Rajasthan High Court - Jaipur
Prahlad vs State on 27 May, 2013
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN 1. D.B. Criminal Appeal No.200/1983 Smt. Sohani Vs. State of Rajasthan through Public Prosecutor
2. D.B. Criminal Appeal No.218/1983 Prahlad Vs. State of Rajasthan through Public Prosecutor Date of Order ::: 27.05.2013 Present Hon'ble Mr. Justice Mohammad Rafiq Hon'ble Mr. Justice Jainendra Kumar Ranka Shri Onkar Singh Lakhawat, Counsel for appellant in Appeal No.200/1983 Shri N.C. Choudhary and Shri Vijay Choudhary, counsel for appellant in Appeal No.218/1983 Shri Javed Choudhary, Public Prosecutor #### //Reportable// Per Hon'ble Mr. Justice Mohammad Rafiq-
These two appeals are directed against the judgment dated 03.05.1983 of learned Additional Sessions Judge, Ajmer, in Sessions Case No.20/1981, by which both the appellants have been convicted for offence under Section 302 read with Section 120-B of the Indian Penal Code. In addition thereto, accused-appellant Sohani was also convicted for offence under Section 201 of the IPC. However, accused-appellant Prahlad was acquitted of the charges for offence under Sections 201 and 379 of the IPC. For offence under Section 302 read with Section 120-B IPC, both accused-appellants were sentenced to undergo life imprisonment with fine of Rs.250/- each; in default of payment of fine, they were required to further undergo one month's rigorous imprisonment. However, for offence under Section 201 IPC, the trial court did not think it proper to award any separate sentence to accused-appellant Sohani.
Facts giving rise to these appeals are that on 26.08.1980 one Harakchand (PW-14), Sarpanch of Gram Panchayat Arai, submitted a written report to the Station House Officer, Kekri stating that at about 6-6.15 hours in the morning that day he was informed by Ratan Singh (PW-2) about a dead-body lying in the house of Rameshwar Jat. He, accompanied with other persons, went to the house of Rameshwar and found the dead-body of a woman enwrapped in a gunny-bag. On the said report, the police lodged a regular first information report on the same day and commenced investigation, in the course of which, it transpired that the dead-body was of Smt. Birdi. On postmortem (Exhibit P-19), the Doctor opined that she died on account of external injuries on her person.
It is significant to note at the very outset that the police recorded confessional statement of accused Sohani on 28.08.1980 and thereafter, her confessional statement under Section 164 Cr.P.C. was recorded before the Magistrate on 03.11.980. Both the statements are substantially similar wherein she confessed her participation in the offence in part only to the extent of helping co-accused Prahlad in causing disappearance of the evidence of crime and helping him in removing the dead-body of Birdi, to the deserted house of Rameshwar. It was stated by accused Sohani in her statement under Section 164 Cr.P.C. that on Saturday at around 12.00-1.00 AM her husband had gone to some other village. Deceased Birdi came to her at 12-1.00 in the noon, to take cakes made of cow dung (which are used as a fuel in rural areas). She counted 25 cakes and put them in a basket and thereafter Birdi took them to her house. She sent her eight years daughter to the agriculture field to keep a watch over the crop. At that time, accused Prahlad Das Sadhu, to whom her husband owed Rs.350/-, came there and demanded money. She told him that her husband is not at the home. He went back. He came back after few minutes and stated that in fact her husband owed only Rs.150/- and demanded the money. When she refused to give the money stating that she did not have even that much money, Prahlad then insisted that she should have sex with him. He came inside the house. While in the statement under Section 164 Cr.P.C. Sohani has stated that co-accused Prahlad forcefully attempted to commit rape upon her and that she cried but in confessional statement recorded by the police on 28.08.1980 she stated that she herself bolted the main gate of the house from inside and both went into the room. Prahlad started making love with her. When they were in compromising position, Birdi came there to return the empty basket. The main door of the house was loosely bolted from inside and therefore it easily opened up. She came inside right upto the room where both the accused were making love. Birdi demanded explanation from Prahlad as to why he was doing so with somebody else's wife. Prahlad thereupon caught hold of Birdi and threw her on the ground. Prahlad strangulated her neck and shut her mouth. Soon he found a 'kulhari' lying nearby. Prahlad hit the head of Birdi from the reverse side of 'kulhari'. Accused Sohani further stated that when she started raising hue and cry, Prahlad threatened her that if she raised any voice, she would also be murdered. Thereafter he inflicted a blow by 'kulhari' on the left soldier of Birdi Bhua. Then he inflicted two blows from the sharp side of the 'kulhari' on the stomach of Birdi Bhua. Blood started oozing out of her body. Sohani further stated that her blouse, petticoat and the bra were soaked in the blood. Blood also spread on the ground and some blood even reached the walls and the roof. Birdi Bhua died there on the spot. Prahlad then left. After some time, she went to her agriculture field. While she was returning, Prahlad met her on the way at 7.00 PM. Prahlad threatened her that she should not tell anybody about this incident and if she did, he would also kill her and her children. Sohani asked Prahlad to do something about the dead body lying in her house or else she might be in problem. Prahlad promised to come late in the night. She waited for him at her residence. Prahlad came in the night after 11'O clock. He brought a gunny bag and a rope. He put the dead body into the gunny bag and tied it with the rope but could not alone lift the gunny bag. He then called his brother Sitaram, but before that he had taken out the silver anklet (ring worn around ankle). Prahlad told her that he would throw the dead body in the deserted house of Rameshwar because he has enmity with him so that people would suspect his (Rameshwar) involvement in this murder. She thereafter cleaned the blood from the ground in the room and also from the mud walls. Prahlad came in the morning and took the blood stained soil which she collected from the ground, in a pot and threw the same in that house of Rameshwar. She washed her blood soaked clothes and thereafter went to her parental house in village Sonklya but enroute she stayed at Kekri. Prahlad gave her the silver anklets there at Kekri and told her that she should pledge the same with Modu Sunar of Sarwar disclosing her identity as Sita Jatni. Prahlad asked her that they would divide the money into half each amongst themselves. She stayed at Sarvar for a while and went to Modu Sunar. She mortgaged the said silver anklets with him for Rs.500/- and disclosed her name to be Sita Jatni. On receiving the amount of Rs.500/-, she boarded the bus and reached her parental village Sonklya at 7.00 PM. Police arrested her from the village Sonklya three days after the 'rakhi' festival and also recovered the amount of Rs.500/-.
The police, after investigation, filed challan against both the accused-appellants for aforesaid offence. Learned trial court framed charges against both the accused for offence under Sections 302/120-B, 201 and 379 of the IPC. Accused denied the charges and claimed to be tried. During the course of trial, 26 witnesses were examined by the prosecution and 25 documents were exhibited. While the defence did not examine any witness, though exhibited five documents. On conclusion of trial, learned trial court convicted and sentenced the accused-appellant as indicated above.
We have heard Shri Onkar Singh Lakhawat, learned Counsel for appellant Sohani in Appeal No.200/1983, Shri N.C. Choudhary and Shri Vijay Choudhary, learned counsel for appellant Prahlad in Appeal No.218/1983, and Shri Javed Choudhary, learned Public Prosecutor.
