Delhi District Court
This Court In Shivaji Sahabrao Bobade & ... vs . State Of on 28 July, 2020
IN THE COURT OF DR. SUDHIR KUMAR JAIN
DISTRICT & SESSIONS JUDGE, NORTH-EAST
KARKARDOOMA COURTS, DELHI
SC 45013/2015
CNR No.DLNE01-000800-2015
FIR: 1173/14
POLICE STATION: KHAJURI KHAS
UNDER SECTION: 302/ IPC
STATE
V
VINOD
S/O RAMKARAN
R/O B-75, FIRST FLOOR, GALI NO. 2
CHANDU NAGAR
DELHI-110094
INSTITUTION: 18.02.2015
ARGUMENT: 28.07.2020
JUDGMENT:28.07.2020 JUDGMENT
1. The prosecution filed present charge sheet for offence punishable under section 302 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC"). Section 300 IPC defines murder. It reads as under:-
300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--
(Secondly) --If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
(Thirdly) --If it is done with the intention of causing bodily SC 45013/2015 STATE V VINOD FIR 1173/14 1/32 injury to any person and the bodily injury intended to be in- flicted is sufficient in the ordinary course of nature to cause death, or--
(Fourthly) --If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Section 302 IPC prescribed punishment for offence of murder defines in section 300 IPC. It reads as under:-
302. Punishment for murder.--Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.
2. Vinod along with his family is residing in one room situated at first floor of house bearing no B-75, Gali no.2, Chandu Nagar, Delhi (hereinafter referred to as "the property"). Vinod on 01.11.2014 at about 4.30 am came to police station Khajuri Khas and informed the duty officer that Omkar aged 45 years, a tenant in respect of another room situated at first floor of the property, sexually assaulted his daughter aged 14 years due to which she became pregnant. Vinod became mentally disturbed when he came to know about pregnancy of his daughter. Vinod on 01.11.2014 at about 11:30 pm returned back to home and tried to speak with Omkar. Omkar became agitated and accepted that he had sexually assaulted daughter. Vinod got angry and tied hands of Omkar with towel and mouth and nose with another piece of cloth as a result of which Omkar died. Vinod also burnt private parts of Omkar with a hot palta (kind of utensil). Duty Officer reduced information given by Vinod into writing vide DD No 6A.
Duty Officer ASI Shanti Lal handed over a copy of DD No 6A to Inspector Arvind Pratap Singh (hereinafter referred to as "the investigating officer"). Vinod on being questioned by the investigating officer disclosed that Omkar sexually assaulted his daughter and due to this he committed murder of Omkar and his dead body was lying in the room. The investigating officer along with SI Karan Kumar, Ct. Kuldeep and Vinod went to first floor of the property where in a room dead body of Omkar (hereinafter referred to as "the deceased") was found lying on a SC 45013/2015 STATE V VINOD FIR 1173/14 2/32 diwan (bed). Rukka was prepared. FIR bearing no 1173/14 under section 302 IPC was registered. Vinod (hereinafter referred to as "the accused") was arrested. The investigating officer on pointing of the accused seized one gamchha (towel) by which the accused tied hands of the deceased and a piece of shirt by which the accused pressed neck and mouth of the deceased. The investigating officer also seized palta (kind of utencil) and chammach (spoon) used for burning of private parts of the deceased besides collecting other exhibits which were deposited in malkhana. The post mortem on dead body of the deceased was conducted on 02.11.2014. The investigating officer also recorded statement of Ram Bahadur before whom the accused confessed commission of crime prior to visiting police station. The statement of Ram Bahadur was also recorded under section 164 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the code"). The investigating officer during course of investigation obtained postmortem report and subsequent opinion, got prepared scaled site plan, collected other exhibits and sent exhibits to FSL, recorded statements of witnesses besides completing other procedural formalities of investigation. The accused after investigation was charge sheeted for offence punishable under section 302 IPC. The charge sheet was filed in concerned court of the Metropolitan Magistrate.
3. The copies of charge sheet and annexed documents were supplied to the accused in compliance of Section 207 of the Code. The concerned Metropolitan Magistrate vide committal order dated 09.02.2015 committed the case to the Sessions Court and assigned to this Court for trial in accordance with law.
4. The charge for offences punishable under sections 302 IPC was framed against the accused vide order dated 07.07.2015 on allegation that the accused in intervening night of 31st October and 01st November, 2014 at first floor of the property caused death of the deceased by asphyxia to which the accused pleaded not guilty and claimed trial.
5. The prosecution examined Inder Singh as PW1, ASI Shanti Lal as PW2, Ram Bahadur as PW3, HC Kanwar Singh as PW4, Inspector E. S. Yadav as PW5, Ct. Sant Kumar as PW6, Ct. Ravi as PW7, HC Zile Singh as PW8, Dr. Ambri Aggarwal as PW9, Ct. Kuldeep Kumar as PW10, SI Arun Kumar as PW11, Ct.
SC 45013/2015 STATE V VINOD FIR 1173/14 3/32Shamim as PW12, Dr. Pankaj Malia as PW13, Inspector Mahesh Kumar as PW14, Ms. Prabhdeep Kaur, the Metropolitan Magistrate as PW15 and Inspector Arvind Pratap Singh as PW16.
PW1 Inder Singh is real brother of the deceased. PW2 ASI Shanti Lal being Duty Officer recorded DD 6A on 01.11.2014 and registered FIR bearing no 1173/14. PW3 Ram Bahadur is the person before whom the accused confessed commission of offence. PW4 HC Kanwar Singh being MHC(M) was entrusted with exhibits. PW5 Inspector E. S. Yadav being In charge of Mobile Crime Team inspected place of occurrence. PW6 Ct. Sant Kumar on 08.11.2014 collected viscera and clothes of the deceased from GTB Hospital. PW7 Ct. Ravi on 02.11.14 joined investigation at time of recovery of medical prescription of daughter of the accused given by Aggarwal Clinic. PW8 HC Zile Singh being photographer in Mobile Crime Team unit took photographs of the place of occurrence. PW9 Dr. Ambri Aggarwal on 27.10.2014 gave medical prescription to daughter of the deceased. PW10 Ct. Kuldeep Kumar and PW11 SI Arun Kumar on 01.11.2014 participated in investigation with investigating officer. PW12 Ct. Shamim deposited and collected exhibits/case property from FSL. PW13 Dr.Pankaj Malia deposed about post mortem of the deceased conducted by Dr. Priyal Jain and also subsequent opinion given by Dr. Priya Jain. PW14 Inspector Mahesh Kumar prepared scaled site plan of place of occurrence. PW15 Ms. Prabhdeep Kaur, the Metropolitan Magistrate on 07.11.2014 recorded statement of PW3 Ram Bahadur under section 164 of the Code. PW16 Inspector Arvind Pratap Singh being investigating officer conducted investigation.
