Punjab-Haryana High Court
Gurwinder Singh @ Ginda vs State Of Punjab on 19 January, 2009
Author: Daya Chaudhary
Bench: Satish Kumar Mittal, Daya Chaudhary
Crl. Appeal No. 230-DB of 2004 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Appeal No. 230-DB of 2004
DATE OF DECISION: 19.1.2009
Gurwinder Singh @ Ginda ..........Appellant
Versus
State of Punjab ..........Respondent
CORAM:- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present:- Mr. V.M. Gupta, Advocate
for the appellant.
Mr. Rajesh Bhardwaj, Additional Advocate
General, Punjab for the respondent.
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DAYA CHAUDHARY, J.
The present appeal arises out of judgment and order dated 18.11.2003 passed by Sessions Judge, Fatehgarh Sahib in sessions case No. 61T/3.9.2001 vide which the appellant has been convicted and sentenced to undergo life imprisonment and to pay a fine of Rs.5000/- and in default of payment of fine to further undergo RI for one year under Section 302 IPC; to undergo RI for 5 years and to pay a fine of Rs.1000/- and in default of payment of fine to further undergo RI for six months under Section 366-A IPC and to undergo RI for seven years and to pay a fine of Rs.1000/- and in default of payment of fine to undergo RI for six months under Section 376 IPC. All the sentences awarded to the accused- appellant were ordered to run concurrently.
Briefly, the facts of the case as put up by the prosecution are that FIR Ex. PF under Sections 376/302 IPC was lodged on 20.6.2001 after Crl. Appeal No. 230-DB of 2004 (2) the recovery of dead body of Chhina by her father-Mam Hussain. In his statement, he has stated that he had four sons and two daughters. Deceased-Chhina was his youngest daughter. On 19.6.2001, he along with his family members was present in his house. At about 9.45 p.m. electric supply was disrupted and when the supply was not restored for about one hour then they all went in the court yard. Then he found that Chhina was not there. Accordingly, they searched Chhina during the whole night of 19.6.2001. On 20.6.2001 at about 10.00 a.m. Kasin S/o Musa Ali and Barkat Ali, S/o Ali Hussain told to the complainant that on the previous night at about 11.00 p.m., they in the light of their motorcycle, noticed that some person resembling Gurwinder Singh alias Ginda son of Joginder Singh was taking away Chhina on the cycle. Chhina was sitting in front of his cycle and they were going near the bridge of SYL canal in village Badwali. On the aforesaid information, the complainant tried to trace his daughter and ultimately dead body of his daughter was found in the fields of Baldev Singh. There was bleeding from her nostrils, mouth and her private parts. Her salwar was lying removed and one corner of shirt was found torned. It was tied around her neck and there were abrasions on her right cheek, right hand and left buttock. After seeing the dead body, the complainant was of the firm view that his daughter was induced by the accused-Gurwinder Singh by taking advantage of her minority and committed rape and then strangulated her which led to her death at the spot.
On the basis of above statement of the complainant, FIR No. 50 dated 20.6.2001 was registered and copy of FIR was sent to Ilaqa Magistrate. Investigating Officer SI Gurdial Singh reached village Lachhmangarh and inspected the dead body which was lying in the sugarcane fields of Baldev Singh. Photographs of the dead body were taken by Sukhdip Singh. Inquest proceedings were completed and Crl. Appeal No. 230-DB of 2004 (3) statements of Faqardin and Farjandali were recorded. A lady watch sonic with broken chain, one Hero mark cycle and one wallet containing thirteen rupees were also found near the dead body which were taken into possession. Dead body was sent to Civil Hospital, Bassi Pathanan for postmortem examination. Dr. D.S. Bhullar conducted the postmortem examination of the deceased and opined that the cause of death was on account of Asphyxia resulting from strangulation. Vaginal swabs were taken and were sent for the chemical examination. As per report of the Chemical Examiner, semen was found in the vaginal swabs. Accused was arrested on 23.6.2001. Medico Legal Examination of the accused was got conducted and some injuries were found on his person, which according to prosecution were got suffered by him during the scuffle with the deceased in the sugarcane field. On 30.6.2001, SI Gurdial Singh moved an application before the Ilaqa Magistrate for taking the hair of the accused for its comparison with the hair which were entangled in the chain of wrist watch. Statement of accused was recorded by the then CJM but the accused refused to part with his hair. After completion of the necessary investigation, challan was put up for trial.
