M.C. Garg, J.@mdashThis judgment shall dispose of the aforementioned criminal appeal filed by Shri Hemraj assailing the judgment dated 24.12.2005, passed by learned Additional Sessions Judge, Kannod in S.T. No. 170/2005 by which the appellant has been convicted for offence u/s 302 of IPC and sentenced to undergo R.I. for life besides payment of fine of Rs. 15,000/- and in default of payment of fine to further undergo additional R.I. for two years. As per the case of the prosecution, deceased Ranjeet who is the father of the complainant had illicit relationship with one Meerabai, wife of his elder brother. In view of the aforesaid, there used to be hot talks between the deceased Ranjeet and Hemraj, elder brother of the complainant, as Hemraj used to question the illicit relationship between the father Ranjeet and Meerabai. On 20.04.2005, when Hemraj alongwith his nephew Devkaran was going out for duty in jungle alongwith axe, the deceased asked Hemraj to advice his wife not to quarrel with Meerabai. On that Hemraj gave a blow with axe on the parietal region of Ranjeet, because of which Ranjeet fell down. Thereafter, Hemraj again caused a blow with axe on both legs of the deceased, cutting both the legs from the body and blood started oozing out. This incident took place in the presence of Dinesh and Devkaran who were also present in the house itself. When both of them tried to intervene, Hemraj even proceeded towards them with the axe threatening them. At this both of them left from the spot. Thereafter, Devkaran informed the village Chowkidar and Patel Padamsingh. These persons came to the place of incident and enquired from Hemraj why he had caused injuries upon his father. At this, Hemraj told that . Dinesh then took Ranjeet for treatment to the hospital. This attempt of Dinesh was also objected to by Hemraj. Thereafter, Devkaran went to inform Sarpanch Vikram Singh. Vikram Singh intimated telephonically to the police station by that time, Ranjeet expired.
2. It is also the case of the prosecution that Hemraj at that time also stated as under:-
3. On receipt of telephonic information, Head Constable of Police Station Khategaon reached village Nandkheda. On the basis of the information given by Dinesh he prepared Dehati Nalishi Ex. P-4. On that basis, he directed registration of a case u/s 302 of IPC against Hemraj on the basis of which FIR bearing No. 168/2005, Ex. P-10 was recorded by Shri A.P. Bharadwaj, the then A.S.I. Thereafter, S.H.O. Baldeosingh reached on the spot. He examined the witnesses, prepared Panchnama of the dead body Ex. P-2, sent the dead body of Ranjeet for post mortem which was conducted by Dr. Shailendra Parihar on 21.07.2005 at 20.30 hours vide Ex. P-12. After completing the investigation, challan was filed against Hemraj. After his arrest, on his disclosure, axe was discovered. Disclosure memo is Ex. P-5 and Recovery Memo is Ex. P-6. The axe was sent for examination for FSL vide letter dated 06.05.2005 Ex. P-11.
4. Thereafter, challan was filed before A.C.J.M., Khategoan, who then committed the case to the Sessions. Before the Sessions Court, the appellant denied the allegations made against him and faced trial. In his statement u/s 313 Cr.P.C., he has submitted that he has been falsely implicated in this case and was arrested when he was going towards the jungle. He is innocent.
5. In the Sessions Court, the prosecution examined as many as 7 witnesses out of whom PW-4 Dinesh is the FIR maker, who has not supported the case of the prosecution. PW-1 is the village Chowkidar while PW-2 is the Patel. They were called at the spot by Devkaran. They are the witnesses of the extra judicial confession made by Hemraj before they handed over him to the police. PW-5 Baldeosingh Thakur is the S.H.O. while Dr. Shailendra Parihar, PW-6 who has conducted the post-mortem of the dead body of the deceased. The report given by Dr. Shailendra Parihar, PW-6 supports the case of the prosecution that the death of the deceased had occurred on account of axe blow given on the parietal region of the head of the deceased and cutting of his legs which according to the doctor led to his death as lot of blood had oozen out of the injuries sustained by the deceased. The statement made by the doctor is reproduced for the sake of reference as under:-
6. PW-3 Ramavtar is also a hostile witness. PW-7 Ayodhya Prasad is only a formal witness who recorded the FIR on the basis of the Dehati Nalishi.
7. The learned Sessions Judge having noted that the eye witness Dinesh has not supported the case of the prosecution has convicted the appellant only on the basis of the extra judicial confession allegedly made out by the appellant before the Village Patel and Chowkidar. The relvant observations made by the learned Judge in this regard appears in paragraphs 12 and 13 which are reproduced hereunder:-
8. In addition to the statements of PW-1 Prahlad Singh and PW-2 Padam Singh, the Court has also taken note of the Dehati Nalishi which again supports the extra judicial confession of the appellant. On that basis, the learned Additional Sessions Judge has concluded as under:-
That does not however affect the merits of the case because the prosecution has been able to produce other satisfactory evidence to establish the guilt of the appellant in respect of the offences for which he has been convicted.