The prosecution proved DD No 6A as Ex.PW2/B, rukka as Ex.PW16/A, Copy of FIR bearing No 1173/14 as Ex.PW2/A, DD No 2A as Ex.PW2/C, photographs of place of occurrence as Ex. PW8/A(1 to 23) and negatives as Ex. PW8/B(1 to 23), Crime Team Report as Ex.PW5/A, arrest and personal memos of the accused as Ex.PW11/A and Ex.PW11/B, disclosure statement of the accused as Ex. PW11/C, seizure memos of exhibits as Ex.PW11/D to Ex.PW11/K, entries in registers no 19 and 21 as Ex.PW4/A and Ex.PW4/B, identification memos of dead body of the deceased as Ex. PW16/G and Ex.PW1/A, application for preservation SC 45013/2015 STATE V VINOD FIR 1173/14 4/32 of dead body of the deceased in the mortuary as Ex.PW16/D, inquest papers as Ex.PW16/E and Ex.PW16/F, seizure memos of viscera and clothes of the deceased as Ex.PW6/A and Ex.PW6/B, prescription pertaining to daughter of the accused given by Aggarwal Clinic as Ex. 7/P1 and its seizure memo as Ex.PW7/A, post mortem report of the deceased as Ex.PW13/A and subsequent opinion as Ex.PW13/B, scaled site plan as Ex. PW14/A, application for recording statement of Ram Bahadur under section 164 of the Code as Ex.PW16/I, proceedings conducted for recording of statement of PW3 Ram Bahadur under section 164 of the Code as Ex.PW15/A to Ex.PW15/D, gas slip as Ex. PW16/B, site plan as Ex.PW16/C, handing over memo of dead body of the deceased as Ex.PW16/H, application for seeking subsequent opinion as Ex.PW16/K, viscera report as Ex.PW16/PY, FSL Reports as Ex.PW16/PZ and Ex.PW16/PZ1. The prosecution witnesses also identified exhibits as Ex.P1 to Ex.P10. The prosecution evidence was ordered to be closed vide order dated 25.03.2019.
6. The statement of the accused was recorded under section 313 of the Code wherein he denied incriminating evidence and pleaded innocence and false implication. The accused stated that he was lifted by investigating officer from house and implicated in this case. The daughter of the accused was not pregnant. No recovery was affected at the instance of the accused. PW3 Ram Bahadur gave statement under pressure. The accused preferred to lead defence evidence and examined his wife as DW1.
7. Sh. Masood Ahmed, Additional Public Prosecutor for the State and Sh. S. Ansari, Advocate for the accused heard. Record perused.
8. The Additional Public Prosecutor argued that although there is no eye witness to the offence but the prosecution has successfully proved the guilt of the accused persons by leading circumstantial evidence such as by establishing motive of the accused in committing the murder of the deceased, confession made by the accused before duty officer vide DD No 6A, extra-judicial confession made to PW3 Ram Bahadur and his statement recorded under section 164 of the Code and recoveries affected at instance of the accused besides other circumstantial evidences. The defence counsel argued that the prosecution could not prove SC 45013/2015 STATE V VINOD FIR 1173/14 5/32 complete chain of circumstantial evidence pointing towards only guilt of the accused and as such accused be acquitted.
9. The prosecution case is mainly resting on circumstantial evidences as there is no eye witness to the incident. Direct evidence is evidence which explicitly establishes a fact or proves any assertions made by the party and does not require supplementation and interference to form a connection between various facts. In very few cases direct evidence of facts are available. Criminals lay their plot in secret and execute it ruthlessly under the cover of darkness or secrecy. They silent their victim altogether and do not lead any trail of evidence behind. In such cases main event has to be reconstructed before the court with the help of the surrounding circumstances. The concept of circumstantial evidence has evolved through the interplay between statutes and judicial interpretation. Circumstantial evidence, also known as indirect evidence, is an unrelated chain of events which when put together formulates circumstances leading to the commission of the crime and can be used to derive a conclusion. Conviction based on circumstantial evidence requires an unbreakable link between the criminal and the crime. If a case is depending largely upon circumstantial evidence, there is a danger that conjecture or suspicion may take place of legal proof. The court must satisfy itself that various circumstances in the chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. If the chain is broken, none of the other circumstances can be relied upon to establish the guilt of the accused. Circumstantial evidence can be sole basis for a conviction, if circumstances establish the chain of events leading to the guilt of the accused and commission of the crime without other possibilities. The Court should be satisfied that the said circumstances were clearly establishes and complete the chain of events and prove the guilt of the accused beyond reasonable doubt. Moreover, all the circumstances should indicate towards the guilt of the accused and should be inconsistent with his innocence. The onus is on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defense or plea. The chain of events or circumstances should be complete without gaps to the extent no other conclusion or inference apart from the guilt of the accused can be drawn.
SC 45013/2015 STATE V VINOD FIR 1173/14 6/3210. The Supreme Court in Sharad Birdhichand Sarda V State of Maharashtra, AIR 1984 SC 1622, while dealing with circumstantial evidence held that the onus was on the prosecution to prove that the chain is complete and the infirmity or la- cuna in prosecution cannot be cured by false defence or plea. The conditions precedent before conviction could be based on circumstantial evidence must be fully established. They are:
(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances con- cerned `must or should' and not `may be' established;
(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) the circumstances should be of a conclusive nature and tendency;
(iv) they should exclude every possible hypothesis except the one to be proved; and
(v) 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 ac-
cused.
A similar view was re-iterated in State of UP V Satish, (2005) 3 SCC 114 and Pawan V State of Uttaranchal, (2009) 15 SCC 259. In Ashok Kumar V State of Madhya Pradesh, AIR 1989 SC 1890 the Supreme Court held that for circumstantial evidence to sustain conviction, the chain of events should be com- plete and should establish the guilt of the accused without probability of any other alternative. The evidence should be cogently and firmly established. In the case of Bodh Raj V State of Jammu & Kashmir, AIR 2002 SC 316 the Supreme Court held that that for a conviction to be solely based on circumstantial evidence fol- lowing conditions are required to be met:
i. Circumstances from which guilt is established are required to be proved and impenetrable ii. Circumstances should be conclusive in nature and should form a link between the criminal and commission of the of- fence SC 45013/2015 STATE V VINOD FIR 1173/14 7/32 iii. Circumstances should retain moral certainty and there should be no scope for any other hypothesis.
iv. All other hypothesis should be excluded except that one that is required to be proved In Krishnan V State represented by Inspector of Police, (2008) 15 SCC 430 the Supreme Court after considering earlier judgments observed as fol- lows:-
This Court in a series of decisions has consistently held that when case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(i)the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii)those circumstances should be of definite tendency unerr- ingly pointing towards guilt of the accused;
(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that with all human probability the crime was committed by the accused and none else; and
(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evi-
dence should not only be consistent with the guilt of the ac- cused but should be inconsistent with his innocence.