The accused was supplied various documents relied upon by the prosecution and a case under Sections 366-A, 376 and 302 IPC was made out against the accused-appellant and accordingly the accused- appellant was chargesheeted to which he pleaded not guilty and claimed trial.
In order to prove its case, prosecution examined as many as 17 witnesses.
PW-1 Dr. D.S. Bhullar, Autopsy surgeon conducted the postmortem examination on the dead body of Chhina on 21.6.2001 and observed as under:-
Finger nails and nips were deeply cyanosed. Eye balls were Crl. Appeal No. 230-DB of 2004 (4) prominent and were showing sub conjunctival petechial hemorrhages. Clotted blood was present on mouth, nose and right ear. Ligature was present and completely encircled the neck horizontally below thyroid cartilage.
1. Ligature mark : After removing the ligature, ligature mark 1.5 to 2 cms was present underneath it with abrasions around it.
On dissection underneath subcutaneous issue was showing echymosis,; muscle injuries and injuries to larynx and trachea ring underneath.
2. Abrasion 3 x 2 cm on right cheek.
3. Contusion 3 x 3 cm on right side of neck.
4. Abrasion 3 x 2 cm on back of right hand.
5. Abrasion 5 x 4-5 cm on left buttock.
Pleura and lungs showed early decomposition changes. Large Intestine were showing early decomposition changes and contained faceal matter. Abdominal viscera were congested. Organs of generation showed early decomposition externally and internally. Hymen was intact and admitted one finger with difficulty. Vulva and vagina showed no signs of sexual intercourse. Swabs from vulva and vagina were kept in a test tube for chemical analysis.
All the injuries detailed above in the opinion of the Doctor were anti mortem in nature and cause of death was due to Ashphyxia by strangulation. The external and corresponding internal injuries caused to the neck by strangulation were found to be sufficient to cause the death of the victim in the ordinary course of nature. The time of death as given out by the Doctor was also corresponding to the time of occurrence. Vaginal swabs which were sent to the Chemical Examiner found the presence of semen.
Crl. Appeal No. 230-DB of 2004 (5) PW-2 Mam Hussain, father of the deceased, who lodged the FIR after the recovery of dead body of his daughter from the sugarcane fields of Baldev Singh, reiterated the same facts as stated in the FIR.
PW-3 Barkat Ali and PW-4 Kasim are the witnesses of the last scene who stated that while going on SYL canal they saw the accused-appellant and the deceased going on cycle in the area of village Badwali. Barkat Ali was driving motor cycle and Kasim was sitting on the back side of the motorcycle. Both PW-3 and PW-4 supported the version of the prosecution to the extent that the person on the cycle was resembled with the accused. However, both these witnesses were declared hostile by public prosecutor in order to prove the identity of the accused and in cross- examination both these witnesses concealed the identity of the accused and simply stated that they were not sure about the identity of the accused with certainty.
PW-5 Constable Sadhu Singh is an official witness and has tendered into evidence his affidavit Ex.P5/A. PW-6 Yaqoob is a witness to the extra judicial confession made by the accused-appellant before him after the occurrence has supported the prosecution version in all aspects.
PW-7 Constable Surinder Singh is also a formal official witness and has tendered into evidence his affidavit Ex.PW7/A. PW-8 Farjand Ali is the brother of the deceased, who identified the dead body of the deceased Chhina at the time of inquest proceedings and postmortem examination.
PW-9 Constable Raj Kumar has also tendered into evidence his affidavit Ex.PW9/A to provide link the chain of prosecution evidence.
PW-10 SI Gurdial Singh is the Investigating Officer, who recorded the formal FIR Ex.PF and proved the various formalities during the course of investigation.
