Madhya Pradesh High Court
Kammoda vs State Of Madhya Pradesh on 4 May, 2005
Equivalent citations: 2005(3)MPHT98
JUDGMENT A.K. Gohil, J.
1. This appeal is directed against the conviction of appellant under Section 302, IPC and sentence of imprisonment for life and fine of Rs. 1,000/-; in default of payment of fine one year's further R.I. by Additional Sessions Judge, Pichhore in Sessions Trial No. 112/90, vide judgment dated 1-11-1991.
2. As per prosecution story on 2-1-1990 Officer Incharge of Police Station, Khaniadhana received information from complainant Pahalua, who is Chowkidar and resident of Village Gudar that one dead body of an unknown lady is lying in the forest of Gudar under the stones. On the basis of the aforesaid report merg was registered, thereafter matter was investigated. Investigating Officer P.W. 15 R.V. Sharma recorded the statement of Chowkidar and thereafter informed the Tehsildar as well as the doctor. Deadbody was taken out by Tehsildar and its seizure memo Ex. P-17 was prepared. Photographs of the dead body were taken and spot map was also prepared. Pieces of rope, bangles and sleeper were also seized from spot by Ex. P-4 and dead body was referred for post-mortem examination. One piece of similar saree, which was on the body of the deceased, was also recovered from the house of the appellant. Statements of the witness were recorded, accused was arrested and thereafter in presence of Narayan Kushwaha (P.W. 9) and Babulal on the basis of discovery under Section 27 of the Evidence Act one lathi was seized from the bushes of the forest. Its memorandum Ex. P-15 was prepared and thereafter lathi was seized by Ex. P-10. Broken pieces of bangles and one nylon sleeper were also seized at the instance of the appellant. One Tabeej was also seized at the instance of the appellant, which was hidden by him under the stone and its seizure memo was also prepared. One axe was also discovered and recovered at the instance of the appellant from his house and its seizure memo Ex. P-13 was prepared. It is also alleged by the prosecution that some missing report was also lodged by appellant. Thereafter, it has come on record that the said report was lodged by father of the appellant. One Lota and sickle were also recovered at the instance of the appellant and seizure memo was also prepared. Some ornaments which the deceased was wearing were also seized and they were referred for chemical examination alongwith sleeper, axe and other articles. Chemical examination reports are Ex. P-26 and Ex. P-27. After completing the investigation charge-sheet was filed.
3. During trial appellant abjured his guilt. Prosecution examined as many as 15 witnesses; out of which 9 witnesses have not supported the prosecution case even then the Trial Court after assessing the evidence of hostile witnesses found that it is a case of circumstantial evidence. On the evidence of last seen as well as the evidence of extra-judicial confession made by the appellant before P.W. 12 Ramniwas Sharma during the cross- examination Trial Court found that it is the appellant, who has committed the offence and convicted him and sentence as aforesaid. Against which this appeal has been filed.
4. We have heard Shri Devendra Bhargava, learned Counsel for the appellant and Shri C.S. Dixit, learned Public Prosecutor for the respondent/State for the respondent and perused the evidence on record.
5. It is true that P.W. 1 Chatura, father of the appellant was declared hostile, as he has not supported the prosecution version but from his evidence it is clear that the deceased was the wife of the appellant. Though she was residing separately but before the day of "Gyaras" she had gone on the well and thereafter she did not return. She was searched but she was not found and he states that he has lodged the report that she took away Rs. 800/- and her deadbody was found in the forest after one and half months but the prosecution has not produced any such missing report on record. When the deadbody was discovered, it was identified by him on the basis of Paijania which she was wearing. He says that the said Paijania was purchased by him.
6. P.W. 2 Brijendrasingh is the witness of document Ex. P-1, which is Panchayatnama Lash and Ex. P-2 Panchnama, which was prepared for recovering the deadbody. He is also the witness of Ex. P-3 spot map and Ex. P-4 seizure memo of rope, sleeper and pieces of bangles. He was also declared hostile and in cross- examination he has stated that pieces of rope, sleeper and pieces of bangles were not seized in his presence. All the documents were prepared in the village and not at the place of recovery. The appellant was also present at the time of preparation of Panchnamas. At that time appellant had also stated that he is having suspicion that it is the body of his wife.