In Rajendra Pralhadrao Wasnik V State of Maharashtra, (2012) 4 SCC 37 while dealing with the case based on circumstantial evidence, the Supreme Court observed as under: -
There is no doubt that it is not a case of direct evidence but the conviction of the Accused is founded on circumstantial evidence. It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis i.e. the guilt of the Accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete as not to leave any sub- stantial doubt in the mind of the court. Irresistibly, the evi- dence should lead to the conclusion which is inconsistent with the innocence of the Accused and the only possibility is that the Accused has committed the crime.SC 45013/2015 STATE V VINOD FIR 1173/14 8/32
In Ram Lal V State of Himachal Pradesh, Criminal Appeal No 576 OF 2010 decided on 03rd October, 2018 the Supreme Court observed as under:-
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade & Anr. Vs. State of Maharashtra [(1973) 2 SCC 793 where the observations were made:
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of 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 ac-
cused."
15. It has further been considered by this Court in Sujit Biswas Vs. State of Assam 2013(12) SCC 406 and Raja alias Rajinder Vs. State of Haryana 2015(11) SCC 43. It has been propounded that while scrutinising the circumstantial evi- dence, a Court has to evaluate it to ensure the chain of events is established clearly and completely to rule out any reason- able likelihood of innocence of the accused. The underlying principle is whether the chain is complete or not, indeed it would depend on the facts of each case emanating from the evidence and there cannot be a straight jacket formula which can be laid down for the purpose. But the circumstances ad- duced when considered collectively, it must lead only to the conclusion that there cannot be a person other than the ac- cused who alone is the perpetrator of the crime alleged and SC 45013/2015 STATE V VINOD FIR 1173/14 9/32 the circumstances must establish the conclusive nature con- sistent only with the hypothesis of the guilt of the accused.
MOTIVE
11. The Additional Public Prosecutor argued that the prosecution from the quantity and quality of evidence could prove motive of the accused in committing murder of the deceased as the deceased sometime before incident sexually assaulted minor daughter of the accused who became pregnant and due to this reason the accused committed the murder of the deceased. The defence counsel argued that the prosecution has failed to prove motive of the accused in committing the murder of the deceased.
12. Section 8 of the Indian Evidence Act, 1872 deals with relevance of Motive in criminal trial. It reads as under: -
8. Motive, preparation and previous or subsequent conduct.
-- Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The con- duct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in ref- erence to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
The Supreme Court in Shivaji Genu Mohite V State of Maharashtra, AIR 1973 SC 55observed regarding importance of existence of motive in a criminal case as under:-
In case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eye-witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eye- witnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate SC 45013/2015 STATE V VINOD FIR 1173/14 10/32 conclusion. But that does not mean that if motive is not established, the evidence of an eye-witness is rendered untrustworthy.
In State of U.P. V Babu Ram, (2000) 4 SCC 515 the Supreme Court has stated that motive is a relevant factor in criminal cases whether based on the testimony of eye witnesses or circumstantial evidence. In State of Uttar Pradesh V Kishan Pal & others, (2008) 16 SCC 73, the Supreme Court exam- ined the importance of motive in cases of circumstantial evidence and observed:
(t)he motive is a thing which is primarily known to the ac-
cused themselves and it is not possible for the prosecution to explain what actually promoted or excited them to commit the particular crime. The motive may be considered as a circum- stance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evi- dence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eye- witnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction.
The Supreme Court has also held in Pannayar V State of Tamil Nadu by Inspector of Police, (2009) 9 SCC 152 that the absence of motive in a case depending on circumstantial evidence is a factor that weighs in favor of the accused. The Supreme Court in Amitava Banerjee V State of West Bengal, (2011) 12 SCC 554 observed that motive for the commission of an offence assumes greater importance in cases resting on circumstantial evidence than those in which direct evidence regarding commission of the offence is available. In Anil Kumar V State, 2011 (5) AD (Delhi) 351 it was held as under:-
Motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its non-existence. The failure to prove motive is SC 45013/2015 STATE V VINOD FIR 1173/14 11/32 not fatal as a matter of law. Proof of motive is never an indispensable for conviction. When facts are clear it is immaterial that no motive has been proved.
The Supreme Court in Khurshid Ahmed V State of Jammu & Kashmir, Criminal Appeal No 872 of 2015 decided on 15 May, 2018 observed that the prosecution may prove but the prosecution is not bound to prove the motive for a crime. Motive is an emotion which compels the person to do a particular act. It will be very difficult for the prosecution to prove the real motive in all cases. Motive is a double-edged weapon when there is direct and reliable evidence available motive loses its importance. In a case of circumstantial evidence motive assumes greater importance than in the case of direct evidence. In a case of direct and compelling evidence even assuming that no motive is attributed, still the prosecution version has to be examined.
13. The prosecution to prove motive of the accused in committing murder of the deceased relied on DD No 6A Ex. PW2/B. The accused as reflected from DD No 6A Ex. PW2/B came to police station Khajuri Khas on 01.11.2014 at about 4.30 am and confessed before PW2 ASI Shanti Lal, Duty Officer that he committed murder of the deceased as the deceased sexually assaulted his minor daughter who became pregnant but DD No 6A Ex. PW2/B as discussed herein below is not admissible in evidence.
14. The prosecution to prove motive also examined PW3 Ram Bahadur who was known to the accused since long and before whom the accused made extra-judicial confession regarding committal of murder of the deceased including motive of the murder. PW3 Ram Bahadur did not support case of prosecution and deposed that on 02.11.2014 Ram Karan father of the accused came and thereafter PW3 Ram Bahadur accompanied father of the accused to the police station where PW3 Ram Bahadur was asked by the investigating officer to depose before the court that the deceased committed rape with daughter of the accused. The testimony of PW3 Ram Bahadur does not prove motive of the accused in committing murder of the deceased.
The statement of PW3 Ram Bahadur was also recorded under section SC 45013/2015 STATE V VINOD FIR 1173/14 12/32 164 of the Code. PW3 Ram Bahadur deposed that he was also produced before the Metropolitan Magistrate but made his statement under section 164 of the Code Ex.PW3/B as per dictation of the investigating officer. PW3 Ram Bahadur in cross examination deposed that he made statement under section 164 of the Code Ex.PW3/B as per instruction and pressure of the investigating officer. The statement of PW3 Ram Bahadur recorded under section 164 of the Code Ex.PW3/B (Ex.PW16/J) is perused and perusal of which reflects that the accused told him that he committed murder of the deceased as the deceased committed rape with daughter of the accused. The statement of PW3 Ram Bahadur recorded under section 164 of the Code Ex.PW3/B (Ex.PW16/J) is not supported by his oral testimony. The statement of PW3 Ram Bahadur recorded under section 164 of the Code cannot prove motive of the accused.