Crl. Appeal No. 230-DB of 2004 (6) PW-11 Sukhdeep Singh is a photographer, who had taken the photographs of the deceased and handed over the same to Investigating Officer.
PW-12 Gurmel Singh has tendered into evidence his affidavit Ex.PW12/A. PW-13 Sarabjit Singh, Patwari prepared scaled site plan Ex PW13/A at the instance of complainant.
PW-14 SI Kuldeep Singh, Finger Print Expert submitted his report Ex.PW14/A whereby he has disclosed that the prints on the wrist watch with hair in the chain either was smudged or fragmentary bearing no comparable data.
PW-15 Ajaib Singh is a witness to certain recoveries effected by the Investigating Officer from near the dead body as well as later on during investigation.
PW-16 Dr. S.K. Khullar conducted the medico legal examination of the accused Gurwinder Singh on 24.6.2001 and observed as under:
"Accused was conscious well oriented to time and place Multiple linear abrasions; may be because of thorny bushes present on the whole body, particularly more on the abdomen, chest and back. On physical examination, scalp, beard, mustaches, auxiliary and public hair are present. General behaviour of the accused was good, mental condition was healthy, clothing had been changed.
There was no injury on genitals.
Opinion:- From the foregoing examination, I found nothing to suggest that the said accused was incapable of performing sexual intercourse."
PW-17 Vijay Singh, Additional Sessions Judge, Ludhiana stated that on 30.6.2001, he was posted as CJM, Fatehgarh Sahib when Crl. Appeal No. 230-DB of 2004 (7) an application was moved by the police authorities for taking hair of the accused-appellant Gurwinder Singh for comparison with hair which were entangled in the chain of the wrist watch. The accused-appellant refused to part with his hair and in this regard his statement was recorded and proved the same as Ex.P10/J. After closure of the prosecution evidence, statement of accused-appellant under Section 313 Cr.P.C. was recorded. In his statement, he denied the entire prosecution evidence stating that he was falsely implicated in the case, and false recoveries were planted on him by the Investigating Officer in order to convert untraced case into traced one. He further stated that he was arrested by police on 20.6.2001 on the basis of suspicion. In his defence accused-appellant examined Bhagwan Singh, Incharge Telegraph Office as DW-1 to prove three telegrams Ex. D4 to D6 and their receipt Ex. D1 to D3.
After hearing the arguments of learned counsel for the parties and by relying upon the aforesaid prosecution witnesses, the trial Court convicted and sentence the accused under Sections 366-A, 376 and 302 IPC, as has been mentioned in the first paragraph of this judgment.
Mr. V.M. Gupta, learned counsel for the appellant has argued that it is a case of false implication as the prosecution has relied upon the statement of PW-3 Barkat Ali and PW-4 Kasim but later on they were declared hostile. As per their statement, they saw the deceased on a cycle with a person who resembled to accused-Gurwinder Singh. Both these witnesses did not identify the accused and showed their ignorance to the identity of the accused present in the Court. Mr. Gupta further argued that it was a case of circumstantial evidence and the chain of prosecution story is not complete.
Mr. Gupta also submitted that the recoveries of the items near the dead body have been planted upon the accused as in the inquest Crl. Appeal No. 230-DB of 2004 (8) report in column No.23 there is no mention about the presence of wrist watch as well as the wallet containing identity card. Even in the cross- examination of PW-2 Mam Hussain, he has stated that his daughter was not having any wrist watch, PW-14 SI Kuldip Singh, Finger Print Expert has also stated that wrist watch was tied at the hand of the deceased and he removed it. As per the statement of Investigating Officer, Wallet was lying 5-7 karmas from the dead body while PW-14 recovery witness ASI Ajaib Singh stated that it was lying at the distance of 2 karmas.
Mr. Gupta further argued that as per the report of postmortem examination, the death was due to asphyxia by strangulation and as per opinion given by the Doctor hymen was found intact and there was no sign of sexual intercourse.
