Madhya Pradesh High Court
Chandanlal vs The State Of Madhya Pradesh on 23 April, 2018
Bench: H. P. Singh, Rajeev Kumar Dubey
1
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Criminal Appeal No.1080/2008
Chandanlal
Vs.
The State of Madhya Pradesh
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For the appellant: Shri L.K. Mishra, advocate.
For the respondent: Shri Anubhav Jain, Government advocate.
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PRESENT:
HON'BLE SHRI JUSTICE H. P. SINGH
HON'BLE SHRI JUSTICE RAJEEV KUMAR DUBEY
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JUDGMENT
Reserved on 24/03/2018 Delivered on 23/04/2018 As per :- Rajeev Kumar Dubey, J This criminal appeal has been filed against the judgment dated 31/03/2008 passed by I Additional Sessions Judge, Baraseoni, District Balaghat in S.T.No.96/2007, whereby learned I Additional Sessions Judge found the appellant guilty for the offences punishable under Section 302 of the IPC and sentenced him for life with fine of Rs.500/- and in default of payment of fine amount further R.I. for one month.
2. Brief facts of the case are that on 31/07/2007 Sanjay Dubey (PW/11) the then Sub-Inspector of Police Station Katangi received a telephonic information that two persons were murdered at village Savangi. On that, he entered that information in the daily diary (Ex.P/20) and went to village Savangi, where Purnima (PW/1) 2 informed him that she resided at village Savangi with her husband Mitendra, son Yash Kumar @ Yashwant, daughter Satyawati, mother- in-law Pramilabai and appellant Chandanlal father-in-law since her husband was infirm, he could not do agricultural work. That day at 8:00 AM she had gone to field leaving behind her husband and children at home. At 5-6:00 PM when she returned from the field to her house she found that the door of the house was closed from outside. Then, she inquired about her husband and children to Rayanbai (kaki saas). On that she told that at about 1-1:30 PM she saw blood stains on the cloths of Satyawati. Rayanbai also told her that at that time Chainlal servant of Pappu Patel had also come her house and told her that appellant Chandanlal was telling that he had murdered his son Mitendra and grand son Yash Kumar @ Yashwant. Then, she (complainant Purnima) went to the house of Bhujwantabai along with her daughter Satyawati. Bhujwantabai also told her that appellant Chandanlal was telling her that he has murdered his son Mitendra and grand son Yash Kumar @ Yashwant. Thereafter, she (complainant Purnima) alongwith Bhujwantabai came back to her house and on entring into the house, she saw the dead bodies of her husband Mitendra and son Yash Kumar @ Yashwant lying on a bed. She also found so many injuries on their bodies. The appellant Chandanlal murdered her husband Mitendra and son Yash Kumar @ Yashwant due to dispute regarding selling of land. On that Sanjay Dubey (PW/11) wrote Dehati Nalishi (Ex.P/1) and marg intimation report (Ex.P/2 & P/3) and sent it to Police Station Katangi, District Balaghat for original registration through Bhimrao Meshram (PW/7), where Mukesh Nartam (PW/10) registered Crime No.67/07 (Ex.P/17) against the appellant for the offence punishable under Section 302 of the IPC.. Sanjay Dubey (PW/11) during investigation also prepared spot map Ex.P/4 and seized blood stains and simple soil from the spot and prepared seizure memo (Ex.P/10) and also seized one stick 3 and one bed sheet from the spot and prepared seizure memo (Ex.P/11 & Ex.P/12) respectively. He also seized one sando baniyan and trouser, which were wore by the appellant at that time and prepared seizure memo (Ex.P/13). He also prepared inquest report of dead bodies of Yash Kumar @ Yashwant and Mitendra (Ex.P/5 & Ex.P/6) respectively and sent their dead bodies for postmortem alongwith letter (Ex.P/21 & Ex.P/22) to Community Health Center, Katangi, where Dr. Pankaj Dubey (PW/5) conducted the postmortem of the dead bodies of Mitendra and Yash Kumar @ Yashwant and gave report (Ex.P/14 & Ex.P/15) respectively. He also seized blood stained clothes from the dead bodies of Mitendra and Yash Kumar @ Yashwant and sent it to Police Station, Katangi in a sealed packet through constable Surendra Dhuvare (PW/9). Sanjay Dubey (PW/11) seized that packet from the possession of Sanjay Dhuvare (PW/9) and prepared seizure memo (Ex.P/16). On 01/08/07 he arrested the appellant Chandanlal and prepared arrest memo (Ex.P/23) and recorded the case diary statements of Purnima (PW/1), Rayanbai (PW/2), Khadag Singh Patle (PW/3), Arvind Meshram (PW/4), Raju Patle & Jyoti and also sent all the seized articles to Forensic Science Laboratory, Sagar through S.P. Balaghat alongwith draft (Ex.P/24).