15. As per prosecution minor daughter of the accused was medically examined by PW9 Dr. Ambri Aggarwal. PW16 the investigating officer Inspector Arvind Partap Singh deposed that the accused during investigation led to his house and produced a prescription slip Ex.PW7/P1 prepared by PW9 Dr. Ambri Aggarwal which was seized vide seizure memo Ex. PW7/A. The prosecution examined PW9 Dr. Ambri Aggarwal who deposed that one patient/girl was brought to clinic on 27.10.2014 with complaints of missing period for two months and prescription Ex. PW7/P1 was written by him. The testimony of PW9 Dr. Ambri Aggarwal only proved that daughter of the accused was having problem of missing periods but not sufficient to prove pregnancy of minor daughter of the accused.
The critical and analytical reading of above mentioned evidence led by the prosecution reflects that the prosecution could not prove motive of the accused with certainty in committing murder of the deceased. The prosecution did not lead sufficient evidence to prove that the accused sexually assaulted/ committed rape with minor daughter of the accused and due to this reason she became pregnant. The prosecution as such not proved motive of the accused in committing murder of the deceased.
CONFESSIONAL FIR SC 45013/2015 STATE V VINOD FIR 1173/14 13/32
16. As per prosecution the accused on 01.11.2014 at about 4.30 am came to police station Khajuri Khas and made confession about committal of murder of the accused before Duty Officer PW2 ASI Shanti Lal which was reduced into writing vide DD No 6A Ex. PW2/B which was assigned to PW16 investigating officer. PW16 investigating officer prepared rukka Ex. PW16/A and on basis of rukka Ex.PW16/A, FIR bearing no 1173/14 under section 302 IPC Ex.PW2/A was recorded. DD No 6A Ex.PW16/A and FIR Ex. PW2/A perused and perusal of which reflects that the accused on 01.11.2014 at about 4.30 am came to police station Khajuri Khas and informed PW2 ASI Shanti Lal, Duty Officer that the deceased, a tenant in respect of another room situated at first floor of the property, sexually assaulted his daughter aged 14 years due to which she became pregnant. The accused became mentally disturbed when he came to know about pregnancy of his daughter. The accused on 01.11.2014 at about 11:30 pm returned back to home and tried to speak with the accused but the accused became agitated and accepted that he had sexually assaulted daughter of the accused. The accused got angry and tied hands of the deceased with towel Ex.P2 and mouth and nose with another piece of cloth Ex.P1 as a result of which the deceased died. The accused also burnt private parts of the deceased with a hot palta (kind of utensil) Ex.P7. The Additional Public Prosecutor argued that the accused has confessed his guilt vide DD No 6A Ex. PW2/B while the defence counsel argued that DD No 6A Ex. PW2/B is not admissible in evidence being confession made in police custody.
17. The accused in DD No 6A Ex. PW2/B admitted his guilt in committing murder of the deceased by narrating facts leading to murder of the deceased. Issue which needs judicial consideration is that whether confession made by the accused vide DD No 6A Ex. PW2/B which was reduced in FIR Ex.PW2/A is admissible in evidence. The confession is not defined or expressed in the Indian Evidence Act, 1872. The definition of admission in mentioned in section 17 of Indian evidence Act, 1872 (hereinafter referred to as "the Act") also applies to confession which reflects the legislative intent of not distinguishing between an admission and a confession. The confessions are a species of admission. The confession is made by a person who is charged with any criminal offences and shall be suggesting a SC 45013/2015 STATE V VINOD FIR 1173/14 14/32 conclusion as to any fact in issue or as to relevant facts. Any inference to fact in issue or to relevant facts is known as confession. The statements may infer any reasoning for concluding or suggesting that he is guilty of a crime. In Pakala Narayan Swami V Emperor, AIR 1939 PC 47 it was held that no statement that contains sell exculpatory matter can amount to a confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession. In Palvinder Kaur V State of Punjab, AIR 1952 SC354 the Supreme Court accepted the Privy Council conclusion in Pakala Narayan Swami by considering that for an admission amounts to confession, it must either admit the guilt in terms or admit considerably all the facts which compose the offence and a mixed up statement which even though consist of some confessional statement but will lead to acquittal is no confession. It was held in State of Maharastra V Kamal Ahmed Mohd Vakil Ansari, AIR 2013 SC 1441 that a confession is a statement made by a person charged with a crime suggesting an inference as to any fact in issue or as to relevant fact. The inference that the statement should suggest should be that he is guilty of the crime.
18. The legislature put a total bar to admissibility of custodial confessions in evidence. Sections 24 to 30 of the Act deal with the confessions. Sections 24 to 26 of the Act deal with confessions which are irrelevant and Sections 27 to 30 of the Act enumerates confessions which the court will take into account. A confessions made by an accused at any time either before or after commencement of investigation to police or to anyone whilst in police custody are governed by Sections 25 of the Act which expressly declares that such confessions shall not be proved against a person accused of any offence as such confessions are considered as involuntary, unreliable and irrelevant whatever may be its form direct, express, implied or inferred from conduct.. If such confessions are allowed to be proved in evidence, the police would torture the accused and thus force him to confess to a crime which he might not have a committed and procuring such confession would SC 45013/2015 STATE V VINOD FIR 1173/14 15/32 be an archaic attempt to secure confession by hook or by crook and would be end all of the police investigation. The Supreme Court in Dagdu V State of Maharashtra, AIR 1977 S.C. 1579 observed as under:-
The police should remember that confession may not always be a short-cut to solution. Instead of trying to "start" from a confession they should strive to "arrive" at it. Else, when they are busy on this short route to success, good evidence may disappear due to inattention to the real clues. Once a confession is obtained, there is often flagging of zeal for a full and thorough investigation with a view to establish the case de hors the confession.
19. Sin is an act of transgression against divine law. One who is guilty of sin must be punished but sometimes a person admits or confesses his guilt to purge his soul from sin. The accused sometime after committing offence goes to the police station and lodges the First Information Report with regard to an offence committed by him. FIR is not a substantive piece of evidence i.e. it cannot be used as evidence to prove a fact in issue or relevant fact. It can be used to corroborate or contradict the informant under sections157 and 145 of Evidence Act, respectively, if such informant is called as a witness. It was held in State of Rajasthan V Shiv Singh, AIR 1962 Raj 3 that if there is a pure and simple confession of the accused in the FIR prepared by him, the whole FIR is inadmissible in evidence. In Aghnoo Nagesia V State of Bihar, AIR 1966 SC 199 it was observed that a confessional FIR by the accused to the police cannot be used in evidence against him in view of Section 25 of the Act. In this case the first information of the offences was lodged by the accused at police station which was reduced to writing by police officer. The accused was arrested. The dead bodies were recovered on pointing of the accused. There is no eye-witness to the murders. The principal evidence against the accused was first information report containing a full confession of guilt by the accused. The principal question in the appeal was whether the statement or any portion of it is admissible in evidence. It was observed as under:-
A confession or an admission is evidence against the maker of it, unless its admissibility is excluded by some provision of law. Section 24 excludes confessions caused by certain inducements, threats and promises. Section 25 provides: "No SC 45013/2015 STATE V VINOD FIR 1173/14 16/32 confession made to a police officer, shall be proved as against a person accused of an offence." The terms of s. 25 are imperative. A confession made to a police officer under any circumstances is not admissible in evidence against the accused. It covers a confession made when he was free and not in police custody, as also a confession made before any investigation has begun. The expression "accused of any offence" covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession.