Shri Onkar Singh Lakhawat, learned counsel for appellant Sohani, submitted that conviction of accused-appellant Sohani as also co-accused Prahlad is founded on confessional statement of Sohani and it is on that basis both the appellants were convicted for offence under Section 302 read with Section 120-B of the IPC. There are no ingredients of the offence under Section 120-B in the present case in as much the offence under Section 120-B postulates an agreement between the parties to do a particular unlawful act. In order to bring home the offence within the ambit of Section 120-B of the IPC, it was necessary for the prosecution to establish that there was an agreement between the parties for doing unlawful act, may be if not by direct evidence, atleast by the circumstantial evidence. In the present case, the evidence that has been produced by the prosecution clearly suggests that appellant Sohani was not a consenting party to the crime of murder. She was rather a victim herself having been sexually exploited under the threat by co-accused Prahlad. She did so only because her husband owed a sum of Rs.150/- to him and could not repay. Appellant Sohani comes from a very poor community (dholi caste), who earns their livelihood by entertaining the people during festivals and the marriages by their music and singing and survive on the paltry sum and eatables that they receive thereby. She has been throughout honest and consistent while narrating the entire story, initially in her statement to the police and thereafter when her statement was recorded under Section 164 of the Cr.P.C., and thereafter when she was examined under Section 313 Cr.P.C. This was a version given by oppressed woman in a most innocent way to the extent of admitting that she easily gave into the demand of sexual favour by co-accused Prahlad. The problem arose when suddenly Birdi Bhua came there and saw them in a compromising position having sex. Co-accused Prahlad took extreme offence at her entering the room, and got infuriated. He suddenly grabbed the 'kulhari' lying nearby and inflicted 'kulhari' blows. Appellant Sohani objected but he threatened to kill her as well. She could do nothing about it.
Shri Onkar Singh Lakhawat, learned counsel submitted that Bheem Singh (PW-3), who is claimed to have lastly seen the deceased two days before the incident, has merely stated that he saw deceased Birdi two days before her dead-body was found, coming out of her house and going to the house of Madan Dholi, husband of appellant Sohani. Kalyan (PW-4) has stated that he saw co-accused Prahlad bolting the main door of the house of appellant Sohani. Ramlal (PW-6) has also merely stated that he saw accused Prahlad talking to Sohani three days before the 'rakhi' festival, in her house. Jagdish (PW-15) has stated that they heard groaning voice from the shop of Jagdish adjoining the house of Sohani, and he told about the same to Baijnath (PW-11), who too has stated to have heard such sound. They have falsely stated that they have informed about this to Harakchand (PW-14), whereas Harakchand has denied the same. Therefore, the evidence that has been adduced, does not prove anything against appellant Sohani except that accused Prahlad entered her house or was seen near the house, for which satisfactory explanation has been offered by accused Sohani in defence. Her explanation is therefore consistent with the facts otherwise proved by the prosecution. There was no intention to cause death of Birdi Bhua but it had taken place suddenly owing to over reaction by co-accused Prahlad when he was seen in compromising position making love with Sohani by her. Learned counsel submitted that the recovery of silver anklets and that amount of Rs.500/- which appellant Sohani received from Modu Sunar by mortgaging the silver anklets, also does not prove against her anything more than the offence of Section 201 of the IPC. The conviction of accused-appellant for offence under Section 302 read with Section 120-B of the IPC is wholly uncalled for. Even with regard to this, there is different version given by the witnesses. While Modu Lal Sunar (PW-19) has stated that he was called by the police and a constable came to his shop and on his askance he went to the police station. He produced the silver ornaments vide Exhibit P-18 and P-17 by the police. His son Bhairu Lal (PW-17) has stated that the police came to their shop in a jeep with accused Sohani and on their enquiry they informed them that silver anklet was pledged with them by accused Sohani and it was recorded in writing vide Exhibit P-18. Recovery memo Exhibit P-17 was prepared. Narendra Mohan (PW-22), who was at the relevant time posted as Deputy Superintendent of Police and was Investigating officer, has stated that Modu Lal himself along-with his son came to the police station and handed over the silver anklets. He also produced the receipt prepared for the such pledging which had interpolations.
Shri Onkar Singh Lakhawat, learned counsel submitted that learned Judicial Magistrate while recording statement of accused Sohani under Section 164 of the Cr.P.C., did not comply with sub-section (3) thereof because he did not at the outset explain to the accused-appellant that she was not bound to make a confession and that, if she did so, it may be used as evidence against her; and the Magistrate should not have recorded her confession unless, upon questioning her that he has reason to believe that it is being made voluntarily. It was argued that even though the trial court framed charge for offence under Section 379 of the IPC against accused Sohani but in para 23 of the judgment has mentioned that no such charge has been framed and therefore while acquitting co-accused Prahlad has not recorded any finding on such charge. This clearly goes to show that the judgment suffers from non-application of mind. Learned counsel referred to para 21 of the judgment, wherein finding has been recorded by the learned trial court that charge of causing disappearance of evidence cannot be held to be proved by mere removal of dead-body from one place to another. Even then the learned trial court has convicted the appellant for offence under Section 201 of the IPC, which is wholly illegal. Learned counsel submitted that there was no motive for murder of the deceased in so far as accused appellant Sohani is concerned. Motive if at all there was any, it was against co-accused Prahlad. He got infuriated when Birdi Bhua saw them in compromising position making love. Learned trial court though partially accepted that argument of the defence in so far as accused appellant Sohani is concerned, but in Para 19 of the judgment held that even if she did not actively participate in the murder of Birdi, she cannot escape her liability because when Prahlad inflicted repeated 'kulhari' blows on deceased, she was very much present there. Learned counsel argued that in doing so learned trial court has read the confessional statement recorded in her examination under Section 313 Cr.P.C. in part and pieces whereas the law on the point is settled that such statement has to be read in entirety and that either such statement has to be accepted as a whole or not at all. Learned counsel, in support of his arguments, has relied on the judgments of the Supreme Court in P.K. Narayanan Vs. State of Kerala (1995) 1 SCC 142, Ram Nath Madhoprasad and Others Vs. State of Madhya Pradesh AIR 1953 SC 420, Sanjiv Kumar etc. Vs. State of Himachal Pradesh 1999 Cr.L.R. (SC) 89, Param Hans Yadav and Sadanan Tripathi Vs. State of Bihar and Others AIR 1987 SC 955 and State of U.P. Vs. Sukhbasi and Others 1985 Cr.L.R. (SC) 350.
Shri Onkar Singh Lakhawat, learned counsel further argued that mere failure of appellant Sohani to prevent the offence cannot be taken as proof to hold her guilty for offence under Section 302 of the IPC. Learned counsel in this connection relied on the judgments in Upendra Chandra Poddar and Others Vs. Emperor AIR 1941 Calcutta 456, Emperor Vs. Bepin Behari Ganguly AIR 1932 Calcutta 549, Mt. Rup Devi Vs. State of Himachal Pradesh AIR 1955 HP 15 and Mt. Shevanti Vs. Emperor AIR 1928 Nagpur 257.
Learned counsel for the appellant argued that mere conduct of appellant Sohani in going to her parental village cannot be taken as proof against her because conduct in every situation does not show involvement of the accused. Learned counsel cited judgment of the Supreme Court in State of Orissa Vs. Babaji Charan Mohanty and Another (2003) 10 SCC 57, wherein the Supreme Court held that unnatural conduct may create a strong suspicion against accused but that by itself is not sufficient to convict the accused, especially when no strong motive to put an end to the life of the deceased is made out.
Lastly, learned counsel cited judgment of the Supreme Court in Vikramjit Singh alias Vicky Vs. State of Punjab (2006) 12 SCC 306, and argued that under Section 106 of the Evidence Act, 1872 the burden of proving fact especially within the knowledge does not relieve the prosecution to prove its case beyond all reasonable doubt. It is only when the prosecution case has been proved beyond reasonable doubt that the burden in regard to such facts which were within the special knowledge of the accused, may be shifted to the accused for explaining the same subject to certain statutory exceptions. Strong suspicion may arise that in all probabilities the accused was guilty of commission of heinous offence, but suspicion however grave cannot be a substitute for proof. Learned counsel, therefore, prayed that the appeal be allowed and appellant Sohani be acquitted of the charges.
Shri N.C. Choudhary and Shri Vijay Choudhary, learned counsel for accused-appellant Prahlad, argued that confessional statement of the co-accused Sohani cannot be read against accused appellant Prahlad, because the confession of a co-accused is a very weak type of evidence. It does not indeed come within the definition of "evidence" contained in Section 8 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. Learned counsel in support of this argument has relied on the judgment of the Privy Council in Bhuboni Sahu Vs. The King AIR 1949 PC 257.
