Chattisgarh High Court
Devendra Kumar Sahu vs State Of Chhattisgarh on 11 July, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 1033 of 2013
Devendra Kumar Sahu S/o Murari Lal sahu, Aged
about 21 years, R/o Village Khargahani, Police
Station Kota, Civil and Revenue Distt. Bilaspur,
Chhattisgarh.
Appellant
Versus
State of Chhattisgarh, Police Station Kota,
Distt. Bilaspur, Chhattisgarh.
Respondent
For Appellant : Mr. Siddharth Pandey, Advocate
For State : Mr. Sunil Otwani, Addl. A.G.
and Mr. Anmol Sharma, P.L.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sanjay S. Agrawal
Judgment on Board
11/07/2022
Sanjay K. Agrawal, J.
1. This criminal appeal under Section 374(2) of CrPC is directed against the impugned judgment of conviction and order of sentence dated 07/08/2013 passed in Sessions Trial No. 175/2011 whereby learned 3rd Additional Session Judge, Bilaspur has though acquitted the coaccused persons namely Murarilal Sahu, Yogesh Kumar Sahu and Narmadabai Sahu from charges punishable under 2 Sections 302/34 and 304(B)/34 of IPC but has convicted the appellant herein for offence punishable under Section 302 of IPC and sentenced him to life imprisonment and fine of Rs. 1,000/ and in default of payment of fine further R.I. for three months.
2. The case of the prosecution, in brief, is that on 25/08/2011 at about 9:30 PM at village Khargahni, Distt. Bilaspur, the appellant herein along with three coaccused persons in furtherance of their common intention murdered Sarojini Sahu with an axe on the pretext of dowry and thereby, committed the offence.
3. Further case of the prosecution, in brief, is that complainant Yogesh Sahu (husband of the deceased) lodged a report at Police Station Kota that he works as a 'chowkidar' at Forest Department and on 25/08/2011 at about 08:00 AM, he had gone to work and his wife Sarojini Sahu was at home. At about 11:30 AM, he received a phone call from his younger brother Rajesh (though cited witness but not examined by the prosecution) that their brother Devendra (the appellant herein) has killed Sarojini Sahu and blood is oozing out of her neck. Upon asking, 3 complainant Yogesh Sahu got to know that appellant had killed his wife Sarojini Sahu by assaulting her with an axe.
4. On the basis of the said report, FIR was lodged vide Ex. P/10 and merg intimation was registered vide Ex. P/11 and the wheels of investigation started running. Najri naksha was prepared vide Ex. P/12 and Bloodstained soil as well as plain soil were seized from the spot vide Ex. P/6 along with the pieces of bangles worn by the deceased. The witnesses were summoned vide Ex. P/1 and thereafter, inquest was conducted vide Ex. P/2 and the dead body of deceased Sarojini Sahu was sent for postmortem at Community Health Center, Kota which was conducted by Dr. Sandeep Dwivedi (P.W.11)) and the postmortem report has been filed as Ex. P/9 according to which cause of death is excessive internal bleeding and nature of death is homicidal. Pursuant thereof, memorandum statement of the appellant/accused was recorded vide Ex. P/5 and recovery of axe along with the shirt worn by him was made from his possession. The seized articles were sent for chemical examination vide Ex. P/19 but no FSL report has been brought on record. The appellant herein along with other accused persons namely 4 Murarilal Sahu (fatherinlaw), Yogesh Kumar Sahu (husband) and Narmadabai Sahu (motherinlaw) were taken into custody. Thereafter, statement of the witnesses were recorded under Section 161 of CrPC and after due investigation, the appellants/accused persons was chargesheeted for offence punishable under Section 302/34 and Section 304B/34 of IPC which was committed to the Court of Session for hearing and disposal in accordance with law. The appellants/accused persons abjured their guilt and entered into defence.
5. In order to bring home the offence, prosecution examined as many as 17 witnesses and brought into record 31 documents. Statement of the accused persons were recorded under Section 313 of CrPC wherein they denied guilt, however, they examined none in their defence but the statements of Lahura Bai, Bhagwati Sahu, Santosh Kumar Sahu and Ramsnehi Sahu have been exhibited as D/1 to D/4, respectively.
6. Learned trial Court, after appreciating the oral and documentary evidence on record, though acquitted Murarilal Sahu (fatherinlaw), Yogesh Kumar Sahu (husband) and Narmadabai Sahu (mother 5 inlaw) from the charges levelled against them but convicted the appellant herein Devendra Kumar Sahu (brotherinlaw) for offence punishable under Section 302 of IPC, finding the following two circumstances established :
(i) that, the appellant has made extrajudicial confession to Rai Kumar Dhruw (P.W.4); and
(ii) that, pursuant to the disclosure statement made by the appellant/accused vide Ex. P/5, recovery of bloodstained axe has been made from his possession.