3. After investigation, Police filed charge-sheet before the learned JMFC, Waraseoni, District Balaghat, who committed the case to the Court of Sessions. On that ST.No.96/2007 was registered. Learned Ist Additional Sessions Judge framed the charge against the appellant for an offence punishable under Section 302 of the I.P.C. The appellant abjured his guilt and took the defence that he has been falsely implicated in the offence. However, after trial learned Ist Additional Sessions Judge found appellant guilty for the offence punishable under Section 302 of the IPC and sentenced him for life with fine of Rs.500/- and in default of payment of fine amount further R.I. for one month.
4Being aggrieved by the impugned judgment, appellant has preferred this appeal.
4. Learned counsel for the appellant submitted that there is no eyewitness of the incident and the prosecution case is solely based on extra judicial confession of the appellant and regarding extra judicial confession of appellant. The statements of Khadag Singh Patle (PW/3) and Arvind Meshram (PW/4) are not trustworthy. Although, it is alleged that Police also seized blood stained clothes from the appellant, which were allegedly worn by him at the time of incident, but the prosecution did not produce FSL report in absence of which it cannot be said that the stains found on the appellant's cloths were of human blood. Learned trial Court without appreciating all these facts wrongly found the appellant guilty for the aforesaid offence.
5. On the other hand learned counsel for the State submitted that from the statement of prosecution witnesses guilt of the appellant is clearly proved, so the learned trial Court did not commit any mistake in finding the appellant guilty for the aforesaid offence.
6. This Court has gone through the record and arguments advanced by the learned counsels for the parties.
7. On the point that Mitendra and Yash Kumar @ Yashwant died on 31/07/07 in the house of the complainant Purnimabai and their death was culpable homicide, which amounts to murder, there is no ambiguity in the statements of prosecution witnesses. Sanjay Dubey (PW/11) clearly stated that on 31/07/07 on a telephonic information that two persons have been murdered at village Savangi, he entered this information in daily diary (Ex.P/20) and thereafter he went to village Savangi, where he found the dead bodies of Mitendra and Yash Kumar @ Yashwant in the house of complainant Purnima (PW/1). On that, he prepared spot map (Ex.P/4) and seized blood stains, simple soil, one blood stained stick and blood stained bed sheet from the spot and 5 prepared seizure memo (Ex.P/10 to Ex.P/12) and also prepared inquest report of the dead bodies of deceased Yash Kumar @ Yashwant and Mitendra (Ex.P/5 & Ex.P/6) respectively and sent their dead bodies for postmortem alongwith letter (Ex.P/21 & Ex.P/22) to Community Health Center, Katangi. His statement is also corroborated by the inquest report of the dead bodies of deceased Yash Kumar @ Yashwant and Mitendra (Ex.P/5 & Ex.P/6) in which it is mentioned that they died due to injuries sustained by them. In this regard prosecution story is also supported by the statement of Dr. Pankaj Dubey (PW/5) who conducted the postmortem of dead body of deceased Mitendra and Yash Kumar @ Yashwant. He clearly deposed that on 01/08/2007 he was posted as Medical Officer at Community Health Center, Katangi and on that date at 9:35 AM he conducted postmortem of dead body of deceased Mitendra and found following injuries on his dead body :-
1. Multiple laceration present on whole forehead and skull bone was also fractured.
2. A lacerated wound sized 3 ½ cm x 4 cm on right maxillary region and maxillary bone was also fractured.
3. A lacerated wound size 2 ½ cm x 4 cm on chin and lower lip.
4. Lower incisor 2 canine teeth dislocated with laceration of gums.
8. In his opinion deceased Mitendra died due to coma, which was caused due to head injury and duration of death was between 18 to 24 hours from the postmortem.