It was further argued that confession of a co-accused can be used to lend assurance to other evidence against other co-accused. The court has to first, ignoring the confession, marshal the evidence to find out whether it is sufficient to sustain the conviction and if it holds so, then it may call in aid the confession and use it to lend assurance to the other evidence. In this connection, reliance is placed on the judgment of the Supreme Court in Kashmira Singh Vs. The State of M.P. - AIR 1952 SC 159.
Shri Vijay Choudhary, learned counsel further argued that a Constitution Bench judgment of the Supreme Court in Hari Charan Kurmi and Another Vs. State of Bihar AIR 1964 SC 1184, by reiterating the view expressed by the Privy Council in Bhuboni Sahu, supra, and by the Supreme Court in Kashmira Singh, supra, has laid down the principles of law to be followed as to the value of confession of co-accused and its use during trial, and held that 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 an assurance in support of its conclusion deducible, from the said evidence. The Supreme Court held that in criminal trials, there is no scope for applying the principle of moral conviction on grave suspicion.
The Supreme Court in a recent judgment in Pancho Vs. State of Haryana (2011) 10 SCC 165, has also reiterated the same view holding that the court cannot start with confession of a co-accused; 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 as to the conclusion of guilt.
Shri Vijay Choudhary, learned counsel for accused-appellant Prahlad, has argued that confession of co-accused in the present case cannot be used against accused-appellant Prahlad because while making that confession, she has exculpated herself and at the same time, she has sought to put the entire blame for the murder of Birdi upon accused-appellant Prahlad. Her statement in so far as she is concerned, except admitting her guilt in very small proportion, cannot be believed. Such statement does not qualify the requirement of law for being used against co-accused. Confession of an accused can be considered against the co-accused only if it is inculpatory qua the accused himself. This is accepted on the principle that it would be assurance of the fact that he is speaking the truth.
Shri Vijay Choudhary, learned counsel for appellant Prahlad has argued that if the confessional statement of co-accused Sohani is excluded from consideration, there being no direct evidence, the entire matter hinges on the circumstantial evidence. There are very many missing links in the chain of circumstances that have been enumerated by the learned trial court in para 8 of the judgment. In regard to the first of such circumstance mentioned therein, learned counsel submitted that Bheem Singh (PW-3) is also not consistent in his statement. While in earlier part of the statement he has stated that accused-appellant Sohani told him one day before 'rakhi' that she would go to her parents' house whereas in other part of his statement he has stated that he saw her going to her parents house in village Sonklya one day before the 'rakhi'. As against this, accused-appellant Sohani in her confessional statement stated that accused-appellant Prahlad asked him on Monday morning that she should take the silver anklet and go to her parents house. The incident is alleged to have taken place on Saturday i.e. 23rd, whereas 25th was the Monday and 26th was the day of 'rakhi'. Learned counsel for the appellant criticized second circumstance referred to in Para 8 of the impugned judgment and submitted that statement of Kalyan (PW-4) that he saw accused Prahlad coming out of the house of co-accused Sohani approximate to the time of incident, cannot be believed because this witness, in his cross-examination, has admitted that he was an employee of Kana and there was litigation between Kana and accused-appellant Prahlad. When a question was put to him that he was making false statement at the instance of his employer, he denied such suggestion but admitted that he is employee of Kana. Regarding third circumstance, learned counsel submitted that Ramlal (PW-6) has stated that he saw both the accused-appellants talking to each other approximate to the time of incident but this witness was also inimical to the accused-appellant Prahlad. In cross-examination, he has admitted that on account of the dispute between his father and the accused-appellant Prahlad, proceedings under Section 107 were drawn against him and then stated that he does not remember the exact provision but the litigation was there. He stated that he did not give any statement against accused Prahlad and in favour of Hajari but he gave a statement against accused Prahlad in the case of Ram Karan. He denied the suggestion that he was making this statement against accused Prahlad on account of enmity. In response to the suggestion that his father filed a criminal case against accused Prahlad because he quarreled with his father in the market, this witness denied the said suggestion but submitted that it was a criminal case with regard to offence of theft. Learned counsel submitted that such a witness, who is inimical to the accused-appellant, cannot be relied. As regards fourth circumstance that Baijnath (PW-11) and Jagdish (PW-15) heard the sound of groaning from the house of accused-appellant Sohani, in the adjacent shop of Jagdish, learned counsel submitted that this does not prove anything except the place of incident, which even otherwise was also proved by other evidence. This evidence does not prove that these witnesses saw the accused-appellant Prahlad in the house of accused Sohani or otherwise heard his voice.
As regards the fifth circumstance, learned counsel submitted that Jagdish (PW-5), Sitaram (PW-13) and Harakchand (PW-14) saw co-accused Sohani throwing the blood smeared soil on the wall of the pond, this does not prove anything as far as accused-appellant Prahlad is concerned. Besides, no report from the Forensic Science Laboratory proving presence of blood in the soil was exhibited. Sixth circumstance that Baijnath (PW-11) has stated that accused-appellant Sohani went to her parents house after the incident, is no circumstance at all as far as accused appellant Prahlad is concerned, which even otherwise does not prove anything as to involvement in the incident. Seventh circumstance that blood stains were found on the ground and the mud walls of the house of accused Sohani also is not a proof against accused-appellant Prahlad. No blood stains were found on his clothes. Eighth circumstance that Ramlal (PW-6) and Rameshwar (PW-7) have stated that accused-appellant Prahlad is a man of quarrelsome nature, is also not sufficient to prove the guilt against accused-appellant Prahlad. There is no evidence on record to show as to in which case he was charge-sheeted or convicted and how many cases are pending against him. This by that itself does not prove his involvement in the crime. Ninth circumstance is regarding recovery of silver anklets, the same were recovered at the instance of accused-appellant Sohani and were identified by Jagdish (PW-18), son of deceased Birdi, in the presence of Ram Rai (PW-20), who was posted as Tehsildar of Kekri. This also does not prove involvement of accused-appellant in the crime, because that at the maximums is a circumstantial evidence against accused-appellant Sohani. Tenth circumstance about identification of silver anklets and presence of blood stains thereupon also cannot be relied against accused-appellant. Recovery of said silver anklets was made on 28.08.1980, whereas the identification parade was belatedly held on 30.11.1980 and it was sent to Forensic Science Laboratory much thereafter. It is not proved whether for this long time the silver anklets were kept in sealed condition. Such a weak evidence cannot be relied upon against them. The eleventh and most significant circumstance is with regard to confession of co-accused Sohani. It is submitted that in view of the arguments already made aforesaid, the aforesaid confession cannot be read against accused-appellant Prahlad.
Shri Vijay Choudhary, learned counsel for the appellant submitted that the Magistrate while recording confession, did not take required precautions because he did not at the outset explain to the accused-appellant Sohani that she is not bound to make a confession and that, if she did so, it may be used as evidence against her; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily. It is argued that when the confession of accused Sohani was recorded, she was under duress or coercion because at that time, she was in police custody. She was arrested on 28.08.1980 and application for recording statement under Section 164 of the Cr.P.C. was submitted to the Magistrate of the court on 28.10.1980, who sent her to judicial custody and ordered to produce before him on 31.10.1980 but she was not produced on that date and thereafter she was produced on 03.11.1980 and on that date he recorded her statement under Section 164 Cr.P.C. How and in what manner the Investigating Officer met accused Sohani and made an application on her behalf to record statement has not been explained. It is therefore submitted that such a tainted confession ought not be relied. Learned counsel further submitted that original confessional statement of co-accused Sohani recorded by the police on 28.08.1980, copy of which is on record of trial court having date 27.10.1980 (Exhibit-D-5), has not been produced on record, for which also no explanation has been given by the prosecution.
It is contended that despite allegation that accused Prahlad removed the dead body of deceased Birdi from the house of Sohani with the help of brother Sitaram, the police has not made him accused nor got his statement recorded nor produced Madan, husband of Sohani, as a witness and, therefore, for withholding these two important witnesses an adverse inference should be drawn against the prosecution.