7. Mr. Siddharth Pandey, learned counsel for the appellant/accused, would submit that the trial Court has committed grave legal error in convicting the appellant for the aforesaid offence particularly when the extrajudicial confession allegedly made by the appellant before Rai Kumar Dhruw (P.W.4) has not been proved in accordance with law. It is suspicious and doubtful as the conduct of Rai Kumar Dhruw (P.W.
4) is not free from doubt as even though the appellant made extrajudicial confession before him but he neither reported the incident at the Police Station nor informed about the incident to Yogesh Kumar Sahu (husband of the deceased) or 6 Murarilal Sahu or Narmadabai Sahu, being the fatherinlaw and motherinlaw of the deceased and only informed Rajesh (brotherinlaw of deceased), who though is a cited witness but has not been examined by the prosecution. Moreover, it has been stated by Rai Kumar Dhruw (P.W.4) that appellant had come to him in a motorcycle owned by one Munna Tailor, but he has neither been cited nor been examined, as such, the statement of Rai Kumar Dhruw (P.W.4) that appellant made extrajudicial confession before him could not have been relied upon by the trial Court to convict the appellant for the aforesaid offence. He would rely upon the decision rendered by the Supreme Court in the matter of Sahadevan and Another v. State of Tamil Nadu1 which has further been followed in Kusal Toppo and Another v. State of Jharkhand2. He would further submit that the disclosure statement made by the appellant/accused vide Ex. P/5 is also not reliable as the appellant herein was not the only inmate residing at the house where the incident took place. As evident from the record, memorandum statement was recorded on 25/08/2011 at 04:30 PM and pursuant thereof, the axe was 1 (2012) 6 SCC 403 2 (2019) 13 SCC 676 7 recovered at 04:50 PM vide Ex. P/4 and the appellant was arrested at 07:30 PM, as such, it has not been proved by the prosecution that the appellant was the sole person living at that house and the axe is said to have been seized from the parchhi (open courtyard) of the house which is not under the exclusive possession of the appellant, therefore, in view of the decision rendered by the Supreme Court in the matter of Mani v. State of Tamil Nadu3, the recovery of the axe allegedly made from possession of the appellant is doubtful and even otherwise, recovery is a weak kind of evidence and cannot be wholly relied upon for convicting the accused. Thus, the impugned judgment recording conviction of the appellant/accused under Section 302 of IPC and awarding sentence as mentioned above is liable to be set aside.
8. Per Contra, Mr. Sunil Otwani, learned Additional Advocate General on behalf of the respondent/State, would submit that the extra judicial confession made by the appellant before Rai Kumar Dhruw (P.W.4) inspires confidence as Rai Kumar Dhruw (P.W.4) informed about the incident to Rajesh (brother of appellant and 3 (2009) 17 SCC 273 8 Yogesh Kumar Sahu) and he did not lodge a report at the Police Station simply out of fear, as such, his testimony cannot be discredited simply because he did not report the matter to the Police Station and even otherwise, Rajesh being the brother of Yogesh Kumar Sahu has rightly not been examined and Munna Tailor has rightly not been cited as prosecution witness. He would further submit that pursuant to the disclosure statement (Ex. P/4), recovery of blood stained axe and and his shirt containing blood like spots have been made from the possession of the appellant, but merely because FSL report has not been brought on record, recovery cannot be doubted, as such, the instant appeal deserves to be dismissed.
9. We have heard learned counsel for the parties, considered their rival submissions made herein above and went through the records with utmost circumspection.
10. The first question for consideration would be whether the death of deceased Sarojinibai was homicidal in nature ?
11. Learned trial Court has recorded an affirmative finding with regard to this question on the basis 9 of postmortem report (Ex. P/9) wherein Dr. Sandeep Dwivedi (P.W.11), who has conducted postmortem, has clearly stated that the cause of death is excessive internal bleeding owing to injuries suffered by the deceased on her neck and the nature of death is said to be homicidal. After hearing learned counsel for the parties and after going through the postmortem report (Ex. P/9) as well as going through the evidence of Dr. Sandeep Dwivedi (P.W.11), we are satisfied that learned trial Court has rightly held the death of Sarojinibai to be homicidal in nature. We hereby affirm the said finding recorded by the trial Court.