If the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by s. 25. The confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence contained in the confessional statement.
In Banarsi Dass V State of Punjab, 1981 Crl L.J 1235 (P & H) it was held that if in the first information report the accused narrated as to in what manner he committed the murder and how the murder was committed by him then no part of it can be separated and treated as admission. The entire statement appears to be a confession and no part of it can be used as admission under Section 21 of the Evidence Act. The Chattisgarh High Court Dhaniram V State of Madhya Pradesh, Criminal Appeal No. 1928 of 1996 decided on 27th January, 2009 after referring Aghnoo Nagesia observed that a confessional first information report by the accused to a police officer cannot be used against him in view of section 25 of the Evidence Act. In Mangu Singh and others V Dharmendra and others, 2015 (13) SCALE 800 the Supreme Court considered issue of confessional FIR. The Trial Court proceeded to believe FIR as admission of guilt by the accused. The police investigation disclosed that FIR was lodged by the accused who took defence that he was forced to scribe it at the dictation of the Investigating Officer after being assaulted at the police station. The series of events above stated, thus, cast doubts on the time of the FIR. It is established that the trial court shift the burden on the accused under Section 106 of the Indian Evidence Act, 1872, to prove the incident. The High Court reversed the finding. It was observed that Section 106 does not absolve the prosecution's burden under Section 101 to prove SC 45013/2015 STATE V VINOD FIR 1173/14 17/32 its case of guilt of the accused beyond reasonable doubt. The decision in Mangu Singh reflects that even if the accused made confessional FIR the prosecution is not absolved from proving guilt of accused beyond reasonable doubt.
20. A narrative disclosing strained relations between the accused and the deceased or referring to an event that occurred several days before the occurrence in the FIR given by the accused being a statement disclosing motive for the crime is inadmissible under Section 25 of the Act. In a confessional statement the accused makes a confession admitting that he had committed an offence and further gives the details of the preparation which he had made for the commission of the offence. The whole narrative in such a case is not admissible. It cannot be said that part which relates to the actual commission of the offence is not admissible in evidence while other part relates to other activities of the accused in commission of the offence can be admissible in evidence. If the first information report made by an accused person contains details linking to motive, preparation and occasion to commit the crime with which he is charged and the facts recited are self- inculpatory the whole statement must be treated as a confession made to a police officer and would be hit by Section 25 of the Act. The confession made by the accused vide DD No 6A Ex. PW2/B is not admissible in evidence being hit by section 25 of the Act.
EXTRA-JUDICIAL CONFESSION
21. As per prosecution the accused had confessed about the commission of crime i.e. murder of the deceased prior to visiting the police station. PW16 Investigating Officer deposed that during investigation he recorded the statement of PW3 Ram Bahadur under 161 of the Code wherein which is Mark PW3/A wherein PW3 Ram Bahadur stated that the accused on 01.11.2014 at about 3 am came to his house and knocked door of his house. PW3 Ram Bahadur came out of his house and saw the accused was under stress. The accused informed PW3 Ram Bahadur that he has committed murder of the deceased as the deceased in past committed rape with his minor daughter and also disclosed manner in which the accused committed murder of the deceased. The prosecution as such relied on extra-judicial confession SC 45013/2015 STATE V VINOD FIR 1173/14 18/32 made by the accused to PW3 Ram Bahadur. Issue which needs judicial consideration is evidentiary value of extra-judicial confession made by the accused to PW3 Ram Bahadur and whether the prosecution is able to prove factum of extra-judicial confession stated to be made to PW3 Ram Bahadur.
22. Judicial confessions are made before a magistrate or in court in the due course of legal proceedings. Extra-judicial confessions are made by the accused elsewhere than before a magistrate or in court. It may be a confession to a private person. An extra-judicial confession is a free and voluntary confession of guilt by a person accused of a crime in the course of conversation with persons other than judge or magistrate seized of the charge against himself. Extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility. Extra-judicial confession is generally made before private person. The conviction can be based on a voluntarily confession but the rule of prudence requires that wherever possible it should be corroborated by independent evidence. Extra- judicial confession of accused need not in all cases be corroborated. The Supreme Court in Madan Gopal Kakkad V Naval Dubey and Another, (1992) 3 SCC 204 after referring to Piara Singh and Others V State of Punjab, (1977) 4 SCC 452 held that the law does not require that the evidence of an extra-judicial confession should in all cases be corroborated. The rule of prudence does not require that each and every circumstance mentioned in the confession must be separately and independently corroborated. In Balwinder Singh V State of Punjab, 1995 Supp (4) SCC 259 the Supreme Court stated the principle and held that an extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. The Supreme Court while explaining the dimensions of the principles governing the admissibility and evidentiary value of an extra-judicial confession in State of Rajasthan V Raja Ram, (2003) 8 SCC 180 stated the principle as under:-
An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The SC 45013/2015 STATE V VINOD FIR 1173/14 19/32 confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made.
Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused.
The Supreme Court accepting the admissibility of the extra-judicial confession in Sansar Chand V State of Rajasthan, (2010) 10 SCC 604 held that there is no absolute rule that an extra-judicial confession can never be the basis of a conviction although ordinarily an extra-judicial confession should be corroborated by some other material. This legal proposition was reiterated in Sahadevan and Another V State of Tamil Nadu, (2012) 6 SCC 403. The Supreme Court in Ram Lal V State of Himachal Pradesh, Criminal Appeal No 576 OF 2010 decided on 03rd October, 2018 observed that extra-judicial confession is a weak piece of evidence and the court must ensure that the same inspires confidence and is corroborated by other prosecution evidence. In order to accept extra-judicial confession, it must be voluntary and must inspire confidence. If the court is satisfied that the extra-judicial confession is voluntary, it can be acted upon to base the conviction. In Devi Lal V State of Rajasthan, Criminal Appeals No 148 & 149 of 2010 decided 08 th January, 2019 on the Supreme Court observed as under:-
It is true that an extra judicial confession is used against its maker but as a matter of caution, advisable for the Court to look for a corroboration with the other evidence on record. In Gopal Sah v. State of Bihar 2008(17) SCC 128, this court while dealing with extra judicial confession held that extra judicial confession is, on the face of it, a weak evidence and the Court is reluctant, in the absence of a chain of cogent cir- cumstances, to rely on it, for the purpose of recording a con- viction.SC 45013/2015 STATE V VINOD FIR 1173/14 20/32
The Bombay High Court in Mohammad Ismail Noormohammad V State of Maharashtra, Criminal Appeal659/12decided on 12th February, 2020 observed that the extra judicial confession is weak piece of evidence and re- ferred Vijay Shankar V State of Haryana, 2 (2015) 12 SCC 644 and Kala @ Chandrakal V State through Inspector of Police, (2006) 9 SCC337 wherein the Supreme Court held that the extra judicial confession should be corroborated by some other material on record and it is weak piece of evidence.
