Chattisgarh High Court
Ku. Purnima Bhagat vs State Of Chhattisgarh on 20 February, 2024
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
Neutral Citation
2024:CGHC:5746-DB
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 933 of 2017
(Arising out of judgment dated 23.07.2016 passed in
Sessions Trial No.22/2016 by learned 2nd Additional
Sessions Judge, Raigarh, CG)
Ku. Purnima Bhagat D/o Shri Rasiram Bhagat, Aged
About 23 Years, R/o Village Kamraga, Police Station
Lailunga, District Raigarh, Civil And Revenue District
Raigarh, Chhattisgarh.
---- Appellant
Versus
State Of Chhattisgarh Through Police Station
Lailunga, District Raigarh, Chhattisgarh.
---Respondent
For Appellant : Mr. Dheerendra Pandey, Advocate
For Respondent: Mr. Ankur Kashyap, Dy. Govt. Advocate
(Division Bench)
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sanjay Kumar Jaiswal
Judgment On Board
(20.02.2024)
Sanjay K. Agrawal, J.
1. This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 23.07.2016, passed by Neutral Citation 2024:CGHC:5746-DB 2 learned 2nd Additional Sessions Judge, Raigarh, Chhattisgarh in Sessions Trial No. 22/2016, by which, the appellant herein has been convicted for the offence punishable under Sections 302, 318 and 201 of Indian Penal Code and sentenced as under:
Conviction Sentence u/s 302 of Life imprisonment with fine of the IPC Rs.2,000/-, in default of payment of
fine, 6 months additional rigorous imprisonment.
u/s 318 of R.I. for 1 year with fine of Rs.1,000/-, the IPC in default of payment of fine, 3 months additional rigorous imprisonment. u/s 201 of R.I. for 5 years with fine of Rs.1,000/-, the IPC in default of payment of fine, 3 months additional rigorous imprisonment. 2. The case of prosecution, in brief, is that on
07.09.2015, at about 4.30 p.m, in village Kamraga, Police Station, Lailunga, district Raigarh, the appellant is alleged to have first strangulated her newborn baby girl to death and thereafter in order to screen herself from the offence thrown the dead body in Baburam pond, thereby committed the aforesaid offence. Further case of the prosecution is that the dead body was noticed by Kanhaiya Lal (PW-1) - Neutral Citation 2024:CGHC:5746-DB 3 village Kotwar, who informed the same to Padumdas Mahant (PW-2) and both of them visited the pond and saw that the dead body was of a full-grown newborn baby, wrapped in a piece of gown, floating in Baburam pond. They suspected that some unknown woman had murdered the newborn baby and thrown the dead body in the pond to conceal the birth. Pursuant to the report made by Kanhaiya Lal (PW-1) in Police Station Lailunga, Merg Intimation was recorded vide Ex.P-2 and FIR was registered vide Ex.P-1. Inquest proceedings were conducted vide Ex.P-8 and the dead body of deceased was subjected to postmortem, which was conducted by Dr. Manoj Patel (PW-10), who has proved the postmortem report Ex. P-14, in which, cause of death has been opined to be asphyxia as a result of strangulation. Dr. Manoj Patel (PW-10) has also stated that the hair of the unknown baby (deceased) was given to the Police for DNA test but no report in this regard has been brought on record. The appellant was arrested vide Ex. P-20 and her memorandum statement was recorded vide Ex. P-3 & p-4. The appellant was also medically examined by Dr. S. Tigga (PW-8) who has given MLC report Ex.P-
Neutral Citation 2024:CGHC:5746-DB 4 12, wherein he has opined that the appellant had given birth to a full-time baby within 45-50 days prior to her medical examination. Dr. S. Tigga (PW-7) also found rupture in vaginal wall and perineum skin below vagina.
3. After completion of investigation, appellant was charge-sheeted for the aforesaid offence under Sections 302, 318 and 201 of I.P.C. before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which, the appellant abjured her guilt and entered into defence stating that she has not committed any offence and she has been falsely implicated.
4. In order to bring home the offence, prosecution examined as many as 11 witnesses and exhibited 21 documents and the appellant-accused in support of his defence has neither examined any witness nor exhibited any document.
5. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant / accused for the offence as mentioned Neutral Citation 2024:CGHC:5746-DB 5 in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant questioning the impugned judgment of conviction and order of sentence.
6. Mr. Dhreerendra Pandey, learned counsel for the appellant, would submit that the unknown dead body which was subjected to postmortem was not identified to be that of the baby (daughter) of the appellant, therefore, the appellant cannot be convicted for the aforesaid offence. He would submit that the dead body was first noticed by Kanhaiya Lal (PW-1) and the same was recovered on 07.09.2015 at about 4.30 p.m. The matter being reported to the Police by Kanhaiya Lal (PW-1), Merg was recorded vide Ex.P-2 on 07.09.2015 at 8.05 p.m. However, memorandum statement of the appellant was recorded on 21.10.2015 at 1 p.m. Learned counsel for appellant submits that since the dead body had already been recovered much prior to the recording of memorandum statement of appellant, the memorandum statement would not be admissible. He would further submit that the trial Court has Neutral Citation 2024:CGHC:5746-DB 6 convicted the appellant on the basis of extra judicial confession made by the appellant to Kanhaiya Lal (PW-1), Padumdas Mahant (PW-2), Pitamber Bhagat (PW-6) and Bhuvneshwar Sidar (PW-9), however, the prosecution has not been able to prove it in accordance with law and even otherwise, the same is a very weak piece of evidence and which is not reliable. Therefore, the impugned judgment is liable to be set-aside and the appellant is entitled for acquittal on the basis of the principles of benefit of doubt.
7. Mr. Arvind Dubey, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for offence under Sections 302, 318 & 201 of I.P.C. As such, the appeal deserves to be dismissed.
8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection.
Neutral Citation 2024:CGHC:5746-DB 7
9. The first and foremost question for consideration is as to whether the death of deceased was homicidal in nature?
10. Learned trial Court has recorded an affirmative finding in this regard relying upon the postmortem report (Ex. P-14) proved by Dr. Manoj Patel (PW-10), in which, cause of death has been opined to be asphyxia as a result of strangulation, which in our considered opinion is a correct finding of fact based on evidence available on record and it is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding.
11. Now, the next question is, whether the appellant herein is the author of the crime?
12. The main contention on behalf of the appellant is that the prosecution has not been able to establish that the dead body of the deceased was that of the daughter of the appellant and therefore the appellant could not be convicted for the aforesaid offence.
13. True it is that Kanhaiya Lal (PW-1) and Padumdas Mahant (PW-2) first noticed the dead body of deceased and reported the matter to the Police, based on which, Neutral Citation 2024:CGHC:5746-DB 8 Merg Intimation (Ex. P-2) was recorded against unknown person. The dead body was also stated to be of a newborn unknown baby girl, therefore, the first and foremost duty on the part of the prosecution was to establish the identity of the deceased to be the daughter of the appellant. In this regard, the doctor Manoj Patel (PW-10) who conducted postmortem of the dead body has stated that he had preserved the hair of the deceased and sent it for DNA test but the report of DNA test has not been brought on record. The trial Court has also recorded the finding that DNA test has not been conducted which ought to have been conducted for finding out the parentage of the deceased. However, the trial Court, relying upon MLC report (Ex.P-12) given by Dr. S. Tigga (PW-8) who medically examined the appellant and opined since the appellant had given birth to a full-time baby within 45-50 days prior to her medical examination on the basis of the reasons assigned therein, has convicted the appellant for the aforesaid offence. However, in the absence of DNA report which the prosecution did not conduct for the reason best known to them, from the said medical report Ex.P-12, it is not established that Neutral Citation 2024:CGHC:5746-DB 9 the dead body of the newborn baby recovered from the pond was that of the baby of appellant.
14. In the matter of Aher Raja Khima v. State of Saurashtra1, in paragraph 20, their Lordships of the Supreme Court have clearly held that discovery of incriminating articles alleged to have been recovered by the accused is inadmissible in evidence if the police already knew where they were hidden, and observed as under: -
"(20) Then we come to the recoveries. The false beard and mask were found buried in the grounds of Dewayat's house and the appellant is said to have recovered them in the presence of panchas. But those discoveries are inadmissible in evidence because the police already knew where they were hidden. Their information was not derived from the appellant but from Dewayat (one of the other suspects). The way the police came to find this out was this."