The learned counsel for the accused-appellant further submitted that the accused-appellant has been convicted by the trial Court on the basis of extra judicial confession made by the accused-appellant to one Yaqoob whereas there was no occasion for the accused-appellant to make such confession on 22.6.2001 as he was already in legal custody of the police. Moreover, the accused was having no connection or relationship with this witness. He was neither the Sarpanch nor the Lambardar of the village and as such the alleged extra judicial confession made by the accused-appellant before Yaqoob has no legal sanctity in the eyes of law.
Learned counsel for the appellant argues that the accused- appellant has falsely been implicated in this case with a motive as the relationship between the accused and complainant were not cordial. A Panchayat was also convened to discuss the grievance of the accused regarding going of buffalos in his fields and in the Panchayat complainant was insulted by accused. Therefore, the complainant was having that grudge in his mind against him.
Crl. Appeal No. 230-DB of 2004 (9) Mr. Rajesh Bhardwaj, learned Additional Advocate General, Punjab argued that the prosecution has fully proved its case beyond any reasonable doubt and the circumstances proved are conclusive in nature. Mr. Bhardwaj further argued that although the last scene witnesses have turned hostile subsequently but their initial statement cannot be ignored as both the witnesses were consistent in their statement and there was no contradiction. He submitted that the chain of story is complete and no link is missing. Mr. Bhardwaj also argued that even as per the statement of PW-1 Dr. D.S. Bhullar, the possibility of sexual intercourse before the death of victim could not be ruled out.
We have heard the arguments of counsel for the parties and carefully perused the evidence available on record.
The argument of learned counsel for the accused-appellant that the trial Court has wrongly relied upon the evidence of Barkat Ali PW-3 and Kasim PW-4 does not carry any weight. We have gone through the statements of both the witnesses. Both these witnesses have categorically stated that while going on motor cycle they saw the deceased Chhina on a bicycle with a person having resemblance with Gurwinder Singh and when on the next day they came to know that deceased was missing, they narrated the incident of last scene of deceased Chhina and Gurwinder Singh to the father of the deceased. Both the witnesses consistently stated that they are from the brotherhood of the complainant and engaged in the same business of grazing cattle and both the parties were known to them and it cannot be a question of mistaken identity as the deceased and accused are also of the same village. Initially they did not think it proper to stop the accused as well as the deceased as they did not doubt the accused but when they found that the deceased was missing from her house and her parents were searching for her, they immediately went to the complainant and disclosed the facts of seeing the accused and Crl. Appeal No. 230-DB of 2004 (10) deceased which led to the recovery of dead body of the deceased. These witnesses are quite consistent about the identity of the accused and their statement cannot be disbelieved only on the ground that subsequently they did not support the case of the prosecution. The evidence of last scene as set up by the prosecution has been fully proved against the accused.
The argument of the learned counsel for the appellant that certain recoveries were planted by the prosecution against the accused- appellant also does not carry any weight. The case of the prosecution cannot be thrown only on the ground that in column No.23 of inquest report there was no mention of any lady watch and wallet. Investigating Officer in site plan Ex.PW10/B has also clearly mentioned at point No.4 and 5 of his notes that the lady watch and wallet of the accused were lying near the dead body. The site plan was prepared by the Investigating Officer at the same time on the same day, when the inquest report was prepared. Mere omission of these two articles in the inquest report does not make the prosecution case weak in any manner. Further the discrepancies pointed out with regard to watch and the distance of wallet by the PWs, in our opinion, are of minor nature and such like minor discrepancies are likely to occur in the statement of truthful witnesses, and these discrepancies even otherwise has no bearing on the facts of the present case.