12. The next question for consideration is whether the trial Court is justified in holding that the appellant herein is the author of the crime and thereby, convicting him for offence under Section 302 of IPC whereas the other three accused persons have already been acquitted ?
13. As noticed hereinabove, in order to convict the appellant, learned trial Court has relied upon two broad circumstances to connect the appellant with the offence in question. Firstly, that the appellant has made extra judicial confession to 10 Rai Kumar Dhruw (P.W.4) and secondly, that pursuant to the memorandum statement (Ex. P/5), the axe used in the offence has been recovered vide Ex. P/4. We will consider both the circumstances one by one.
Extra judicial confession
14. It is a settled principle of criminal jurisprudence that extra judicial confession is a weak piece of 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 (supra)]
15. In the matter of Sahadevan (supra), Their Lordships of the Supreme Court further considered the earlier decisions including Balwinder Singh 11 v. State of Punjab4 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) "10. An extrajudicial 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 extrajudicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance."
15.8. Extrajudicial 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 extrajudicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extrajudicial 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.5 and Pancho v. State of Haryana6.) The principles
16. Upon a proper analysis of the abovereferred judgments of this Court, it will be appropriate to state the principles which would make an extrajudicial confession an admissible piece of evidence capable of 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 extrajudicial confession alleged to have been made by the accused :
(i) The extrajudicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
4 1995 Supp (4) SCC 259 5 (2011) 11 SCC 754 6 (2011) 10 SCC 165 12
(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence.
(iv) An extrajudicial 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 extrajudicial 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."
16. Reverting to the facts of the present case in light of the principles of law laid down by Their Lordships of the Supreme Court in the aforesaid cases including Sahadevan (supra), it is quite vivid that in the instant case the appellant is said to have made extra judicial confession to Rai Kumar Dhruw (P.W.4), who in his statement before the Court, has only stated that appellant came to his house in a motorcycle and said that he is not feeling well and is going to Kota and thereafter, Rai Kumar Dhruw (P.W.4) accompanied him and after reaching near Kota Police Station, the appellant informed him that he has murdered his sisterinlaw Sarojini Sahu and is going to Police Station to lodge a report and thereafter, the appellant requested him to go back to the village and return the motorcycle to 13 Munna Tailor. Rai Kumar Dhruw (P.W.4) immediately came back to the village and informed Rajesh Sahu (brother of appellant and Yogesh Kumar Sahu) about the incident and returned the motorcycle to Munna Tailor. Learned trial Court has relied upon the said extrajudicial confession but a careful perusal of the statement of Rai Kumar Dhruw (P.W.4) would show that this witness has not disclosed prior acquaintance with Rajesh Sahu. Moreover, he did not even inform about the incident to Yogesh Kumar Sahu (husband of the deceased) or to Murari Lal Sahu (father inlaw of deceased) or Narmada bai Sahu (mother inlaw of deceased) and though Rajesh Sahu has been cited as witness but for the reasons best known to the prosecution, he has not been examined before the Court. Furthermore, as stated by Rai Kumar Dhruw (P.W.4), the appellant came to his house by a motorcycle owned by one Munna Tailor of the village and after reaching Kota, he told Rai Kumar Dhruw that he is going to lodge FIR at police station and asked him to return the motorcycle to Munna Tailor, but admittedly, appellant did not lodge any FIR and it was lodged by complainant Yogesh Kumar Sahu (husband of the deceased) vide Ex. P/10 and even otherwise, Munna 14 Tailor has neither been cited nor been examined before the Court to prove that appellant indeed took his motorcycle and thereafter it was returned to him by Rai Kumar Dhruw (P.W.4). As such, in our considered opinion, the extra judicial confession allegedly made by the appellant to Rai Kumar Dhruv (P.W.4) does not inspire confidence and does not appear to be truthful as it suffers from material discrepancies and inherent improbability. Since the prosecution has miserably failed to prove the extra judicial confession, we are unable to hold that it was voluntarily made by the appellant to Rai Kumar Dhruw (P.W.4) or that it is truthful as it is surrounded by suspicious circumstances and its credibility is doubtful, therefore, we reject the testimony of Rai Kumar Dhruw (P.W.4) stating that appellant has made extra judicial confession before him.
Recovery of bloodstained axe
17. The next circumstance that has been found proved by the trial Court against the appellant herein is the recovery of bloodstained axe made from his possession vide Ex. P/4 pursuant to his memorandum statement (Ex. P/5).