7. P.W. 3 Shivlal was also declared hostile and during cross-examination he has deposed that some pieces of bones were lying under the stone on hill. Those bones were collected by the police. Sleeper, rope and bangles were found at a distant place. His thumb impression was taken and he had put the thumb impression on the saying of Constable. P.W. 4 Pyarelal though was also declared hostile, but initially stated that after missing of deceased Saraswati he alongwith Chatura, Gambhira and Kammoda had gone to search her and after one and half months he came to know that one deadbody was lying on a hilly track. He had not gone on the spot and he had not seen any dispute between the husband and wife and in the cross-examination had clearly stated that he had not identified the deadbody as he had not gone on spot. His statement was taken twice; He has also stated that one son had born at the house of Kammoda and Saraswati and subsequently he died. P.W. 5 Gumiya was also declared hostile. He was cross-examined and he has stated that the relations between the appellant and his wife were cordial. In the cross-examination he admits that he had identified the deadbody and it was like of Saraswati. The identification was done on the basis of bones, clothes, bangles and bindiya. He has denied that the character of Saraswati was doubtful or her relations with her husband were not cordial. He has also admitted that compromise has taken place. On the day when she had gone to the field, Kammoda was present in the house and was busy in manufacturing utensils. Police had come in the village alongwith packet of bones. The clothes were into pieces in rotten shape and melted and it was not possible to identify them. Paijania which Saraswati was wearing being worn by other ladies in the village. Paijania and bangles were not shown by the police and it was told that they are in the packet.
8. P.W. 6 Ramakali is the Bhabhi of appellant. She has deposed that relations of the appellant and deceased were cordial. She was also declared hostile. In the cross-examination she has stated that appellant had told her on the same day that the deceased ran away with Rs. 750/- and after one and half months Sahariyas had informed about the deadbody of the lady lying in the forest. In the cross-examination she has stated that appellant Kammoda and deceased Saraswati both had gone on the field to work. Kammoda came back and whole day remained on shop but in the evening Saraswati did not come back and report was lodged next day. She has admitted that on the basis of clothes and ornaments she had identified the deadbody; it was of deceased Saraswati. The ornaments of Saraswati were similar to that of other village ladies, therefore, on her estimation they may be of Saraswati and her dead body was identified.
9. P.W. 7 Tibia has deposed that the appellant is the son of her husband's elder .brother. Relations between appellant and deceased were cordial. She was also declared hostile. During cross- examination she has denied that the deceased was having illicit relation with the other villagers. She has also denied that on that day she had gone with the appellant. It was intimated to her that deceased had taken away Rs. 750/- with one Lota and sickle and thereafter it was informed by Sahariyas that one deadbody is lying in the forest. Chatura and Kammoda had gone to see her. She has deposed that she had not seen clothes, Paijania, bindiya and she had not identified the deadbody. She has denied that Kammoda used to beat deceased Saraswati. She has admitted that there is compromise then why the appellant be sent to jail. On the day when deceased ran away, Kammoda was in his house and he had gone on the well to search her. They all were searching. She had not visited the spot.
10. P.W. 8 Lallu is the Chowkidar. He says that when he had informed the police that a deadbody is lying in the forest, it was not intimated by him that the body of lady is lying. He was also declared hostile. In the cross-examination he has admitted that Chatura had lodged missing report of the deceased. They had gone on the spot and all had identified the deadbody as of Saraswati. The appellant had also gone to see the deadbody alongwith the police. The bones were collected and kept in a bag. Kammoda was arrested after 4-5 days from the date on which the deadbody was seized. The deadbody was identified as of Saraswati on the basis of the statements of the village ladies after seeing Paijania, Pora and Saree. His statement was not recorded by the police.
11. P.W. 9 Narayan is the witness of spot map Ex. P-8, seizure memo Ex. P-2 by which the deadbody was discovered and arrest memo Ex. P-9. He has denied that any axe was seized in his presence and was declared hostile. Further in the cross- examination he has again admitted that axe was not seized in his presence but other articles were seized in his presence at the instance of the appellant. He has denied that the appellant has made any statement about the discovery of axe, rope and sleeper. He has only stated that sickle and lota are lying in his house which he will produce. He has denied that this appellant has made extra-judicial confession before him or has told him that he has committed some wrong work, he should be saved. Kammoda had not informed him that he has kept the deadbody under the stones. Appellant had not identified the deadbody in his presence as of his deceased wife neither he made any disclosure that how he committed the crime. Only it was identified that it was the deadbody of some lady but it was not identified that it is the deadbody of deceased Saraswati. Paijania, Pora and Lathi were recovered on the next day. The documents on which signatures were obtained were not read over.
12. P.W. 10 Mitthu was also declared hostile. In cross- examination he has denied that in his presence all the members of his family had identified the deadbody. He is the witness of Lash Panchayatnama Ex. P-20. He had not given any such statement to the police that he was saying, he should be saved. He gave statement on the basis of suspicion. P.W. 11 Barkat Ali, Constable, is the witness of Ex. P-21. He had seized one packet of the articles.