The case of the prosecution has been fully supported by medical evidence. There is no dispute about the death of Chhina as the dead body of the deceased was recovered from sugarcane fields of Baldev Singh and bleeding from the nostril mouth and private parts of the deceased was there. The neck of the deceased was strangulated with a piece of cloth which was torned from the shirt of the deceased and salwar was lying removed. As per postmortem examination conducted by Dr. D.S. Bhullar, the cause of death was due to asphyxia by strangulation. The external and corresponding internal injuries caused to the neck by Crl. Appeal No. 230-DB of 2004 (11) strangulation were found to be sufficient in the ordinary course of nature to cause the death of the victim. Doctor has specifically given his opinion that possibility of forcible sexual assault having been made on the deceased just before her death cannot be ruled out. Vaginal swabs were taken and were kept in a test tube for chemical analysis and ultimately it was reported that these contain the semen vide report Ex.PF. Similarly after the arrest of the accused, the medico legal examination of the deceased was got conducted from Dr. S.K. Khullar on 24.6.2001 at about 10.30 a.m. who found multiple linear abrasions because of thorny bushes present on the whole body and particularly more on the abdomen, chest and back and the duration of these injuries was within seven days. This fact also correspond to or about the time of occurrence. This evidence of both the doctors clearly suggest that prior to strangulation, there was scuffle between the victim and the accused and because of that reason injuries were also found on the person of victim as well as of deceased. As such the medical evidence is also fully consistent with the ocular version put forth by the prosecution.
The argument of the learned counsel for the appellant that the relations between accused and complainant were not cordial is also not convincing as the same is an afterthought defence. There is nothing on record to show that he has made any complaint either to police or to anybody in this regard. Even the accused has failed to explain the case of false implication. He has also failed to disclose as to why the injuries were found on the person at the time of medical examination by the doctor. He was arrested by the police on 23.6.2001 and was medico legally examined on the next day. SI Gurdial Singh moved an application before CJM, Fatehgarh Sahib for taking the hair of the accused for its comparison with the hair found entangled in the broken chain of the watch of the deceased wherein accused refused to part with the hair and this act and conduct of Crl. Appeal No. 230-DB of 2004 (12) the accused-appellant proved his conduct doubtful.
The further argument of learned counsel for the applicant- appellant that extra judicial confession made by the accused-appellant before one Yaqoob has been introduced just to make the case more stronger by the prosecution, is also not of much weight. As the accused- appellant had committed a very heinous crime and police was after him and he was absconding from the police, he might have thought to confess his guilt before a person just to compromise the mater as Yaqoob was also from the same brotherhood of the complainant.
It is well settled law that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan, (AIR 1977 SC 1063); Eradu and Ors. v. State of Hyderabad, (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka, 1983(1) RCR(Criminal) 292 : (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors., (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab, 1987(1) RCR(Criminal) 517 : (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab, (AIR 1954 SC
621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
In C. Chenga Reddy and Ors. v. State of A.P., 1996(3) RCR (Criminal) 793 : (1996)10 SCC 193., the Supreme Court has observed as Crl. Appeal No. 230-DB of 2004 (13) under:-
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".
In Padala Veera Reddy v. State of A.P. and Ors., 1990(2) RCR(Criminal) 26 : (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests :
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
In State of U.P. v. Ashok Kumar Srivastava, 1992(3) RCR (Criminal) 63 : (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on Crl. Appeal No. 230-DB of 2004 (14) is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
In Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus :
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea.
Crl. Appeal No. 230-DB of 2004 (15) The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are :
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned `must' or `should' and not `may be' established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
These aspects were highlighted in State of Rajasthan v. Raja Ram, 2003(4) RCR(Criminal) 238 : 2004(1) Apex Criminal 471 : (2003(8) SCC 180), State of Haryana v. Jagbir Singh and Anr., 2003(4) RCR (Criminal) 554 : 2004(1) Apex Criminal 546 : (2003(11) SCC 261) and Kusuma Ankama Rao v State of A.P. (Criminal Appeal No. 185/2005 disposed of on 7.7.2008).
So far as the last seen evidence is concerned it is necessary to refer two decisions of Hon'ble the Supreme court. In State of U.P. v. Satish, 2005(1) Apex Criminal 437 : [2005(3) SCC 114] it was noted as follows :
"22. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased Crl. Appeal No. 230-DB of 2004 (16) were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2."
In Ramreddy Rajeshkhanna Reddy v. State of A.P., 2006(2) RCR(Criminal) 462 : 2006(1) Apex Criminal 675 : [2006(10) SCC 172] it was noted as follows :
"27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration".
A similar view was also taken in Jaswant Gir v. State of Punjab, 2006(2) RCR(Criminal) 202 : 2006(1) Apex Criminal 700 : [2005 (12) SCC 438] and Kusuma Ankama Rao's case (supra).