15
18. The memorandum statement of the appellant/accused is said to have been recorded on 25/08/2011 at 04:30 PM vide Ex. P/5 and recovery of the axe has been made from the open courtyard of the house (parchhi) vide Ex. P/4 and thereafter, the appellant has been arrested at about 07:30 PM vide P/8. Admittedly, other accused persons namely Murari Lal Sahu (fatherinlaw of deceased), Yogesh Kumar Sahu (husband of deceased) as well as Narmadabai Sahu (motherin law of deceased) were also staying at the house and it has not been proved that appellant was in exclusive possession of the said house during that period and that too, of the parchhi from where seizure of bloodstained axe has been made.
19. The Supreme Court in the matter of Mani (supra), considering the nature, scope and applicability of Section 27 of the Indian Evidence Act, 1872, has held that discovery is a weak kind of evidence and cannot be wholly relied upon and has observed the following in paragraph 26 of the judgment : "26. The discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the 16 prosecution case. We have already held that the prosecution has failed to prove that the house where alleged bloodstains were found belonged exclusively or was possessed exclusively by the appellant, we have further pointed out that the discovery was absolutely farcical. There is one other very relevant factor ignored by both the courts that the prosecution never made any attempts to prove that the clothes belonged to the appellants. There is literally no evidence to suggest anything to that effect. Therefore, even if we accept the discovery, it does not take us anywhere near the crime. Both the courts below have ignored this very important aspect. Once these two important circumstances are disbelieved, there is nothing which would remain to support the prosecution theory."
20. In the instant case, as noticed hereinabove, pursuant to the memorandum statement of the appellant/accused vide Ex. P/5, recovery of blood stained axe has been made vide Ex. P/4 from the parchhi of the house owned and possessed by not only the appellant but three other family members and one Rajesh Sahu who has not been examined before the Court. As such, prosecution has failed to establish that the corner of the parchhi from where recovery has been made was in exclusive possession of the appellant. Even otherwise, the memorandum statement was recorded on 12/08/2011 at about 04:30 PM and thereafter appellant was not the only inmate living in the house in question from where the bloodstained axe has 17 been recovered. Apart from this, the seized articles including the bloodstained axe as well as appellant's blood stained shirt were sent for chemical examination on 10/10/2011 vide Ex. P/19 but the FSL report has not been brought on record to establish that human blood was found on the axe and the shirt of the appellant. Moreover, the police officer, conducting investigation, even made a query to Dr. Sandeep Dwivedi (P.W.11) as to whether the blood like substance found on the axe is human blood or not and whether the injuries sustained by the deceased could have been caused by the seized axe. Dr. Sandeep Dwivedi (P.W.11) has opined in paragraph 13 of his statement that in absence of FSL report, it cannot be established that the blood like substance found on the axe is human blood and that if the seized axe is used as an attacking weapon, it can cause the injuries which were suffered by the deceased.
21. In the matter of State of Rajasthan v. Wakteng7, the Supreme Court has considered the issue where the sword recovered was not sent for FSL and no report was exhibited and even no question in that 7 (2007) 14 SCC 550 18 regard was put to the accused and held as under : "17. So far as recovery of the sword is concerned, the same was not sent for any examination by the Forensic Science Laboratory and the report if any was not exhibited and even no question in that regard was put to the accused while he was examined under Section 313 of the Code.
18. Above being the position, the High Court has rightly held that the prosecution has failed to establish the accusations against the respondent. The appeal is sans merit and is dismissed."
22. As sought from the aforesaid discussion, we are of the opinion that firstly, the extra judicial confession allegedly made by the appellant/accused to Rai Kumar Dhruw (P.W.4) is not truthful and is surrounded by suspicious circumstances and thus suffers from material discrepancies and inherent improbability, therefore, it would be unsafe to rely upon it to convict the appellant. Secondly, recovery of bloodstained axe made pursuant to the memorandum statement of the appellant/accused has also not been proved by the prosecution as it could not be proved that the house rather the parchhi from where the axe has been seized was in exclusive possession of the appellant. Thirdly, the FSL report proving the blood stains on the axe as well as the shirt worn by the appellant was 19 though sought, but prosecution has also failed to bring that on record. As such, we are of the considered opinion that it is a case of circumstantial evidence and prosecution has utterly and miserably failed in establishing the chain of circumstances to hold that appellant is the author of the crime in question. In that view of the matter, we have no option except to set aside the impguned judgment recording conviction of the appellant for offence punishable under Section 302 of IPC and awarding sentence as mentioned above. The appellant is acquitted of the charge punishable under Section 302 of IPC and he be released forthwith, if not required in any other case.
23. Accordingly, the criminal appeal is allowed.
Sd/ Sd/
(Sanjay K. Agrawal) (Sanjay S. Agrawal)
Judge Judge
Harneet