9. He further deposed that on 01/08/07, at 11:10 AM he also conducted postmortem of dead body of Yash Kumar @ Yashwant and found following injuries on his dead body:-
1. Lacerated wound size 1"x ½"x bone, deep over left side of forehead above eyebrow. Blood stains present on forehead.6
10. In his opinion Yash Kumar @ Yashwant died due to coma, which was caused due to head injury and duration of death was between 18 to 24 hours from the postmortem. In this regard his statement is also supported from the postmortem report (Ex.P/5 & Ex.P/6) of deceased Yash Kumar @ Yashwant and Mitendra respectively given by him. At this point, appellant has not given any significant challenge to the statements of the above-mentioned witnesses in their cross-examination. So there is no reason to disbelieve their statements in this regard. As appears from postmortem reports that assailant caused the injuries on the head of the both the deceased and they suffered head injuries in the incident, which clearly shows that the assailant caused those injuries with the intention to murder them. So from the statements of above-mentioned witnesses, it is clearly proved that Yash Kumar @ Yashwant and Mitendra died on 31/07/07 in the house of the complainant Purnimabai and their death was culpable homicide, which amounts to murder.
11. On the point that appellant murdered his son Mitendra and grand son Yash Kumar @ Yashwant, there is no direct evidence on record that anybody saw appellant assaulting deceased Mitendra and Yash Kumar @ Yashwant. Prosecution produced only following circumstantial evidence against appellant :-
1. On the date of incident i.e. 31/07/07 Sanjay Dubey (PW/11) seized blood stained clothes from the possession of appellant, which were wore by him at that time.
2. Appellant was having anonymity with deceased Mitendra due to land dispute.
3. The appellant admitted his guilty before Khadag Singh Patle (PW/3) and Arvind Meshram (PW/4).
12. Regarding the first circumstance although, Sanjay Dubey (PW/11) deposed that on 31/07/07 on receiving the information that two persons have been murdered at village Savangi, he went to village 7 Savangi, where in the house of complainant Purnima (PW/1) he found the dead bodies of Mitendra and Yash Kumar @ Yashwant. On that date at 10:00 PM he seized one blood stained sando vest and trouser, which appellant had worn at that time and prepared seizure memo (Ex.P/13). In this regard his statement is also corroborated from the statement of Arvind Meshram (PW/4). But prosecution did not produce FSL report of those clothes. Prosecution did not even produce that cloths before the Court and in absence of FSL report it cannot be said that the stains which were found by Sanjay Dubey (PW/11) and Arvind Meshram (PW/4) on the clothes of the appellant were of human blood. From the statement of Sanjay Dubey (PW/11) and Arvind Meshram (PW/4), it is only proved that on the date of incident they saw some stains that looked like blood stains on the clothes of the appellant, which he was wearing at that time. But, in the absence of FSL report it can not be assumed that the stains found by Sanjay Dubey (PW/11) and Arvind Meshram (PW/4) on the cloths of the appellant were of human blood. Learned trial Court committed mistake in holding that on the date of incident i.e. 31/07/07 the clothes seized by Sanjay Dubey (PW/11) from the possession of appellant, which he had worn at that time, contained blood stains.
13. Regarding second circumstance Poornima (PW/1) deposed that her husband Mitendra demanded share in the property from appellant due to which appellant murdered her husband Mitendra and son Yash Kumar @ Yashwant. But in the FIR (Ex.P/1) which was logged by the complainant soon after the incident this fact was not mentioned. So in this regard her statement becomes after thought, which can not be believed. So it is also not proved that appellant had a motive to murder Mitendra and Yash Kumar @ Yashwant.