On that basis, the appellant has been convicted and sentenced as aforesaid.
9. Learned counsel for the appellant has submitted that in this case, the only eye witness who has been relied upon by the prosecution namely Dinesh has not supported the case of the prosecution. As such, there is no evidence against the appellant. It is also submitted that the statement of PW-1 Prahlad Singh and PW-2 Padam Singh who are village Chowkidar and Patel and are obliged to inform the police about the commission of crime are persons in authority and are virtually like a police officer. As such the statement if any made by the appellant before them is not admissible against the appellant.
10. On the other hand, learned Government pleader has submitted that statement made before them by Hemraj, the appellant was neither induced with any threat or promise nor these two witnesses were police officials and therefore, the statement made by Hemraj before them in the nature of confession which was voluntary and thus was admissible in evidence against the appellant.
11. We have heard the submissions made on behalf of the parties and have also perused the record.
12. Admittedly, in this case, the eye witness Dinesh or even the other witnesses have not supported the case of the prosecution, whereas Prahlad Singh PW-1 and Padam Singh PW-2 who are village Chowkidar and Patel have deposed about the extra judicial confession made by Hemraj to that extent, their statement has been found admissible by the learned trial Judge. It is on that basis the trial Judge has convicted the appellant u/s 302 of IPC. It would be appropriate to take note of the statement made by Prahlad Singh PW-1 and Padam Singh PW-2 for the sake of appreciation. PW-1 Prahlad Singh in his statement has deposed as under:-
Para 4 of his cross examination is relevant wherein the witness states that soon after the incident Hemraj had not left the spot. Para 4 of the cross examination is reproduced hereunder:-
13. Now coming to the statement of Padam Singh PW-2. He has also referred to the extra judicial confession of Hemraj. He has deposed as under:-
Para 5 of his cross examination is relevant which reads as under:-
14. Now the question which arises for consideration is whether the statement made by the appellant before these two witnesses just in the light of the statement made by the doctor would be sufficient to hold his conviction u/s 302 of IPC. This is depending upon the admissibility of the statement of the aforementioned two witnesses as extra judicial confession made by the appellant before them.
15. In the case before us, the extra judicial confession on which strong reliance has been placed upon by the prosecution to substantiate the conviction as per the judgment of the trial Court is based upon the statement made by the accused confessing his guilt soon after the incident before the village Patel and Chowkidar while the accused has argued that confession made before the Village Chowkidar and Patel is inadmissible in evidence as they are basically authorities who are bound to disclose the crime to the Police and thus, extra judicial confession made before them is hit by Section 26 of the evidence Act.
16. To answer this question it is required to first answer whether the statement made by the appellant before PW-1 and PW-2 amounts to extra judicial confession. The second question required to be answered would be as to whether making of such confession before PW-1 and PW-2 is admissible in evidence. The third question is whether the confession so made was voluntary and is not hit by Section 24, 25 or 26 of the Evidence Act.
17. Before examining the authorities dealing with the admissibility of extra judicial confession, it is required to answer what amounts to extra judicial confession. We may refer to the submissions made on behalf of the learned Government Pleader who submitted that in the present case, in the light of the provisions contained u/s 230 of the M.P. Land Revenue Code as well as Section 40 of the Cr.P.C., the statement made by the appellant before the Village Chowkidar and Patel is admissible in evidence as these persons even though are liable to inform the police about any crime committed in a village, but they are not the police officers. Section 230 of the M.P. Land Revenue Code, 1959 provides for appointment of Kotwars, Patels etc. in a village or every village or group of villages and referring to their duties as prescribed, which include informing the police about any crime which takes place in the village, including the offence such as offence u/s 302 of IPC etc. submits that the confession made by the appellant before the village Chowkidar/Patel was made before his arrest. In any event neither these persons are the police officers nor the accused was arrested at that time and therefore relying upon the judgment as aforesaid it has been contended that the confession made by the appellant before these authorities was admissible in evidence, as extra judicial confession.