Confessions may be divided into two classes i.e. judicial and extra- judicial. Judicial confessions are those which are made before a Magistrate or a court in the course of judicial proceedings. Extra-judicial confessions are those which are made by the party elsewhere than before Crl. Appeal No. 230-DB of 2004 (17) a Magistrate or court. Extra-judicial confessions are generally those that are made by a party to or before a private individual which includes even a judicial officer in his private capacity. It also includes a Magistrate who is not especially empowered to record confessions under Section 164 of the Code of Criminal Procedure, 1973 (for short the `Code') or a Magistrate so empowered but receiving the confession at a stage when Section 164 of the Code does not apply. As to extra-judicial confessions, two questions arise : (i) were they made voluntarily and (ii) are they true ? As the section enacts, a confession made by an accused person is irrelevant in criminal proceedings, if the making of the confession appears to the court to have been caused by any inducement, threat or promise, (1) having reference to the charge against the accused person, (2) proceeding from a person in authority, and (3) sufficient, in the opinion of the court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. It follows that a confession would be voluntary if it is made by the accused in a fit state of mind, and if it is not caused by any inducement, threat or promise which has reference to the charge against him, proceeding from a person in authority. It would not be involuntary, if the inducement, (a) does not have reference to the charge against the accused person; or (b) it does not proceed from a person in authority; or (c) it is not sufficient, in the opinion of the court to give the accused person grounds which would appear to him reasonable for supposing that, by making it, he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. Whether or not the confession was voluntary would depend upon the facts and circumstances of each case, judged in the light of Section 24 of the Indian Evidence Act, 1872 (in short `Evidence Act'). The law is clear that a confession cannot be used against an accused person Crl. Appeal No. 230-DB of 2004 (18) unless the court is satisfied that it was voluntary and at that stage the question whether it is true or false does not arise. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the court may refuse to act upon the confession, even if it is admissible in evidence. One important question, in regard to which the court has to be satisfied with is, whether when the accused made the confession, he was a free man or his movements were controlled by the police either by themselves or through some other agency employed by them for the purpose of securing such a confession. The question whether a confession is voluntary or not is always a question of fact. All the factors and all the circumstances of the case, including the important factors of the time given for reflection, scope of the accused getting a feeling of threat, inducement or promise, must be considered before deciding whether the court is satisfied that in its opinion the impression caused by the inducement, threat or promise, if any, has been fully removed. A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the highest sense of guilt. (See R. v. Warickshall) It is not to be conceived that a man would be induced to make a free and voluntary confession of guilt, so contrary to the feelings and principles of human nature, if the facts confessed were not true. Deliberate and voluntary confessions of guilt, if clearly proved, are among the most effectual proofs in law. An involuntary confession is one which is not the result of the free will of the maker of it. So where the statement is made as a result of harassment and continuous interrogation for several hours after the person is treated as an offender and accused, such statement must be regarded as involuntary. The inducement may take the form of a promise or of a threat, and often the inducement involves both promise and threat, a promise of forgiveness if disclosure is made and threat of prosecution if it is not. (See Woodroffe's Evidence, 9th Edn., p.
Crl. Appeal No. 230-DB of 2004 (19)
284.) A promise is always attached to the confession alternative while a threat is always attached to the silence alternative; thus, in one case the prisoner is measuring the net advantage of the promise, minus the general undesirability of a false confession, as against the present unsatisfactory situation; while in the other case he is measuring the net advantages of the present satisfactory situation, minus the general undesirability of the confession against the threatened harm. It must be borne in mind that every inducement, threat or promise does not vitiate a confession. Since the object of the rule is to exclude only those confessions which are testimonially untrustworthy, the inducement, threat or promise must be such as is calculated to lead to an untrue confession. On the aforesaid analysis the court is to determine the absence or presence of an inducement, promise etc. or its sufficiency and how or in what measure it worked on the mind of the accused. If the inducement, promise or threat is sufficient in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil, it is enough to exclude the confession. The words "appear to him" in the last part of the section refer to the mentality of the accused.