14. Regarding extra-judicial confession of appellant, Khadag Singh Patle (PW/3) deposed that on 31/07/07 at 2-2:30 PM when he 8 returned to his house from the field, he saw that the appellant Chandanlal was sitting before his father and when he went near to appellant Chandanlal, he informed him that he had murdered his son Mitendra and grand son Yash Kumar @ Yashwant. His statement is also corroborated from the statement of Arvind Meshram (PW/4), who also deposed that on 31/07/07 in the evening when he was at his home, he got information that appellant had murdered his son Mitendra and grand son Yash Kumar @ Yashwant. On that he went to appellant's house, where he found that the dead bodies of Mitendra and Yash Kumar @ Yashwant were lying on a bed. Then, he went to Sthai Patel's house, where appellant was sitting alongwith villagers. There appellant told that he had murdered his son Mitendra and grand son Yash Kumar @ Yashwant. There is no infirmity in the statements of Khadag Singh Patle (PW/3) and Arvind Meshram (PW/4) in this regard. Appellant crossed these witnesses at length on that point, but nothing came out in their cross-examination, which shows that these witnesses gave false statement in this regard. There is also no evidence on record which shows that these witnesses had any animosity with the appellant or had any other reason to falsely implicate appellant in the crime. So there is no reason to disbelieve there statements. From their statements, it is clearly proved that on the date of incident at around 2:00 PM appellant admitted before Khadag Singh Patle (PW/3) and Arvind Meshram (PW/4) that he had murdered his son Mitendra and grand son Yash Kumar @ Yashwant. So from the prosecution evidence the fact that appellant admitted before Khadag Singh Patle (PW/3) and Arvind Meshram (PW/4) that he had murdered his son Mitendra and grand son Yash Kumar @ Yashwant is proved against the appellant.
15. On the point whether conviction can be based only on the basis of the extra judicial confession of the accused Hon'ble Apex Court in the case of Sahadevan & Anr Vs. State of T.Nadu (2012) 6 9 SCC 403 after considering the earlier judgements of Apex Court observed as under :-
"15.1. In Balwinder Singh v. State of Punjab [1995 Supp (4) SCC 259 :
1996 SCC (Cri) 59] this Court stated the principle that: (SCC p. 265, para 10) "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."
15.2. In Pakkirisamy v. State of T.N. [(1997) 8 SCC 158 : 1997 SCC (Cri) 1249] the Court held that: (SCC p. 162, para 8) "8. ... 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."
15.3. Again in Kavita v. State of T.N. [(1998) 6 SCC 108 : 1998 SCC (Cri) 1421] the Court stated the dictum that: (SCC p. 109, para 4) "4. There is no doubt that convictions can be based on extra- judicial confession but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon the veracity of the [witnesses] to whom it is made." 15.4. While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extra-judicial confession, this Court in State of Rajasthan v. Raja Ram [(2003) 8 SCC 180 : 2003 SCC (Cri) 1965] stated the principle that: (SCC p. 192, para 19) "19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The 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."
The Court further expressed the view that: (SCC p. 192, para 19) "19. ... 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...."
15.5. In Aloke Nath Dutta v. State of W.B. [(2007) 12 SCC 230 : (2008) 2 SCC (Cri) 264] the Court, while holding the placing of reliance on extra- judicial confession by the lower courts in absence of other corroborating material as unjustified, observed: (SCC pp. 265-66, paras 87 & 89) 10 "87. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that for the said purpose the court has to satisfy itself in regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession; and (iii) corroboration.
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89. A detailed confession which would otherwise be within the special knowledge of the accused may itself be not sufficient to raise a presumption that confession is a truthful one. Main features of a confession are required to be verified. If it is not done, no conviction can be based only on the sole basis thereof."
15.6. Accepting the admissibility of the extra-judicial confession, the Court in Sansar Chand v. State of Rajasthan [(2010) 10 SCC 604 :
(2011) 1 SCC (Cri) 79] held that: (SCC p. 611, paras 29-30) "29. 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. [Vide Thimma and Thimma Raju v. State of Mysore [(1970) 2 SCC 105 : 1970 SCC (Cri) 320] , Mulk Raj v. State of U.P. [AIR 1959 SC 902 : 1959 Cri LJ 1219] , Sivakumar v.