23. PW3 Ram Bahadur deposed that he knows the accused for last eight years.
Ram Karan, father of the accused on 01.11.2014 at about 11 am came to him and informed that the accused was taken by the police and asked PW3 Ram Bahadur to accompany him to the police station. PW3 Ram Bahadur accompanied Ram Karan to police station where investigating officer met them and asked them to come to police station after 2/3 days. PW3 after permission from the court was cross exam- ined by the prosecutor wherein denied suggestions that on 01.11.2014 at about 3 am the accused came to his house and was under tension or that the accused in- formed him that the accused committed murder of the deceased as the deceased committed rape of the daughter of the accused besides denying other suggestions. The testimony of PW3 Ram Bahadur is not sufficient to prove that the accused on 01.11.2014 made extra-judicial confession about murder of the deceased to him. The prosecution could not prove that the accused made extra-judicial confession to PW3 Ram Bahadur otherwise also extra-judicial confession is a week type of evi- dence.
STATEMENT UNDER SECTION 164 OF THE CODE
24. The statement of PW3 Ram Bahadur was recorded under section 164 of the Code. Issue which needs judicial consideration is extent of evidentiary value of statement under section 164 of the Code when maker PW3 Ram Bahadur in oral deposition did not support prosecution. Section 164 of the Code deals with recording of confessions and statements. It reads as under:-
164. Recording of confessions and statements.SC 45013/2015 STATE V VINOD FIR 1173/14 21/32
(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an in-
vestigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial: Provided that no con- fession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.
(2) The Magistrate shall, before recording any such confes- sion, explain to the person making it 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 vol- untarily.
(3) If at any time before the confession is recorded, the per- son appearing before the Magistrate states that he is not will- ing to make the confession, the Magistrate shall not autho- rise the detention of such person in police custody.
(4) Any such confession shall be recorded in the manner pro- vided in section 281 for recording the examination of an ac- cused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:-" I have ex- plained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confes- sion was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and ad-
mitted by him to be correct, and it contains a full and true account of the statement made by him.
(Signed) A. B. Magistrate".
(5) Any statement (other than a confession) made under sub- section (1) shall be recorded in such manner hereinafter pro- vided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded.
(6) The Magistrate recording a confession or statement un- der this section shall forward it to the Magistrate by whom the case is to be inquired into or tried.
SC 45013/2015 STATE V VINOD FIR 1173/14 22/3225. The objects of recording of statements of witnesses under section 164 of the Code is to deter witnesses from changing their versions subsequently and to get over the immunity from the prosecution in regard to information given by the witnesses under section 162 of the code. The police during the course of investigation police records the statement under section 162 of the Code without administering oath to the person making statement and obtaining his signature but a magistrate recording statement of a person under section 164 of the Code can administer oath to him and obtain his signature over the statement. If a person makes and signs a statement then chances of his turning hostile will be reduced. The evidence of witness whose statement is recorded under section 164 of the Code must be approached with caution. The statement recorded under section 164 of the Code cannot be treated as substantive evidence when the maker does not depose of such facts on oath during trial. The recording of statements under section 164 of the Code plays a pivotal role in criminal trial. The purpose of contradiction between evidence of a witness before the court and the statement recorded under section 164 of the Code is primarily to shake credit of the witness and to put the court on guard to scrutinize the evidence with great care. It was observed in Ram Kishan V Harmit Kaur, AIR 1972 SC 468 that a statement of a witness under section 164 of the Code is not substantive evidence but it is a former statement made before an authority legally competent to investigate the fact. Such a statement can be used either for corroboration of the testimony of a witness under section 157 of the Evidence Act, 1872 or for contradiction thereof under section 145 of the Evidence Act, 2872. In Balak Ram V State of UP, AIR 1974 SC 2165 it was observed that evidence of witness cannot be discarded merely because his statements were recorded under section 164 of the Code. All that is required as a matter of caution is a careful analysis of the evidence. In Ram V State, AIR1968 SC 1270 it was held that unless witnesses resile from their statements recorded under section 164 those statements cannot be deemed doubtful. The Supreme Court in Baij Nath Sah V State of Bihar, (2010) 6 SCC 736 after referring Ram Kishan Singh observed that that a statement under Section 164 of the Code is not substantive evidence and can be utilized only to corroborate or contradict the SC 45013/2015 STATE V VINOD FIR 1173/14 23/32 witness vis-à-vis statement made in court. In other words, it can be utilized only as a previous statement and nothing more. The Supreme Court in R. Shaji V State of Kerala, (2013) 14 SCC 266 held as under:-
Evidence given in a court under oath has great sanctity, which is why the same is called substantive evidence. Statements under Section 161 CrPC can be used only for the purpose of contradiction and statements under Section 164 CrPC can be used for both corroboration and contradiction.
So far as the statement of witnesses recorded under Section 164 is concerned, the object is twofold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement; and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in court should be discarded is not at all warranted.
Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 CrPC can be relied upon for the purpose of corroborating statements made by witnesses in the committal court or even to contradict the same. As the defence had no opportunity to cross-
examine the witnesses whose statements are recorded under Section 164 CrPC, such statements cannot be treated as substantive evidence.
During the investigation, the police officer may sometimes feel that it is expedient to record the statement of a wit- ness under Section 164 CrPC. This usually happens when the witnesses to a crime are clearly connected to the ac-
cused, or where the accused is very influential, owing to which the witnesses may be influenced.