Hon'ble the Apex Court in Chattar Singh and another Vs. State of Haryana 2008 (4) RCR (Criminal) 133 has held as under:-
"An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The 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 value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial Crl. Appeal No. 230-DB of 2004 (20) confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility.
So far as the extra judicial confession of A-2 before PWs 5 and 6 is concerned that actually is not of much relevance in view of Section 30 of Evidence Act. The stress in the said provision is on the joint trial for the same offence. In the instant case A-2 was not tried for Section 302 IPC. Therefore, his confession if any is of no consequence. But the extra judicial confession before PW-10 which has been relied upon by both the trial Court and the High Court cannot be lost sight of".
Hon'ble the Apex Court in Bantu Vs. State of U.P. 2008 (3) RCR (Criminal) has held as under:-
"Before analyzing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be Crl. Appeal No. 230-DB of 2004 (21) seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed."
So far as the last seen aspect is concerned it is necessary to take note of two decisions of this court. In State of U.P. v. Satish, 2005(1) Apex Criminal 437 : [2005(3) SCC 114] it was noted as follows :
"22. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2."
Crl. Appeal No. 230-DB of 2004 (22) In Joseph and Poulo v. State of Kerala, 2000(2) RCR (Criminal) 738 : [2000(5) SCC 197] it was, inter alia, held as follows :
"The formidable incriminating circumstances against the appellant, as far as we could see, are that the deceased was taken away from the convent by the appellant under a false pretext and she was last seen alive only in his company and that it is on the information furnished by the appellant in the course of investigation that jewels of the deceased which were sold to PW 11 by the appellant, were seized."
"The incriminating circumstances enumerated above unmistakably and inevitably lead to the guilt of the appellant and nothing has been highlighted or brought on record to make the facts proved or the circumstances established to be in any manner in consonance with the innocence at any rate of the appellant. During the time of questioning under Section 313 Cr.P.C. the appellant instead of making at least an attempt to explain or clarity the incriminating circumstances inculpating him, and connecting him with the crime by his adamant attitude of total denial of everything when those circumstances were brought to his notice by the Court not only lost the opportunity but stood self-condemned. Such incriminating links of facts could, if at all, have been only explained by the appellant, and by nobody else, they being personally and exclusively within his knowledge. Of late, courts have, from the falsity of the defence plea and false answers given to court, when questioned, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed. (See : State of Maharashtra v.
Crl. Appeal No. 230-DB of 2004 (23) Suresh). That missing link to connect the accused appellant, we find in this case provided by the blunt and outright denial of every one and all that incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts proved, connect the accused with the death and the cause of the death of Gracy and for robbing her of her jewellery worn by her - MOs 1 to 3, under Section 392. The deceased meekly went with the accused from the Convent on account of the misrepresentation made that her mother was seriously ill and hospitalised apparently reposing faith and confidence in him in view of his close relationship - being the husband of her own sister, but the appellant seems to have not only betrayed the confidence reposed in him but also took advantage of the loneliness of the helpless woman. The quantum of punishment imposed is commensurate with the gravity of the charges held proved and calls for no interference in our hands, despite the fact that we are not agreeing with the High Court in respect of the findings relating to the charge under Section 376."
The present case is also based on circumstantial evidence and the story of prosecution has been fully proved from the statement of all prosecution witnesses. The chain of circumstances has been fully proved by the prosecution on the basis of evidence of last scene, recovery of certain items, medical evidence, extra judicial confession and no link is missing. The circumstantial evidence along with last scene evidence coupled with consistency in the statement of prosecution witnesses has fully proved the prosecution case. The chain of evidence has led to the conclusion that in all probabilities the act of committing murder has been done by the accused-appellant only.
Crl. Appeal No. 230-DB of 2004 (24) In view of the above, we do not find that there is any legal infirmity for interference in judgment and order of trial Court and the present appeal being devoid of any merit is hereby dismissed.
(DAYA CHAUDHARY)
JUDGE
January 19, 2009 (SATISH KUMAR MITTAL)
pooja JUDGE