Shri Vijay Choudhary, learned counsel for accused-appellant Prahlad, has cited the judgment of the Supreme Court in Hanumant Govind Nargundkar v. State of M.P., AIR (1952) SC 343, and argued that the Supreme Court in that case held that in the cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and pendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. The same principle was reiterated by the Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116. All the circumstances in the present case, even if analyzed independently, are not fully proved by themselves and they also do not form complete chain as there are so many missing links. These circumstances are not such which form a complete chain to point towards the guilt of the accused alone and none else, which may lead to conclusion that the accused Prahlad alone and none else must have murdered deceased Birdi.
Shri Vijay Choudhary, learned counsel further argued that although charge of offence under Section 302 IPC was framed against accused-appellants with the aid of Section 120-B IPC, whereas there is no credible evidence of conspiracy. Learned counsel submitted that conviction of appellant Prahlad cannot be altered at this stage either for offence under Section 302/34 or 302 IPC, simplicitor because no such charge was framed against the appellant. Adopting such a course would seriously prejudice the accused-appellant. It is therefore prayed that the appeal of appellant Prahlad be allowed.
Per contra, Shri Javed Choudhary, learned Public Prosecutor appearing on behalf of the State, opposed the appeals and argued that framing of charge under Section 302 read with Section 120-B of the IPC is not material illegality because even otherwise, evidence in the present case fully justify conviction of both the accused for offence under Section 302 with the aid of Section 34 of the IPC. Learned Public prosecutor submitted that conduct of accused-appellant Sohani throughout is such that proved that she was active participant in commission of crime. Referring to her confessional statement recorded by the police on 28.08.1980, as also the statement recorded under Section 164 Cr.P.C. before the Magistrate, learned Public prosecutor argued that she was a consenting party from the very inception, which is evident from the fact that she sent her eight years old daughter to the agriculture field to have a watch over crop. She in her statement stated that even though the dead body was lying in the house, she continued to stay there and thereafter went to the agriculture field with her children. In the evening while she was returning to the home, Prahlad met her on the way and assured her that he would be coming there to remove the dead-body. She has admitted that she waited for accused appellant Prahlad till late in the night. She is to be therefore considered as an accomplice to achieve the motive by joining hands with accused Prahlad in putting the life of Birdi to end when Birdi saw both the accused in a compromising position making love. The argument that she could at the maximum be held guilty of the offence under Section 201 of the IPC is liable to be rejected. Learned Public Prosecutor submitted that recovery of silver anklets vide Exhibit P-17 from Modu Lal on 28.08.1980 was made at the instance of the accused Sohani, which fact has been proved by the statement of Modu Lal Sunar (PW-19), who admitted that she pledged the aforesaid silver anklets with him for Rs.500/-. The amount of Rs.500/- has also been recovered from her. All these recoveries were proved by Bhairulal (PW-17), Modulal (PW-19), Sohanlal (PW-16), Laduram (PW-12) and Balbir Singh Yadav (PW-25), the Sub Inspector of Police, Police Line, Ajmer. Jagdish (PW-18) has identified the silver anklets to be that of his mother deceased Birdi. Baijnath (PW-11) has proved that he saw Birdi wearing silver anklets when she was alive and when her dead-body was found she did not had the said silver anklets. Ram Rai (PW-20), the then Tehsildar, got the identification conducted. The blood stains were found on the ground and mud wall of the house of accused-appellant Sohani, wherefor seizure-memo and site-plan were made vide Exhibit P-11, and recovery-memo was made vide Exhibit P-13. The mud smeared with blood recovered vide Exhibit P-13, was sent to Forensic Science Laboratory, which was received there vide Exhibit P-4. This is proved by Panna Lal (PW-8) Sita Ram (PW-13), Harak Chand (PW-14), Sohan Singh (PW-23) and Balveer Singh Yadav (PW-25). A wooden stick was also recovered from her house. As per the report of Forensic Science Laboratory, the silver anklets, the wooden stick and the mud cake were found to contain the blood. The subsequent conduct of Sohani also proves her complicity in the crime that she immediately went to her parents house in village Sonklya and on enroute she stopped at Sarwar and pledged the silver anklets with Modu Lal Sunar (PW-19). The witnesses have proved the same, as noted above. Bheem Singh (PW-3) has proved that he saw Birdi going to the house of accused Sohani and thereafter she was not seen alive. Jagdish (PW-10) and Baijnath (PW-11) have also stated that Kalyan (PW-4) has proved that he saw Prahlad coming out of the house of Sohani at the time of incident. Ram Lal (PW-6) has proved that he saw both the accused talking to each other near the house of accused Sohani at the time of incident. Baijnath (PW-11) and Jagdish (PW-15) have proved that they heard the sound of groaning on the fateful day in the afternoon in the shop of Jagdish, which is adjacent to the house of accused Sohani, emanating from there. Jagdish (PW-5), Sitaram (PW-13) and Harakchand (PW-14) proved that they saw blood smeared mud near the nohra of Rameshwar from where the police recovered the same vide Exhibit P-13 in the presence of Sitaram (PW-13), Harakchand (PW-14) and Balbir Singh Yadav (PW-25). All the circumstances make a chain so complete as to unerringly point to the guilt of accused-appellants and none else, each of which has also been proved. The confession of the accused Sohani is an additional assurance for holding that it were the accused-appellants and none else, who committed the murder of deceased Birdi. Learned Public Prosecutor submitted that minor contradictions in the statement of prosecution witnesses need not be blown out of proportion and on that basis the prosecution case cannot be disbelieved.
Learned Public Prosecutor cited a judgment of the Supreme Court in Hemraj Devilal Vs. The State of Ajmer AIR 1954 SC 462 and argued that the Supreme Court in that rejected the argument that a confession can only be corroborated by evidence discovered by the police after a confession has been made and any material that is already in their possession, cannot be put in evidence in support of it. It was further held that a confession can be made even during a trial and the evidence already recorded may well be used to corroborate it. Learned Public prosecutor submitted that in the present case the confession has been made not at one stage but at three stages by accused Sohani while recording her statements by the police on 28.08.1980, thereafter while recording her statement under Section 164 of the Cr.P.C. on 03.08.1980 before the Magistrate and finally while her examination under Section 313 of the Cr.P.C. This confession cannot be discarded only because she has attributed the vital injuries on the person of deceased Birdi by use of 'kulhari' to accused-appellant Prahlad. Shanti Lal Chouhan (PW-26), the Judicial Magistrate, has proved that he has recorded confessional statement of accused Sohani. He has also proved the endorsement required sub-section (4) of Section 164 of the Cr.P.C. at the bottom of the statement that she was not bound to make confession and if she does so such confession may be used against her and that in her belief the confession was already made. It is denied that such endorsement was required to be made at the beginning of the statement. Learned Public Prosecutor, in support of his argument, has cited the judgment of the Supreme Court in S. Arul Raja Vs. State of Tamil Nadu (2010) 8 SCC 233. Learned Public Prosecutor has also relied on the judgment of the Supreme Court in Balbir Singh Vs. State of Punjab AIR 1957 SC 216.
Learned Public Prosecutor submitted that confessional statement of accused Sohani is not exculpatory in so far as she is concerned though it is another matter that she has narrated the story exactly the way it happened. If accused appellant Prahlad had taken serious offence to the entry of Birdi into the room of Sohani and got infuriated because Birdi saw them in compromising position having sex and he immediately caught hold of her, strangulated her neck then lifted the 'kulhari' lying nearby and inflicted repeated blows one after another leading to her death, Sohani could not be expected to narrate the incidence in a different way than it has actually happened. It is not that she has exculpated herself completely. She was guilty of helping accused Prahlad in concealing and destroying the evidence of crime and removing the blood smeared mud, mud cakes, wood sticks and her cloths having blood stains and then helping accused Prahlad in removing dead-body of deceased Birdi and then taking the silver anklets from accused Prahlad, who removed the same from legs of Birdi, and then pledging those silver anklets with Modu Lal Sunar in lieu of Rs.500/- and then going to her parents house in village Sonklya. All this is in a chronological order. It cannot be said that her statement is liable to be discarded because she has not inculpated herself as much she inculpates accused-appellant Prahlad.
We have given our anxious consideration to rival submissions, carefully gone through the material on record and respectfully perused the cited case law.