The Madras High Court regarding legal scope of section 164 of the Code in R.Palanisamy V State By Inspector of Police, Criminal Appeal No 158 / 2013 decided on 23rd April, 2013 observed that objective behind recording of statement of a witness under Section 164 0t the Code is that it is for an assurance that the investigation is going on in right direction, it is going against a right SC 45013/2015 STATE V VINOD FIR 1173/14 24/32 person and, a belief that it will instill a sense of feeling in the mind of the deponent that later he should not resile from it. A statement given by a witness under section 164 of the Code is like a 'previous statement' given during investigation under section 161 of the Code. It is not 'substantive evidence' adduced before the Trial Judge because it was not recorded in the presence of the accused. It has some higher value than the statement recorded under Section 161 of the Code by the police since it was recorded by a Magistrate. The Jharkhand High Court in Yugal Prajapati V State of Jharkhand, Criminal (Jail) Appeal (DB) No 207/2007 decided 0n 24th October, 2018 observed that the statement witness recorded under section 164 of the Code does not in any way help the prosecution in proving the guilt of the appellants (accused). In T. Diwakara V State of Karnataka, 2006 Crl.L.J.4813, during investigation witness gave statement before a magistrate under Section 164 of the Code but during the sessions trial, he turned hostile. The Karnataka High Court held that the trial court grossly erred in placing reliance on the statement recorded under Section 164 of the Code as substantive evidence. The Himachal Pradesh High Court in Pankaj V State Of Himachal Pradesh, Cr. Appeal No 251, 257 and 258/2018 decided on 12th July, 2019 statement of the prosecutrix was recorded under Section 164 of the Code wherein the prosecutrix implicated the appellants who allegedly committed sexual intercourse with her against wish. The prosecutrix while appearing as witness resiled from statement recorded under Section 164 of the Code. The High Court relied on Ram Kishan Singh and observed that statements under Section 164 of the Code cannot be treated as substantive evidence and where the witnesses do not support the prosecution story in the Court then their statements under Section 164 of the Code cannot be used as substantive piece of evidence. The Sikkim High Court in Binod Sanyasi V State of Sikkim, Crl. A. No. 13/ 2019 decided on 21st March, 2020 observed that where the prosecution version is not supported by its witnesses, the Court cannot rely on the statement of the witness under Section 164 of the Code to convict the accused as such a statement is not substantive evidence. It may be reiterated that statement under Section 164 of the Code can only be used to corroborate or contradict statements made by the witness under Section 145 and SC 45013/2015 STATE V VINOD FIR 1173/14 25/32 Section 157 of the Evidence Act and can never be used as substantive evidence. In the light of this observation, it would be erroneous to rely upon the Section 164 of the Code.
26. PW16 Investigating Officer deposed that on 07.11.2014 he went to court for production of the accused for recording of his statement under section 164 of the Code but accused declined to give confessional statement. PW3 Ram Bahadur met PW16 investigating Officer in the court and thereafter PW16 Investigating Officer filed an application Ex.PW16/1 before the court for recording statement of PW3 Ram Bahadur under section 164 of the Code which was allowed by the court. The concerned Metropolitan Magistrate recorded statement of PW3 Ram Bahadur under section 164 of the Code. The prosecution also examined concerned Metropolitan Magistratre as PW15 who recorded statement of PW3 Ram Bahadur under section 164 of the Code. PW15 deposed that on 07.11.2014 Inspector Arvind Partap Singh moved an application Ex.PW15/A for recording statement of witness Ram Bahadur and thereafter PW15 recorded statement Ex.PW3/B of witness Ram Bahadur under section 164 of the Code. PW15 also gave certificate Ex.PW15/B about the correctness of proceeding. PW15 in cross examination deposed that PW3 Ram Bahadur gave statement voluntarily and without any force or pressure and denied suggestion that PW3 Ram Bahadur had deposed under the influence of police official who was standing outside the Court. Although PW3 Ram Bahadur deposed that he made statement under section 164 of the Code Ex.PW3/B on dictation of PW16 Investigating Officer but there is no reason to believe that PW3 made statement under section 164 of the Code Ex.PW3/B under dictation of PW16 Investigating Officer. The testimony of PW15 proved that PW3 Ram Bahadur made statement Ex.PW3/B out of his free will. PW15 also gave certificate of correctness Ex.PW15/B. PW3 Ram Bahadur in statement Ex.PW2/B primarily stated about extra-judicial confession stated to be made by the accused regarding committing murder of the deceased. The statement under section 164 of the Code Ex.PW3/B is not a substantial piece of evidence particularly when PW3 Ram Bahadur in oral deposition did not support the prosecution regarding extra-judicial SC 45013/2015 STATE V VINOD FIR 1173/14 26/32 confession stated to be made by the accused to him.
RECOVERIES AFFECTED AT INSTANCE OF THE ACCUSED
27. The prosecution also relied on recoveries affected at the instance of the accused. Section 27 of the Evidence Act, 1872 incorporates the theory of confirmation by subsequent facts i.e. statements made in police custody are admissible to the extent that they can be proved by subsequent discovery of facts. Section 27 of the Indian Evidence Act, 1872 reads as follows:
How much of information received from accused may be proved- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
The requirements of Section 27 of the Evidence Act, 1872 were succinctly summed up in Anter Singh V State of Rajasthan, (2004) 10 SCC 657 as under:-
(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy.
The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in consequence of some information received from the accused and not by the own act of the accused.
(4) The person giving the information must be accused of any offence.
(5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
(7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved.
SC 45013/2015 STATE V VINOD FIR 1173/14 27/32The Supreme Court in Raju Manjhi V State of Bihar, Criminal Appeal No. 1333/2009 decided on 2nd August, 2018 held as under:-
It is true, no confession made by any person while he was in the custody of police shall be proved against him. But, the Indian Evidence Act, 1872 provides that even when an accused being in the custody of police makes a statement that reveals some information leading to the recovery of incriminating material or discovery of any fact concerning the alleged offence, such statement can be proved against him.
28. PW16 Investigating Officer arrested the accused vide arrest memo Ex.PW11/A and after arrest made disclosure statement Ex.PW11/C. The accused in pursuance of disclosure statement Ex. PW11/C got recovered gamchha (towel) Ex. P2 by which the accused tied hands of the deceased and a piece of shirt Ex. P1 used for pressing the neck and mouth of the deceased which were seized vide seizure memos Ex.PW11/D and Ex.PW11/E. The accused also got recovered palta (kind of utensil) Ex.P7 and chammach (spoon) Ex.P8 which were seized vide seizure memo Ex.PW11/G. PW16 the investigating officer could not recover Alprex tablets stated to be administered to the deceased in cold drink by the accused. The prosecution also examined SI Arun Kumar as PW11 and Ct. Kuldeep Kumar as PW10 who were also members of the police party which arrested the accused and affected recoveries at the instance of the accused. PW11 SI Arun Kumar and PW10 Ct. Kuldeep Kumar supported and corroborated testimony of PW16 the investigating officer. PW16 the investigating officer was not cross examined by the defence counsel regarding recovery of gamchha (towel) Ex. P2, piece of shirt Ex. P1, palta (kind of utensil) Ex.P7 and chammach (spoon) Ex.P8 at instance of the accused. The prosecution as such proved recovery of gamchha (towel) Ex. P2, piece of shirt Ex. P1, palta (kind of utensil) Ex.P7 and chammach (spoon) Ex.P8 at the instance of the accused.