State [(2006) 1 SCC 714 : (2006) 1 SCC (Cri) 470] (SCC paras 40 and 41 : AIR paras 41 and 42), Shiva Karam Payaswami Tewari v. State of Maharashtra [(2009) 11 SCC 262 : (2009) 3 SCC (Cri) 1320] and Mohd. Azad v. State of W.B. [(2008) 15 SCC 449 : (2009) 3 SCC (Cri) 1082] ]
30. In the present case, the extra-judicial confession by Balwan has been referred to in the judgments of the learned Magistrate and the Special Judge, and it has been corroborated by the other material on record. We are satisfied that the confession was voluntary and was not the result of inducement, threat or promise as contemplated by Section 24 of the Evidence Act, 1872."
15.7. Dealing with the situation of retraction from the extra-judicial confession made by an accused, the Court in Rameshbhai Chandubhai Rathod v. State of Gujarat [(2009) 5 SCC 740 : (2009) 2 SCC (Cri) 881] held as under: (SCC pp. 772-73, para 53) "53. It appears therefore, that the appellant has retracted his confession. When an extra-judicial confession is retracted by an accused, there is no inflexible rule that the court must invariably accept the retraction. But at the same time it is unsafe for the court to rely on the retracted confession, unless 11 the court on a consideration of the entire evidence comes to a definite conclusion that the retracted confession is true."
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, unambiguous 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. [(2011) 11 SCC 754 : (2011) 3 SCC (Cri) 620] and Pancho v. State of Haryana [(2011) 10 SCC 165 :
(2012) 1 SCC (Cri) 223] .) 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 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.
(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".
16. Hon'ble Apex Court in the case of Baskaran & Anr Vs. State Of Tamil Nadu, (2014) 5 SCC 765 held :-
"It is no doubt true that this Court time and again has held that an extra-judicial confession can be relied upon only if the same is voluntary and true and made in a fit state of mind. The value of the evidence as to the confession like any other evidence depends upon the veracity of the witness to whom it has been made. The value of the 12 evidence as to the confession depends on the reliability of the witness who gives the evidence. But it is not open to any court to start with the presumption that extra-judicial confession is insufficient to convict the accused even though it is supported by the other circumstantial evidence and corroborated by independent witness, which is the position in the instant case. The courts cannot be unmindful of the legal position that if the evidence relating to extra-judicial confession is found credible after being tested on the touchstone of credibility and acceptability, it can solely form the basis of conviction".
17. From the above principle laid down by the Hon'ble Apex Court it is amply clear that the conviction can also be recorded on the sole basis of extra-judicial confession, but in that case it must be voluntary and should be truthful and trustworthy.
18. If we examine the present case in the light of above mentioned principles laid down by the Hon'ble Apex Court, except for the extra-judicial confession of the appellant, there is no other evidence on record which further corroborates the prosecution story. But from the evidence it appears that soon after the incident appellant admitted his guilt before the above mentioned witnesses. There is no infirmity in the statements of Khadag Singh Patle (PW/3) and Arvind Meshram (PW/4) in this regard. There is no evidence on record which shows that these witnesses were having any animosity with the appellant or had any other reason to falsely implicate appellant in the crime. From their statements it is clearly proved that on the date of incident soon after the incident appellant admitted before Khadag Singh Patle (PW/3) and Arvind Meshram (PW/4) that he had murdered his son Mitendra and grand son Yash Kumar @ Yashwant. There is no evidence on record which shows that appellant admitted his guilt due to any inducement, threat or promise.
19. So in the considered opinion of this Court conviction of appellant for the crime can be based solely on the basis of said extra- judicial confession of appellant.
1320. Hence learned trial Court did not commit any mistake in relying on the extra-judicial confession of appellant and finding him guilty for the offence punishable under section 302 of IPC for murdering his son Mitendra and grand son Yash Kumar @ Yashwant.
21. Hence, appeal filed by the appellant/accused stands dismissed.
22. The appellant, who is in the custody shall serve the remaining part of the sentence, in accordance with law. The period already undergone shall be set off from the period of substantive jail sentence.
23. Accordingly, the appeal stands dismissed.
(H.P. Singh) (Rajeev Kumar Dubey)
(JUDGE) (JUDGE)
as/
Digitally signed by ANURAG SONI
Date: 2018.04.23 18:02:34 +05'30'