We have to first analyze the evidence in the light of the circumstances which the learned trial court has found proved against accused-appellants guilty and if only it is proved that each of such circumstance is individually proved and cumulatively they make a chain of circumstances so as to point unerringly towards the accused-appellants and no one else who committed murder of the deceased then only we can look at the confessional statement of accused-appellant Sohani to lend assurance to our conclusion arrived on the basis of circumstantial evidence. Following circumstances have been found proved against the accused-appellants, as per the evidence laid by the prosecution in the present case, (1). Bheem Singh (PW-3) has proved that he lastly saw deceased Birdi going to the house of accused Sohani and she was not seen alive thereafter. Whereas, Jagdish (PW-10) and Baij Nath (PW-11) have stated that she was lastly seen alive on the fateful day.
(2). Kalyan (PW-4) has proved that accused-appellant Prahlad was seen coming out of the house of accused Sohani approximately at the time of the incident.
(3). Ram Lal (PW-6) has proved that he saw both the accused Prahlad and Sohani talking to each other in the house of Sohani.
(4). Jagdish Mahajan (PW-15), whose shop is adjacent to the house of accused Sohani, has proved that he heard the depressed voice of groaning coming from the house of accused Sohani in the evening of the fateful day and on his askance Baij Nath (PW-11) also heard such voice. Baij Nath (PW-11) also supported his version that he too heard such depressed voice of groaning of a female.
(5). Jagdish (PW-5), Sitaram (PW-13) and Harak Chand (PW-14) stated that accused Sohani was seen throwing the blood semared soil at the boundary of pond closed to the house of Rameshwar. Sitaram (PW-13) and Balveer Singh Yadav (PW-25) have proved recovery of such blood smeared soil from the said place vide Exhibit P-13.
(6). Bheem Singh (PW-3) and Baij Nath (PW-11) have proved that soon after the incident accused Sohani went to her parental house in village Sonklya, which is significant. Jagdish (PW-5), Sitaram (PW-13), Harak Chand (PW-14) and Balbir Singh (PW-25) have proved that on making search and inspection of the house of Sohani, the blood stains were found on the ground and walls and also the wooden stick. They have proved the search memo of house of Madan Lal (Exhibit P-11), site plan (Exhibit P-12) and seizure memo of blood smeared soil from the place of occurrence (Exhibit P-13).
(7). Panna Lal (PW-8), Head Constable Sohan Singh (PW-23), Kamruddin (PW-24) and Sub Inspector Balbir Singh (PW-25) have proved Exhibit P-4, which is acknowledgment receipt of FSL Jaipur depositing the blood stained articles, i.e. the blood smeared soil and the wooden stick, and Exhibit P-29 which is the acknowledgment receipt of depositing the packet containing the silver anklets. Mention of blood stains on the silver ornaments was found in Exhibit P-17 the recovery memo. Balbir Singh Yadav (PW-25) has proved the presence of blood on such articles as per the FSL report and recovery of clothes and undergarments of accused Sohani vide Exhibit P-5. Ladu Ram (PW-12), Sitaram (PW-13) and Balbir Singh (PW-25) have proved the seizure memo of garments of accused Sohani and the recovery of dhoti of accused Prahlad vide Exhibit P-16. Though on examination by FSL, no blood stains were found on such clothes as the same were washed by accused Sohani. Ramlal (PW-6) and Rameshwar (PW-7) have proved the character of accused Prahlad being a person of quarrelsome nature and also involved in number of criminal cases.
(8). Bheru Lal (PW-17) and Modulal (PW-19) have proved that accused sohani had pledged silver anklets with them and they gave her a sum of Rs.500/- agianst that. She disclosed her identity to be that of Sita Jatni W/o Bansi Lal Jat, Resident of Village Tajpura, and the written record was prepared of such transaction, which has been proved in document Exhibit P-18. Jagdish (PW-18) has identified the said silver anklets to be of her mother deceased Birdi, in the test-identification-parade, which has been proved by Ramrai (PW-20), the then Tehsildar, Kekri, who conducted such identification parade vide Exhibit P-18. Balbir Singh (PW-25), the Sub Inspector, and Sohan Lal (PW-16), Narendra Mohan (PW-22), Deputy Superintendent of Police, have proved the recovery of silver ornaments at the instance of accused Sohani from Bheru Lal (PW-17) and Modulal (PW-19) with whom accused sohani had pledged the same against a sum of Rs.500/-. Narendra Mohan (PW-22) and Balbir Singh (PW-25), Sub Inspector, have proved the recovery of Rs.500/- vide Exhibit P-24 at the instance of accused sohani pursuant to information given by her vide Exhibit P-20 on 28.08.1980.
Circumstances that Bheem Singh (PW-3) saw deceased Birdi going to the house of accused sohani in the afternoon of the fateful day and Kalyan (PW-4) had seen accused Prahlad going to the house of accused Sohani and bolting the main gate in the afternoon on Saturday when the incident took place and that Ramlal (PW-6) had seen accused Prahlad talking to accused sohani in her house around noon, were put to accused Prahlad in his examination under Section 313 Cr.P.C., but he merely pleaded ignorance about these facts and stated that he has nothing to do with accused Sohani. Accused-appellant Prahlad has thus failed to give any explanation, muchless satisfactory explanation, to any of the facts. Those facts proved against him, therefore, should also furnish additional link to the chain of circumstances against him.
The circumstantial evidence thus clearly proved that the deceased was seen going to the house of accused Sohani on the fateful day and she was not seen coming out of her house. The evidence also proves that accused Prahlad was seen talking to deceased on the fateful day and was then seen coming out of her house and that depressed female voice of groaning was heard coming from the house of deceased in the afternoon of the fateful day followed by fact that accused Sohani went to her parental house in village Sonklya and enroute pledged the silver ornaments with Bheru Lal (PW-17) and Modulal (PW-19), and those silver anklets were proved to be that of deceased Sohani, whose dead body was recovered from deserted house of Rameshwar closed to which was a pond and accused Sohani was seen throwing blood smeared soil at the boundary of such pond which too was recovered and found to have contained blood smeared soil, which was also lifted from her house from the ground and also from the mud wall and also the wooden stick of roof of her hut. These circumstances, appearing against him from established facts, indeed are not only individually proved but also in that chronology. Chain of circumstance is so complete so as to unerringly point towards accused-appellants Prahlad and Sohani and none else. The trial court has also considered those circumstances in the order in which we have enumerated them herein-above and it is thereafter lastly we have relied upon the confessional statement of accused Sohani.
What is the unique about confessional statement of accused Sohani is that she has been more or less consistent throughout while her confessional statement recorded by the police on 28.08.1980, and statement under Section 164 Cr.P.C. recorded on 03.11.1980 before the Magistrate and during her examination under Section 313 Cr.P.C. The question, however, arises whether the statement of accused Sohani when she alleges that Birdi was murdered by accused Prahlad and not by her, should not be relied on being an exculpatory statement. We may before coming to the conclusion on that aspect, refer to the law with reference to the judgments cited at the bar.
The Privy Council in Bhuboni Sahu Vs. The King, supra, earlier judgment cited on the subject, has held that confession of a co-accused is a very weak type of evidence and does not amount to proof. It was held that such confession should not be made foundation of conviction. It was held that confession of a co-accused 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. In fact it is much weaker type of evidence than the evidence of approver, which is not subject to any infirmities. Section 30 of the Evidence Act however provides that the court may take into consideration such confession as against such other person as well as against the person who makes such confession. But this Section does not say that confession amounts to proof. What therefore emerges is that confession is only one element in consideration of all the facts proved in the case but there must be other evidence. Confession can be put into the scale and weighed with other evidence. It can be used only in support of other evidence and cannot be solely made the foundation of a conviction. Then, there is the judgment of the Supreme Court in Kashmira Singh Vs. The State of M.P., supra, wherein their Lordships propounded the law that the proper way to approach a case of this kind is first to marshal the evidence against accused excluding 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 there may be cases where the judge is not prepared to act on those evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event, the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be able to accept.