15. The principle of law laid down by the Supreme Court in Aher Raja Khima (supra), was followed in the matter of State of Haryana v. Jagbir Singh and another2.
16. Similarly, while dealing with the question of evidentiary value of disclosure statement given by the 1AIR 1956 SC 217 2(2003) 11 SCC 261 Neutral Citation 2024:CGHC:5746-DB 10 accused under Section 27 of the Evidence Act, this Court in the matter of Belwanti v. State of C.G.3 observed as under:-
"20. While dealing with the same question, the Apex Court in the matter of Thimma Vs. The State of Mysore4 has held that once a fact is discovered from other sources there can be no fresh discovery even if relevant information is extracted from the accused. Relevant para of the said judgment reads as under: -
"10. ... One once a fact is discovered from other sources there can be no fresh discovery even if relevant information is extracted from the accused and Courts have to be watchful against the ingenuity of the investigating officer in this respect so that the protection afforded by the wholesome provisions of Sections 25 and 26 of the Indian Evidence Act is not whittled down by mere manipulation of the record of case diary. ..."
21. While dealing with the same question, the Apex Court in the matter of Jaffer Husain, Dastagir Vs. The State of Maharashtra5 has held that if the facts are within the knowledge of the police, then disclosure of statement of the accused is inadmissible in terms of Section 27 of the Evidence Act."
17. Similar proposition has been laid down by the Supreme Court in the matters of Makhan Singh v. 32010(2) C.G.L.J. 203 (DB) 4AIR 1971 SC 1871 5AIR 1970 SC 1934 Neutral Citation 2024:CGHC:5746-DB 11 State of Punjab6 and State of Rajasthan v. Kashi Ram7.
18. It is quite evident from the evidence available on record that the dead body of the deceased was noticed and recovered, according to Merg Intimation (Ex.P-2) and FIR (Ex.P-1), on 07.09.2015 at about 4.30 p.m. and the memorandum statement of the appellant was recorded much later on 21.10.2015 at 1 p.m. vide Ex.P-3 and P-4. Since the dead body has already been recovered much prior to the date of recording of memorandum statement of the appellant, the memorandum statement pursuant to which the recovery would not be admissible. Hence, the finding recorded by the trial Court in para-40 of the impugned judgment, in our considered opinion, is totally perverse in the light of the decisions of the Hon'ble Supreme Court relied in the preceding paragraphs.
Extra Judicial Confession
19. It is the settled principle of criminal jurisprudence that extra judicial confession is a weak piece of 6AIR 1988 SC 1705 7(2006) 12 SCC 254 Neutral Citation 2024:CGHC:5746-DB 12 evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the Court to base a conviction on such a confession. In such circumstances, the Court would be fully justified in ruling such evidence out of consideration. [See :
Sahadevan and another v. State of Tamil Nadu8]
20. In the matter of Sahadevan (supra), their Lordships of the Supreme Court further considered the earlier decisions including Balwinder Singh v. State of Punjab9 and pertinently laid down the principle in paragraphs 15.1, 15.8 and 16 as under :-
"15.1. In Balwinder Singh (supra) this Court stated the principle that: (SCC p. 265, para
10) 8(2012) 6 SCC 403 91995 Supp (4) SCC 259 Neutral Citation 2024:CGHC:5746-DB 13 "10. 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."
15.8. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambigous and should clearly convey that the accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it. (Ref. Sk. Yusuf v. State of W.B.10 and Pancho v. State of Haryana11.) The principles
16. Upon a proper analysis of the above referred judgments of this Court, it will be appropriate to state the principles which would make an extra-judicial confession an admissible piece of evidence capable of 10 (2011) 11 SCC 754 11 (2011) 10 SCC 165 Neutral Citation 2024:CGHC:5746-DB 14 forming the basis of conviction of an accused. These percepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra- judicial confession alleged to have been made by the accused :
(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence.
(iv)An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
(vi) Such statement essentially has to be proved like any other fact and in accordance with law."
