-229-2013 Page 26 of 26 absolutely unjustified in convicting the accused-appellants, namely, Mohit Ram (A-1), Khuman Das (A-2), Bhukhan Das (A-3) and Kunjbai (A-4) for offence under Sections 302/34 & 201 of IPC. Their conviction and sentence awarded by the learned trial Court vide impugned judgment dated 16.01.2013 is hereby set aside and they are acquitted from the charges under Section 302/34 & 201 of IPC. Since, Mohit Ram (A-1), Khuman Das (A-2), Bhukhan Das (A-3) and Kunjbai (A-4) are on bail, they need not to surrender before the trial Court. However, their bail bonds shall remain in force for a period of six months in view of provision contained in Section 437- A of CrPC.
(41) As already held in Para-21 above, the conviction of the appellant- Horidas (A-5) in CRA-89-2013 for offence under Section 376 of IPC and sentenced imposed upon him by the learned trial Court vide impugned judgment dated 16.01.2013 is hereby set aside. Appellant- Horidas (A-5) is acquitted from the charges under Section 376 of IPC. He be released from jail forthwith if his detention is not required in any other matter/case. Since, appellant- Horidas (A-5) is on bail, he need not surrender before the trial Court. However, his bail bond shall remain in force for a period of six months in view of provision contained in Section 437-A of CrPC. (42) Resultantly, both Criminal Appeals No.89 of 2013 and 229 of 2013 stands allowed.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
s@if