The Constitution Bench of the Supreme Court in Hari Charan Kurmi and Another Vs. State of Bihar, supra, speaking through Hon'ble the then Chief Justice Gajendra Gadkar, again reiterated the same law holding that as per the provisions contained in Section 30 of the Evidence Act, the confession of an accused 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. The confession though 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 court, therefore, while dealing with a case against an accused person, 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.
What therefore emerges from the cited law is that a confession of a co-accused can be used to corroborate other evidence. Such confession may assist the court in coming to the conclusion that other evidence is true and therefore accused is guilty. Conviction has to be always based on some other evidence and confession can be relied on to lend assurance of such conclusion of the court. However, confession cannot be foundation of conviction and other evidence cannot be used to corroborate the confession.
There may, in the present case, arise a question that much of the evidence which the prosecution has collected, has been collected by the Investigating Agency subsequent to the earliest confession given by accused sohani to the Investigating Officer on 28.08.1980, which is marked as Exhibit D-5 and thereafter to the Magistrate under Section 164 of the Cr.P.C. on 03.11.1980. On this, there is a direct authority of the Supreme Court in Hemraj Vs. State of Ajmer AIR 1954 SC 462, wherein their Lordships of the Supreme Court held that a confession can be made even during a trial and the evidence already recorded may well be used to corroborate it. It may be made in the court of committing Magistrate and materials already in possession of the police may well be used for purposes of corroboration. Their Lordships rejected the contention that any material, which is already in possession of the prosecution cannot be put in evidence in support of its case.
The law on confession requires that such confession must be affirmatively proved that such confession was free and voluntary and that it was not preceded by any inducement to the prisoner to make a statement held out by a person, in authority, or that it was not made until after such inducement had clearly been removed. The contention of the appellants in this respect that before recording the confession by the Magistrate under Section 164 Cr.P.C. as per the provisions of sub-section (2) was required to explain to the person making such confession that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.
We, on perusal of the confession recorded by the Magistrate, find that the Magistrate has at the bottom recorded the certificate of his satisfaction as per the requirement of sub-section (4) of Section 164 Cr.P.C. and then there is an additional assurance about the accused Sohani having voluntarily given the confessional statement. She not only at the earliest point of time gave the statement on 28.08.1980, but has also in her statement before the Magistrate admitted having voluntarily given such confession to the police and then her examination under Section 313 Cr.P.C. before the court stood by the earlier two confessional statements. The argument raised by the defence in this behalf is therefore liable to be rejected.
This brings us to the argument raised on behalf of appellant Prahlad, that the confessional statement of accused Sohani cannot be used against accused Prahlad because she has tried to place the whole blame on accused Prahlad and entirely absolved herself. A careful perusal of the statement of accused Sohani recorded under Section 164 Cr.P.C. and also the explanation given by her during her examination under Section 313 Cr.P.C., clearly show that such confessional statement qua herself does not completely exculpated her, although it is true that she has on all the three occasions i.e. in her confessional statement recorded by the police on 28.08.1980, the statement recorded under Section 164 Cr.P.C. before the Magistrate on 03.11.1980 and under Section 313 Cr.P.C., consistently maintained that when suddenly Birdi entered the room and saw accused Sohani and Prahlad in a compromising position making love, accused Prahlad got infuriated and caught hold of her, and tried to strangulate her throat and then lifted a kulhari lying nearby and inflicted repeated blows, thus causing her death. Thus, she has merely stated the spontaneous manner in which the incident has occurred. If it was only one person, who inflicted the kulhari blows, it cannot be the argument that such confessional statement should be accepted only when she would state that both of them jointly held kulhari and inflicted blows on the body of deceased. What Section 30 of the Evidence Act requires is that a confession made by one of such persons, who are being tried jointly for the same offence, affecting himself as also such other 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. The first condition therefore is that it should be an inculpatory statement but if it is inculpatory in some part and exculpatory in certain other part, does not mean that it is liable to be rejected out of hand. Though any exculpatory statement is not admissible for any purpose whatsoever against a co-accused. The second condition is that the co-accused should necessarily be jointly tried for the same offence. In other words, if one accused is being tried for one offence and another for different offence, though in same trial, the confession made by one cannot be used against another. The third condition is that the confession made by one accused would affect him as well as other accused. That would mean that if his confessional statement completely absolves himself but involves the other accused, the same cannot be used against such other accused. The conditions that are stipulated in Section 30 therefore do not require that confession of the accused should be read in evidence only to the extent it inculpates himself as it does the other accused in the same proportion. It cannot therefore be said that confession of an accused qua himself can be relied as against co-accused only if put into scale and weighed, in respect of apportionment of the blame, in equal proportion and not otherwise.
Their Lordships of the Supreme Court in Aghnoo Nagesia v. State of Bihar - AIR 1966 SC 119, held that if an admission of an accused is to be used against him, the whole of it should be tendered in evidence, and if one part of the admission is exculpatory and another part is inculpatory, the prosecution is not at liberty to use in evidence the inculpatory part only. The Supreme Court on this aspect of the law, made following observations in Para 12, 13 and 14,
12. Shortly put, a confession may be defined as an admission of the offence by a person charged with the offence. A statement which contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which, if true, would negative the offence alleged to be confessed. If an admission of an accused is to be used against him, the whole of it should be tendered in evidence, and if part of the admission is exculpatory and part inculpatory, the prosecution is not at liberty to use in evidence the inculpatory part only. See Hanumant Govind v. State of M.P. 1952 SCR 1091 at Page 1111: (AIR 1952 SC 343 at page 350) and 1958 SCR 94; (AIR 1952 SC 354. The accused is entitled to insist that the entire admission including the exculpatory part must be tendered in evidence. But this principle is of no assistance to the accused where no part of his statement is self-exculpatory, and the prosecution intends to use the whole of the statement against the accused.
13. Now, a confession may consist of several parts and may reveal not only the actual commission of the crime but also the motive, the preparation, the opportunity, the provocation, the weapons used, the intention, the concealment of the weapon and the subsequent conduct of the accused. If the confession is tainted, the taint attaches to each part of it. It is not permissible in law to separate one part and to admit it in evidence as a non- confessional statement. Each part discloses some incriminating fact, i.e., some fact which by itself or along with other admitted or proved facts suggests the inference that the accused committed the crime, and though each part taken singly may not amount to a confession, each of them being part of a confessional statement partakes of the character of a confession. If a statement contains an admission of an offence, not only that admission but also every other admission of an incriminating fact contained in the statement is part of the confession.
14. If proof of the confession is excluded by any provision of law such as S. 24, S. 25 and S. 26 of the Evidence Act, the entire confessional statement in all its parts including the admissions of minor incriminating facts must also be excluded, unless proof of it is permitted by some other section such as S. 27 of the Evidence Act. Little substance and content would be left in Ss. 24, 25 and 26 if proof of admissions of incriminating facts in a confessional statement is permitted.
Apart from confessional statement recorded under Section 164 Cr.P.C., the accused Sohani in the present case has given a detailed explanation when she was examined under Section 313 Cr.P.C. exactly on the same line on which she gave the statement under Section 164 Cr.P.C. She stated that in the statement which she gave to the Magistrate, she narrated the incident exactly in the manner in which it took place and when the police arrested her then also she narrated everything to the police truly. She gave a detailed written statement contending that the same be taken as part of examination under Section 313 Cr.P.C. The trial court in Para 18 of the judgment has reproduced that statement. As regards the version of the accused Sohani given in her examination under Section 313 Cr.P.C., the trial court in Para 19 has rejected the argument of the appellant and held that part of such statement where the accused Sohani has tried to explain her conduct need not be accepted and only that part where she has confessed that her offence, can be accepted in the light of other circumstantial evidence on record. The Supreme Court in Narain Singh Vs. State of Punjab 1964 (1) Cr.L.J. 730, held that if an accused in his examination under S.342 (of the old Code, which is analogous to Section 313 of the new Code) confesses to the commission of the offence charged against him, the court may proceed to convict him on that basis, but if he does not confess and in explaining circumstance appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in its entirety. It was not open to the Court to dissect the statement and to pick out a part of the statement which may be incriminating, and then to examine whether the explanation furnished by the accused for his conduct is supported by the evidence on the record. In Yusufalli Esmail Nagree vs. State of Maharashtra - AIR 1968 SC 147, also it was held by the Supreme Court that while considering the answer of the accused in examination under Section 342 (of the old Code, which is analogous to Section 313 of the new Code), the court cannot accept the inculpatory part and reject the exculpatory part. In State of Gujarat and Another Vs. Acharya D. Pandey and Others AIR 1971 SC 866 also the Supreme Court held that the court cannot split the statement of the accused into various parts and accept a portion and reject the rest. The Court has to either accept that statement as a whole or not rely on it at all.