21. The principle of law laid down in Sahadevan (supra) has further been followed with approval in the Neutral Citation 2024:CGHC:5746-DB 15 matter of Pradeep Kumar v. State of Chhattisgarh 12 and very recently in the matter of Pawan Kumar Chourasia v. State of Bihar13 wherein the following principle of law has been laid down by their Lordships in paragraph 5 of the report :-
"EVIDENTIARY VALUE OF EXTRA-
JUDICIAL CONFESSION
5. As far as extra-judicial confession is concerned, the law is well settled. Generally, it is a weak piece of evidence. However, a conviction can be sustained on the basis of extra-judicial confession provided that the confession is proved to be voluntary and truthful. It should be free of any inducement. The evidentiary value of such confession also depends on the person to whom it is made. Going by the natural course of human conduct, normally, a person would confide about a crime committed by him only with such a person in whom he has implicit faith. Normally, a person would not make a confession to someone who is totally a stranger to him. Moreover, the Court has to be satisfied with the reliability of the confession keeping in view the circumstances in which it is made. As a matter of rule, corroboration is not required. However, if an extra-judicial confession is corroborated by other evidence on record, it acquires more credibility. "
22. In the matter of Nikhil Chandra Mondal v. State of West Bengal14, principles of law have been laid down by their Lordships qua evidentiary value of extra judicial confession in paragraphs 13 & 15 as under:-
12Criminal Appeal No. 1304 of 2018, judgment dated 16/03/2023 132023 LiveLaw (SC) 197 142023 LiveLaw (SC) 171 Neutral Citation 2024:CGHC:5746-DB 16 "13.The trial Court observed that where the prosecution case is entirely based on extra-
judicial confession and the prosecution seeks conviction of the accused on that extrajudicial confession, the evidence of the witnesses before whom the alleged confessional statement was made, requires a greater scrutiny to pass the test of credibility.
15. It is a settled principle of law that extra- judicial confession is a weak piece of evidence. It has been held that where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. It has further been held that it is well-settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession. It has been held that there is no doubt that conviction can be based on extra- judicial confession, but in the very nature of things, it is a weak piece of evidence. Reliance in this respect could be placed on the judgment of this Court in the case of Sahadevan and Another v. State of Tamil Nadu (2012) 6 SCC
403. This Court, in the said case, after referring to various earlier judgments on the point, observed thus:
"16. Upon a proper analysis of the abovereferred judgments of this Court, it will be appropriate to state the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused:
(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
(ii) It should be made voluntarily and should be truthful.
Neutral Citation 2024:CGHC:5746-DB 17
(iii) It should inspire confidence.
(iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
(vi) Such statement essentially has to be proved like any other fact and in accordance with law."
23. Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that the extra judicial confession was made by the appellant before Kanhaiya Lal (PW-1), Padumdas Mahant (PW-2), Pitamber Bhagat (PW-6) and Bhuvneshwar Sidar (PW-9) when they had gone to the house of appellant. It is also evident from their statement that on being enquired by them, the appellant is said to have admitted but it cannot be said that the alleged extra judicial confession was made voluntarily. Thus, in the light of the judgments cited hereinabove, the alleged extra-judicial confession has not been proved against the appellant.
24. As such, there is no direct evidence available on record supporting the case of prosecution to hold that it is the appellant who has committed the offence in Neutral Citation 2024:CGHC:5746-DB 18 question. Hence, in our considered opinion, the prosecution has failed to discharge its initial or general burden or primary duty of proving the guilt of the accused beyond reasonable doubt and therefore, the appellant is entitled for acquittal on the basis of the principles of benefit of doubt.
25. Accordingly, the impugned judgment dated 23.07.2016 passed by 2nd Additional Sessions Judge, Raigarh, CG, in Sessions Trial No. 22/2016 is hereby set aside on the ground of benefit of doubt. The appellant stands acquitted from the offence under Sections 302, 318 & 201 of the IPC and she shall be set at liberty forthwith, unless she is required in connection with any other offence.
26. The appeal is allowed.
27. Let a certified copy of this judgment along with the original record be transmitted forthwith to the trial Court concerned and the Superintendent of Jail where the appellant is lodged and suffering jail sentence, for information and necessary action, if any.
Sd/- Sd/-
(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal)
Khatai Judge Judge