MEDICAL EVIDENCES
29. The medical evidence has great corroborative value. The medical evidence is usually opinion evidence with advisory character. The Supreme Court in Solanki SC 45013/2015 STATE V VINOD FIR 1173/14 28/32 Chimanbhai Ukabhai V State of Gujarat, AIR 1983 SC 484 observed that ordinarily the value of medical evidence is only corroborative and proves that the injuries could have been caused in the manner alleged and nothing more. The value of a medical witness is a check upon the testimony of eyewitness and is independent testimony as it may establish certain facts apart from oral evidence. There should not be glaring inconsistency between the direct evidence and the medical evidence. The Supreme Court in State of Haryana V Ram Singh, 2002 AIR SCW 219 held as under:-
While it is true that the post-mortem report by itself is not a substantive piece of evidence but the evidence of the doctor conducting the post-mortem can by no means be ascribed to be insignificant. The significance of the evidence of the doc- tor lies visa-vis the injuries appearing on the body of the de- ceased person and likely use of the weapon therefore and it would then be the prosecutor's duty and obligation to have the corroborative evidence available on record from the other prosecution witnesses.
30. PW16 the investigating officer deposed that the dead body of the deceased was transmitted to mortuary, GTB Hospital vide application Ex.PW16/D in the custody of Ct. Kuldeep for preservation and Ct. Kuldeep guarded dead body in the mortuary. PW16 the investigating officer on 02.11.2014 prepared inquest papers Ex.PW16/E and Ex.PW16/F and thereafter postmortem examination on the dead body of the deceased was conducted. PW16 the investigating officer also received subsequent opinion of autopsy surgeon. The prosecution examined Dr. Pankaj Malia, Senior Resident (Department of Forensic Medicine), GTB Hospital as PW13 who deposed about post mortem of the deceased conducted by Dr. Priyal Jain. PW13 Dr. Pankaj Malia deposed that Dr. Priyal Jain on 02.11.2014 conducted postmortem on dead body of the deceased vide Report No. 1512/14 Ex. PW13/A. PW13 Dr. Priyal Jain on general observation noticed sub conjunctival hemorrhages in the eyes and congested face. The following ante-mortem injuries were noted on dead body of the deceased:-
1. Reddish abrasion of size 0.8x0.4 cm present over left side of ala of nose.
2. Reddish abrasion of size 3.0x2.0 cm present over left side SC 45013/2015 STATE V VINOD FIR 1173/14 29/32 of forehead, 3 cm from midline, 1 cm above eyebrow.
3. Superficial thermal burns present over penis and groin region along with scrotum along with peeling of skin at places. Burned area is erythematous and about 1% of total body surface area.
The cause of death was found to be asphyxia as a result of ante- mortem compression of neck. PW13 Dr. Pankaj Malia also deposed about subsequent opinion dated 22.01.2015 Ex.PW13/B given by Dr. Priyal Jain and as per subsequent opinion Ex. PW13/B injury No. 3 i.e. superficial thermal burns over penis and groin region along with scrotum along with peeling of skin are possible caused by the weapons given for examination i.e. palta (kind of utensil) Ex.P7 and chammach (spoon) Ex.P8. The testimony of PW13 Dr. Pankaj Malia only proved that the deceased died due to asphyxia but it does not prove that asphyxia might be or should have been caused by cloth Ex.P1 recovered at instance of the accused. The subsequent opinion Ex. PW13/B only proved that injury no 3 as per post mortem report Ex. PW13/A might be caused by palta (kind of utensil) Ex.P7 and chammach (spoon) Ex.P8 also recovered at the instance of the accused but injury no 3 was not cause of death of the deceased. The prosecution could not relate and connect the accused with injuries found on dead body of the deceased as per post mortem report Ex. PW13/A.
31. In the adversarial system every person accused of an offence is always presumed to be innocent so that burden lies upon the prosecution to establish beyond reasonable doubt and all ingredients of the offence with which the accused is charged are made out. The accused enjoys the right to silence and cannot be compelled to reply. In a criminal trial requirement of proof does not lie in the realms of surmises and conjectures. The doubt must be of reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject matter. Doubt must be actual and substantial doubts as to the guilt of accused arising from the evidence or lack of it, as opposed to mere apprehensions. In case Shivani V State of Maharashtra, AIR 1973 SC 2662 the Supreme Court emphasized that our SC 45013/2015 STATE V VINOD FIR 1173/14 30/32 jurisprudential enthusiasm for presumed innocent must be moderated by the pragmatic need to make criminal justice potent and realistic. In State of U.P V Shankar, AIR 1981 SC 897 it was observed that it is function of the court to separate the grain from the chaff and accept what appears to be true and reject the rest. In Gurbachan Singh V Sat Pal Singh, AIR 1990 SC 209 it was observed that exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and there by destroy social defence. In Krishna Mochi V State of Bihar, 2002 Crl LJ 2645 it was observed that there is sharp decline in ethical values in public life and in present days when crime is looming large and humanity is suffering and society is so much affected thereby duties and responsibilities of the courts have become much more. It was observed as under:-
Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice changing world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals"
In Sujit Biswas V State of Assam, (2013) 12 SCC 406 it was held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. The Supreme Court in P. Satyanarayana Murthy V District Inspector of Police and others, (2015) 10 SCC 152 held that if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused. In Jose V Sub Inspector of Police, Koyilandy and others, (2016) 10 SCC 519, the Supreme Court held as under:-
In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non- existent but as entertainable by an impartial prudent and SC 45013/2015 STATE V VINOD FIR 1173/14 31/32 analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted".
32. The chain of circumstantial evidences led by the prosecution is visibly incomplete and incoherent to permit conviction of the accused without any trace of doubt. The prosecution has failed to elevate its case from the realm of "may be true" to "must be true" as is indispensably required in law for conviction on basis of circumstantial evidences on a criminal charge. The prosecution from the quality and quantity of the evidence could not prove the chain of circumstantial evidence which could only lead to one inference i.e. the guilt of the accused. The accused is acquitted for the offence punishable under section 302 IPC. Bail bond cancelled. Respective sureties discharged. Case property be confiscated to the State after the expiry of period of appeal. File be consigned to the record room.
Digitally signed by ANNOUNCED IN THE Sudhir Sudhir Kumar Jain Location: COURT ON 28th JULY, 2020 Kumar Karkardooma courts, Delhi Jain Date: 2020.07.28 16:13:07 +0530 (DR. SUDHIR KUMAR JAIN) DISTRICT AND SESSIONS JUDGE, NORTH-EAST KARKARDOOMA COURTS, DELHI SC 45013/2015 STATE V VINOD FIR 1173/14 32/32