If examined in right perspective, ratio of these judgments of the Supreme Court is that if the statement of an accused under Section 313 Cr.P.C. consists of exculpatory and inculpatory parts both, then two parts cannot be dissected or separated. Either two parts have to be accepted as a whole or rejected. It is not permissible for the court to rely on inculpatory and ignore the exculpatory part. This was so held by the Supreme Court in Dwarka Prasad Vs. State of U.P. - 1993 (1) Crimes 975 (SC).
But then, there is the other aspect of law to be kept in view while considering statement of the accused during his/her examination under Section 313 Cr.P.C. Reference in this connection be made to the judgment of the Supreme Court in Jagroop Singh Vs. State of Punjab (2012) 11 SCC 768, in which it was held that if incriminating circumstances which point to the guilt of the accused had been put to the accused, yet he could not give any explanation under Section 313 of the Code of Criminal Procedure except choosing the mode of denial, this can be counted as providing a missing link for completing the chain of circumstances against him. Similarly in Munna Kumar Upadhyay vs. State of Andhra Pradesh, (2012) 6 SCC 174, the Supreme Court held that examination of accused on such incriminating circumstances appearing against him serves twin purpose of accused. First purpose is to provide opportunity to accused to furnishing explanation on the circumstances appearing against him. If the accused denies the established facts, the court would then will be entitled to draw adverse inference against him. Secondly, if the accused remains silent to such circumstances or furnish false explanation when such circumstances are put to him, the conduct of the accused would entitle the court to tilt the case in favour of the prosecution. Similar view was also expressed by the Supreme Court in Nagesh Vs. State of Karnataka (2012) 6 SCC 477. The Supreme court in Ravi Kapur vs State Of Rajasthan (2012) 9 SCC 284, while considering the aforesaid aspect, observed as under:-
It is true that the prosecution is required to prove its case beyond reasonable doubt but the provisions of Section 313 Cr.P.C. are not a mere formality or purposeless. They have a dual purpose to discharge, firstly, that the entire material parts of the incriminating evidence should be put to the accused in accordance with law and, secondly, to provide an opportunity to the accused to explain his conduct or his version of the case. To provide this opportunity to the accused is the mandatory duty of the Court. If the accused deliberately fails to avail this opportunity, then the consequences in law have to follow, particularly when it would be expected of the accused in the normal course of conduct to disclose certain facts which may be within his personal knowledge and have a bearing on the case.
The Supreme Court in Hanumat, supra, in para 8 of the judgment, held as under:-
It is well to remember that in cases where the evidence in of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and pendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused...
The Supreme Court in Sharad Birdhi Chand Sarda vs State Of Maharashtra, supra, held that before a case against an accused resting on circumstantial evidence can be said to be fully established, following conditions must be fulfilled,
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established;
2. The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of a conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Each of the circumstances that we have noticed in earlier part of the judgment are not only distinctly proved but also cumulatively which form a chain so complete consistent with the hypothesis of the guilt of the accused. Those circumstances are not compatible with the innocence of the accused-appellant and point to the guilt of the accused appellants herein because each of the circumstance so proved are of conclusive nature and excluded every possible hypothesis except the one sought to be proved. The chain of circumstance proved against appellants is so complete as not to leave any reasonable doubt consistent with their innocence. The circumstances so proved clearly show that in all probabilities the murder of Birdi must have been committed by accused-appellant Prahlad, when Birdi suddenly entered the room of co-accused sohani and saw him in compromising position making love with Sohani and when it was objected to by Birdi then accused Prahlad feared of that their relations would become public, he suddenly caught hold of her and killed her. Accused Sohani though has stated that she objected to the murder of Birdi but even if she had posed resistance that would not carry any meaning given the fact that she herself was a victim of exploitation at the hands of accused Prahlad. Accused Sohani has been consistent, candid and forthright in all her statements given to the police when initially she was interrogated, and then before the Magistrate where confessional statement was recorded and then during trial when she was examined under Section 313 Cr.P.C. She has explained each and every circumstance that has been proved against her, which are consistent with evidence collected by the prosecution and rather find corroboration from them. Accused Sohani, in our considered view, cannot be held guilty of murder of deceased Birdi but on the basis of her confessional statement as also recovery of silver ornaments vide Exhibit P-17 and recovery of amount of Rs.500/- vide Exhibit P-24 at her instance. But the fact that she helped accused Prahlad in removing the dead-body of Birdi and also tried to remove the blood stains from the ground and mud wall and hut, categorically proves that she was indeed guilty of committing offence under Section 201 of the IPC.
However, in the facts of the present case, it cannot be said that there was existence of agreement between them and that they were party to the criminal conspiracy to commit murder of deceased Birdi. In order to prove the offence of criminal conspiracy, the ingredients of criminal conspiracy as per its definition given in Section 120-B of the IPC is required to be proved, which reads as follows:-
120B. Punishment of criminal conspiracy.-
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[ imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
The essential ingredients of criminal conspiracy are that (1) an object to be accomplished; (2) the plan or scheme embodied to be accomplished, (3) an agreement or understanding between two or more persons thereby to commit an offence, and (4) in the jurisdiction where the Statute required the overt-act. The essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both. It is an unlawful combination and ordinarily the offence is complete when the combination is framed. In the facts of the case, there is hardly any evidence of either nature to prove that an agreement was arrived at between the accused and, therefore, the finding of conviction recorded against accused-appellants in so far as Section 120B IPC is concerned, cannot be justified. Having held that though the accused-appellants in so far as they caused disappearance of evidence of offence, were both guilty of committing offence under Section 201 of the IPC.
This court has now to deal with the question whether accused-appellant Prahlad, who has been charged for offence under Section 302/120-B along-with co-accused Sohani, can be convicted for offence under Section 302 IPC simplicitor in the absence of such charge being framed against him.
The supreme Court in Radha Mohan Singh @ Lal Saheb vs State Of U.P (2006) 2 SCC 450, was dealing with the case where charge against accused was framed under Section 302 read with 149 IPC. The accused-appellants therein were convicted for offence under Section 302 read with Section 149 IPC by the court of Sessions and their appeals were dismissed by the High Court. It was observed by the Supreme Court that in view of Section 464 Cr.P.C. it is possible for the appellate or revisional court to convict an accused for an offence for which no charge was framed unless the Court is of the opinion that the failure of justice would in fact occasion. In order to judge whether failure of justice has been occasioned, it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself. The Supreme Court in that case noted that evidence of prosecution witnesses making specific allegation against the accused-appellant no.1 was put to him in examination under Section 313 Cr.P.C. and thus he was made aware of basic ingredient of the offence and facts sought to be established against him. The Supreme Court therefore held that despite accused having been charged for offence under Section 302 read with Section 149 IPC, can be convicted for under Section 302 IPC simplicitor.
In Annareddy Sambasiva Reddy and others v. State of Andhra Pradesh (2009) 12 SCC 546, the Supreme Court, while considering its Constitution Bench judgment in Willie (William) Slaney Vs. The State of Madhya Pradesh AIR 1956 SC 116, held that where the charge is a rolled-up one involving direct and constructive liability without specifying who are directly liable and who are sought to be made constructively liable, absence of a charge under one or other of various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for substantive offence, without a charge can be set aside, case of prejudice will have to be made out. It was held that Section 464 of the Code, in unmistakable terms, specifies that a finding or sentence of a court shall not be set aside merely on the ground that a charge was not framed or that charge was defective unless it has occasioned in prejudice. Because of a mere defect in language or in the narration or in form of the charge, the conviction would not be rendered bad if accused has not been adversely affected thereby. If the ingredients of the section are obvious or implicit, conviction in regard thereto can be sustained irrespective of the fact that the said section has not been mentioned.