13. P.W. 12 Ramniwas Shanna has also not supported the prosecution. Kammoda was present at the time of recovery of deadbody. In the cross-examination, firstly he has stated that Kammoda had not come to his house and has not stated that he has committed mistake but he should save him. Further he has stated that before C.I. Kammoda has made extra-judicial confession that he has killed his wife. Further he has stated that Kammoda has made this statement before him as well as other persons that he has committed the murder of his wife and it was made before Narayan Kushwaha and Parmanand Master but P.W. 9 Narayan was also declared hostile and has also not supported this part that extra- judicial confession was made before him and prosecution has not examined Parmanand Master. Though it is not clear that when he made extra-judicial confession before this witness, exact words have also not been produced by this witness and in the cross- examination he has admitted that the police had taken the appellant on the same day when the deadbody was recovered and for two days he remained at police station and thereafter in presence of C.I. the appellant had admitted that it is the deadbody of his wife. From this very statement, it is clear that when the police had taken him to Police station and he remained there, there was no occasion for him to make any independent and voluntary confession before P.W. 12 Ramniwas Sharma. P.W. 12 does not say that this extra-judicial confession was made by the appellant on spot before 15-20 persons when they had gone to see the deadbody of the lady, therefore, it is clear that if the statement was made in presence of C.I. then the same is doubtful and not admissible in evidence.
14. The evidence of P.W. 13 Ganesh is not relevant. P.W. 14 Dr. K.P. Nag had performed post-mortem of the deadbody. As per his evidence he has not clearly specified that the death was homicidal in nature because he had seen only skeleton of the deadbody, from which it was difficult to know the cause of death. In the cross-examination he has admitted that though he had examined bones but he is not the expert of this branch. Even on the basis of the bones he can not say what was the age of the deceased. Because the Paijania and Bichhiya were available on the deadbody, therefore, it could be said that it was the body of a lady otherwise it was difficult even to say whether it was the body of male or female. He had prepared rough report at the spot but the same has not been produced. P.W. 15 R.V. Sharma had investigated the matter. Though he has stated that missing report was lodged, but the same has not been found proved.
15. From the aforesaid evidence, it is clear that there is no conclusive evidence on record about the last seen. Only P.W. 6 Ramakali has stated that the appellant and deceased had gone on the field to work but she further says in cross-examination that the appellant came back and thereafter he was working on his shop and in the same evening Saraswati did not come back to her house but the other witnesses P.W. 7 Tibia and P.W. 8 Pahlu have deposed that in the evening they had gone to search her in the field. Therefore, there is no consistency in the evidence of hostile witnesses. All have stated that on the day the appellant was working at his house, therefore, there is no reliable and trustworthy evidence of last seen on record.
16. So far as the evidence of extra-judicial confession is concerned, only P.W. 12 Ramniwas Sharma has stated in the cross- examination about the same but the same an not be treated as admissible and conclusive because the appellant was taken to the police station immediately after discovery of the dead body and for two days he remained in the police custody and Ramniwas Sharma has not stated that at what time and at what place appellant made confession to him. If any confession is made before C.I. or before the police, the same is not admissible in evidence. The evidence of extra-judicial confession can only be relied when it is reliable, trustworthy and beyond reproach and it has been considered as a weak type of evidence. It has to be considered that it was voluntary and before an independent person.
17. In the case of State of Punjab v. Bhajan Singh and Ors. (AIR 1975 SC 258), it has been held that the evidence of extra-judicial confession in the very nature of things is a weak piece of evidence. If it lacked plausibility and did not inspire confidence then the conviction can not be based. The onus in a criminal trial is upon the prosecution to prove the guilt of the accused. If there be any gap or lacuna in the prosecution evidence, the accused and not the prosecution would be entitled to get the benefit of that.
18. In the case of Lakhanpal v. State of Madhya Pradesh (AIR 1979 SC 1620), the Supreme Court has held that where in prosecution for offence of murder, a prosecution witness deposed that he made the disclosure about the extra-judicial confession of the accused (regarding the mistake committed by him in killing his brother) for the first time in the police station and that he never told about this to anyone else though he met number of persons on the date of occurrence, under the circumstances it was unsafe to rely on the evidence of extra-judicial confession more so when no motive was either alleged or proved against the accused in killing his real brother.
19. In the case of Heramba Brahma v. State of Assam (AIR 1982 SC 1595), the Supreme Court has considered that how the evidence of extra-judicial confession should be accepted. When it is claimed that accused persons made confession to an undertrial in jail awaiting trial for dacoity and the High Court accepted the evidence of extra-judicial confession without examining the credentials of the witness; without ascertaining the words used; without referring to the decision of Supreme Court wherein it is succinctly stated that extra-judicial confession to afford a piece of reliable evidence must pass the test of reproduction of exact words, the reason or motive for confession and person selected in whom confidence is reposed and in such circumstances it was held that the evidence of extra-judicial confession was unworthy of belief and it can not be taken to corroborate any other evidence.