What in the present case we find from the ratio of that judgment of the Supreme Court based on its Constitution Bench judgment in Willie (William) Slaney Vs. The State of Madhya Pradesh, supra, is that charge was framed against accused-appellant Prahlad under Section 302 read with Section 120-B IPC and, therefore, it cannot be said that there was absence of charge under Section 302 IPC, although it is another matter that it was a rolled-up charge. The first charge against accused-appellant Prahlad was that about 2-2.30 PM or around that time on 23.08.1980, he in conspiracy with co-accused sohani, caused injuries on the head and other parts of the body of deceased Birdi D/o Balu Bux Jat, aged 50 years, with an intention to kill her and thereby caused her murder. The later part of the charge then reduced is that he by said conduct has thereby committed offence under Section 302 read with Section 120-B IPC. The second charge against accused-appellant Prahlad is that he, after causing murder of Smt. Birdi, with an intention to conceal the dead body and cause disappearance of evidence, threw the dead-body in the deserted house of Rameshwar Jat and thereby he has committed the offence under Section 201 of the IPC. In view of the charges that have been framed against accused-appellant, it is clearly evident that the circumstances in which the said charges were framed against accused-appellants, were distinctly and separately put to accused-appellant Prahlad. He was made aware of all the essential ingredients of the offence of murder. No prejudice can be said to have occasioned to him even if conviction under Section 302 read with 120 IPC is altered to one under Section 302 IPC simplicitor.
The Supreme Court in Prakash Dhawal Khairner (Patel) Vs. State of Maharashtra - (2002) 2 SCC 35, was dealing with the case where also the conviction of the accused was founded on circumstantial evidence and the learned trial court also drew support from the confession of the co-accused. The principal accused happened to be father whereas co-accused whose confession was recorded under Section 164 Cr.P.C. before the Magistrate was his son. The learned trial court convicted them both for offence under Section 302 read with Section 120-B IPC, apart from convicting them for offence under Section 397 read with Section 34 IPC and for offence under Section 25 read with Section 3 of the Arms Act, and further read with Section 120B IPC, and also for offence under Section 201 IPC. The Supreme Court on detailed analysis of the entire evidence of the case found the case of the principal accused i.e. the father and co-accused i.e. son, distinct and held as under:-
20. In this case, the High Court has not relied upon the confessional statement as a substantive piece of evidence to convict accused no.1. It has been used for lending assurance to the proved circumstances. The High Court held that the proved circumstances would not involve accused no.2 for the offence punishable under Section 302 IPC and the circumstantial evidence does not establish that there was any common intention or conspiracy between the father and the son to commit the offence. However, the Court held that Sandeep had seen his father committing multiple murders and when he destroyed the evidence relating to those murders by throwing the articles from Mhatre bridge on two separate occasions, it was absolutely clear that he did this with primary object of saving his father and, therefore, he would be liable to be convicted for the offence under Section 201 IPC. Hence, it cannot be said that confessional statement is wholly exculpatory.
21. In this view of the matter, we would briefly refer to the confessional statement of A-2 which lends assurance to the circumstantial evidence. Firstly, the important circumstance that after the incident accused nos.1 and 2 left Malegaon at about 5.00 a.m. in the taxi of PW15 Uttam Thethe. Secondly, A-2 threw plastic bag containing blood stained T-shirt, handkerchief, gloves, pair of white sleepers, six empty cartridges in Mhatre Bridge, Pune and on the basis of information given by him the said bag was recovered near Mhatre Bridge, Pune. From the bag, the articles mentioned above were found. In the confessional statement, it is stated that at the time of incident his father has put on T-shirt which was hanging on the wooden peg in the bungalow. On the T-shirt blood stains were found of group 'A' and 'O'. Thirdly, A2 also produced a torch and a blood stained school bag and currency to the tune of Rs.7100/-, which is proved and gets corroboration from the confessional statement. Fourthly, it is proved that A-2 came to the house of deceased on 23.10.1996 and left in the early morning without informing anyone by keeping a chit, which was placed on the door. Coupled with the aforesaid circumstance, it is to be borne in mind that at 2.30 a.m. (night-time) he facilitated A-1 Prakash Patil to enter the house through the kitchen gate without informing anyone. It appears that he was waiting for his father to come at night time. He did not make any attempt to save the deceased, who were closely related to him nor raised any hue and cry when he heard fire shots. From his confessional statement it is clear that after committing the five murders, when his father was removing all the evidence from the scene of offence, like wiping the gun with a handkerchief, putting the cartridge belt in the Godrej cupboard, then going to the devghar and going to WC, he (Sandip Patil) had ample opportunity of running out of the house or making hue and cry or informing someone, but he did not do so. On the contrary, he preferred to wait and watch his father wiping all the clues from the scene and thereafter left the premises along with his father. Hence, it would be totally wrong to say that his statement is exculpatory and the High Court has rightly referred to inculpatory part and has used the same for lending assurance to the circumstantial evidence brought on record. In this view of the matter, we confirm the conviction of the accused Prakash Patil for the offence punishable under Section 302 IPC and under Section 25(1)(b)(a) of the Arms Act.
In that case, the trial court convicted both accused i.e. father and son, for offence punishable under Sections 302 read with 120-B, 201, 397 read with Section 34 of the IPC and under Section 25(1)(b)(a) of the Arms Act read with Section 120-B of the IPC and sentenced them to death with different sentences for other offences. The accused-appellants preferred appeal before the High Court of Bombay, and the matter also came for confirmation of death sentence. The High Court dismissed the appeal of accused Praksh and confirmed his conviction under Section 302 IPC and maintained the death sentence. The High Court partly allowed the appeal filed by accused Sandeep and acquitted him of all the charges except the one punishable under Section 201 IPC and sentenced him to the period already undergone. The Supreme Court maintained conviction of accused Prakash under Section 302 IPC simplicitor but set aside the death sentence with the direction that he shall suffer imprisonment for life but he shall not be released unless he had served out at lest 20 years of imprisonment including the period already undergone by him, and allowed his appeal to that extent. The appeal filed by the State of Maharashtra before the Supreme Court against co-accused Sandeep was dismissed.
In that case also, the argument was that the part of the statement of co-accused, being exculpatory, ought not to have been relied on by the High Court. The Supreme Court, while rejecting that argument held that the High Court has rightly referred to inculpatory part and has used the same for lending assurance to the circumstantial evidence brought on record. The High Court, however, altered the conviction of the principal accused from Section 302 read with 120B IPC to Section 302 IPC simplicitor, and the Supreme Court upheld the same.
In view of the foregoing discussion, the appeal filed by accused-appellant Prahlad is dismissed. However, his conviction is altered from Section 302 read with 120B IPC to Section 302 IPC simplicitor and he is sentenced to undergo life imprisonment. The appeal of co-accused Sohani is partly allowed. She is acquitted of all the charges except the one punishable under Section 201 IPC and sentenced to the period already undergone by her. She is on bail and needs not to surrender.
Accused-appellant Prahlad is on bail by order of this court dated 26.05.1983 in D.B. Criminal Miscellaneous Bail Application (SOSA) No.360/1983 filed in Criminal Appeal No.218/1983. He is directed to surrender immediately before the trial court, who will take him into custody and send him to jail to serve out the remaining sentence of imprisonment. In case accused-appellant Prahlad does not surrender, the trial court shall take necessary steps to take him into custody and send him into jail to serve out the remaining sentence of imprisonment.
Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, co-appellant Sohani is directed to forthwith furnish a personal bond in the sum of Rs.20,000/- each, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Supreme Court.
(Jainendra Kumar Ranka) J. (Mohammad Rafiq) J. //Jaiman//
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Giriraj Prasad Jaiman PS-cum-JW