20. In the case of Shrishail Nageshi Pare v. State of Maharashtra (AIR 1985 SC 866), it is held that it is so well established that a retracted confession by an accused may form the basis of conviction of that accused if it receives some general corroboration from other independent sources. It can not, however, be the basis for convicting co-accused though it may be taken into consideration against co-accused also.
21. In the case of Chhitar v. State of Rajasthan (AIR 1994 SC 214), it is held that the extra-judicial confession should be taken as a whole and should not suffer from any infirmity even if it is to be acted upon. It should not be belated and should not be inconsistent with the medical evidence.
22. In the case of Balwinder Singh v. State of Punjab (AIR 1996 SC 607), again it has been held that an extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciations with 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 Courts generally look for independent reliable corroboration before placing any reliance upon an extra-judicial confession.
23. If the extra-judicial confession is made by the appellant before P.W. 12 Ramniwas Sharma, the evidence of Ramniwas Sharma is to be tested on the touch-stone of the aforesaid principle. We have to see that what was the occasion to make an extra-judicial confession by the appellant to P.W. 12. Admittedly P.W. 12 is a shopkeeper at Village Gudar. They are not haying any relation. He was only knowing the appellant and was not knowing the name of his wife nor the character of his wife, he was not knowing the incident and he heard the incident only through the Chowkidar. In the examination-in-chief he has not stated anything about the extra-judicial confession. He has also not supported the prosecution version. He was declared hostile and in the cross-examination he has denied that the appellant had come to his house and requested to save him. Further, in cross-examination he has stated that the extra-judicial confession was made before C.I. and at that time P.W. 9 Narayan and Parmanand were also present but P.W. 9 Narayan has not stated anything in his evidence about confession. The prosecution has not examined another person Parmanand before whom it is alleged to have been made. Such confession requires close scrutiny and if the exact words substantially stated by accused were not produced and if the prosecution has not proved the words, manner, presence and the circumstance under which the confession was made, the same can not be treated as an extra-judicial confession and no reliance can be placed thereon. This evidence is also not corroborated by any other evidence. None of the prosecution witnesses have stated about it. There is no evidence that why during the period of last one and half months he did not make any such confession before any other person. Therefore, it can be held that such a tainted confession made before a hostile witness, who was also stranger, in presence of police officer can not be treated as sufficient and trustworthy and if the whole version of P.W. 12 Ramniwas Sharma is accepted then his evidence will also not come in the purview of extra-judicial confession. In fact, according to law whole version is required to be considered not the part of it. Thus, there can be no evidence of confession in this case on the basis of the same. In criminal cases, the prosecution has to prove the allegations and charges by producing independent, unblemished and reliable evidence, without which the charges and allegations can not be treated as proved.
24. From the medical evidence, it has also not been found proved that the death of the deceased was homicidal in nature. On the question of identification of deadbody, there is no consistent evidence available on record. Even the appellant has not identified the deadbody of the deceased. The other witnesses and family members have also deposed that only reason of identifying the deadbody was Paijania and Pora but they all have consistently admitted that such type of Paijania and Pora ar available in the market. They are common in the village and being worn by all the ladies in the village commonly. P.W. 9 Narayan has stated that his signatures were obtained on papers without making him known that they are being obtained either on seizure memos or on discovery memos. He has categorically stated that no such statement was made by the appellant that he will get them discovered. The recovery of an axe is irrelevant in this case and the same has also not been found proved. Lathi is also a very common object available virtually in every house of villagers. P.W. 9 Narayan was also declared hostile but the Public Prosecutor has not cross-examined him on the point of extra-judicial confession. P.W. 12 Ramniwas Sharma was also not confronted from his case diary statement, therefore, from the evidence on record it is also clear that the identification of the deadbody is also doubtful.
25. Thus, considering the totality of the facts and circumstances of the case and the evidence on record, the findings recorded by the Trial Court based on two circumstantial evidence, one is last seen and another is extra-judicial confession, are perverse and it appears that the Trial Court has not appreciated the evidence of the hostile witnesses and has also not recorded the findings properly and, therefore, the conviction of the appellant on such appreciation can not be upheld.
26. We find that prosecution has failed to prove the chain of circumstantial evidence. There is no conclusive evidence on record that it is the appellant alone, who is responsible for committing murder of his wife. The suspicion howsoever strong can not take the place of legal evidence. Considering the totality of the evidence we allow this appeal, set aside the conviction and sentence and acquit the respondent from the charges. Appellant is on bail, his bail bonds be discharged.