18. At this juncture, it will be appropriate to take note of Section 40 of the Cr.P.C. which reads as under:-
40. Duty of officers employed in connection with the affairs of a village to make certain report.-
(1) Every officer employed in connection with the affairs of a village and every person residing in a village shall forthwith communicate to the nearest Magistrate or to the officer in charge of the nearest police station, whichever is nearer, any information which he may possess respecting-
(a) the permanent or temporary residence of any notorious receiver or vendor of stolen property in or near such village;
(b) the resort to any place within, or the passage through, such village of any person whom he knows, or reasonably suspects, to be a thug, robber, escaped convict or proclaimed offender;
(c) the commission of, or intention to commit, in or near such village any non-bailable offence or any offence punishable u/s 143, section 144, section 145, section 147, or section 148 of the Indian Penal Code (45 of 1860);
(d) the occurrence in or near such village of any sudden or unnatural death or of any death under suspicious circumstances or the discovery in or near such village of any corpse or part of a corpse, in circumstances which lead to a reasonable suspicion that such a death has occurred or the disappearance from such village of any person in circumstances which lead to a reasonable suspicion that a non-bailable offence has been committed in respect of such person;
(e) the commission of, or intention to commit, at any place out of India near such village any act which, if committed in India, would be an offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, 231 to 238 (both inclusive), 302, 304, 382, 392 to 399 (both inclusive), 402, 435, 436, 449, 450, 457 to 460 (both inclusive), 489A, 489B, 489C and 489D;
(f) any matter likely to affect the maintenance of order or the prevention of crime or the safety of person or property respecting which the District Magistrate, by general or special order made with the previous sanction of the State Government, has directed him to communicate information.
(2) In this section,-
(i) " village" includes village-lands;
(ii) the expression" proclaimed offender" includes any person proclaimed as an offender by any Court or authority in any territory in India to which this Code does not extend, in respect of any act which if committed in the territories to which this Code extends, would be an offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, 302, 304, 382, 392 to 399 (both inclusive), 402, 435, 436, 449, 450 and 457 to 460 (both inclusive);
(iii) the words" officer employed in connection with the affairs of the village" means a member of the panchayat of the village and includes the headman and every officer or other person appointed to perform any function connected with the administration of the village.
Section 40 is similar to the duties prescribed for Kotwars, Village Chowkidars and Patels as provided in the M.P. Land Revenue Code.
19. At this juncture it would also be relevant to taken note of Section 24 of the Evidence Act which deals with confession and reads as under:-
24. Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding.-A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and 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.
20. This is a negative Section and makes confession made by the accused inadmissible in evidence if it is caused by inducement, threat or promise, i.e. to say if a confession is voluntarily not made before the police, admissibility whereof has been specifically barred u/s 26 may become admissible subject to riders inasmuch as in the case of
21. In Chaya Kant Nayak Vs. State of Bihar (1997) 2 Crimes 297, High Court of Patna held that the extra judicial confession cannot be the sole basis for recording confession of the accused unless the other surrounding circumstances and the material available on record do not suggest his complicity.
From the aforesaid, it can be said that confession made by an accused about his guilt before a person who is not a police officer while he is not in custody may be admissible subject to the riders as aforesaid as extra judicial confession.
22. Extra judicial confession is a weak piece of evidence. It has been laid down by Hon''ble Supreme Court in the case of
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 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.
23. In the case of
8. We have been taken through the evidence of PWs. 1, 2 and 3 before whom extra-judicial confession has been made by the accused. The testimony of PWs. 1, 2 and 3 are consistent. The learned counsel for the respondent pointed out that in the evidence of PWs. 1 and 2 there is contradiction that the accused did not state before them that he came seeking protection from them. In our view, this discrepancy cannot be termed as a contradiction which would be fatal to the prosecution case. Every discrepancy in the statement of witness cannot be treated as fatal to prosecution case. The discrepancy which is not fatal to the prosecution does not create any infirmity. The incident was taken place on 24.1.1992 and PW. 2 was examined on 22.1.1996 after almost four years. Human memories are apt to blur with the passage of time. After lapse of almost four years, it cannot be expected that a witness can depose with mathematical precision.
9. Apart from the unimpeached evidence against the accused there is yet another strong incriminating material apparent against the accused. In his statement under 313 the accused while denying the commission of any offence took the plea that the deceased has committed suicide. His specific plea was that the deceased committed suicide as she had no issue. This plea is completely belied by the medical evidence of Doctor, PW. 5. We have no hesitation to hold that he has taken a false plea and this plea can be taken as an additional link in the chain of circumstances.
10. In the case of
It is well settled that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found to be untrue then the same offers an additional link in the chain of circumstances to complete the chain. Applying the aforesaid principle, we have no hesitation to hold that the circumstances established in the case complete the chain of circumstances to prove the charge of murder against the appellant Swapan Patra and, therefore, the conviction of appellant Swapan Patra has to be upheld u/s 302 IPC. So far as the other two appellants are concerned, as stated earlier, in the absence of any positive evidence even about their presence in the house at the relevant point of time, it is difficult to rope them in even if all other circumstances narrated earlier are established and, therefore, they are entitled to an order of acquittal.
11. "In the case of
27. It is regrettable that the Division Bench had practically nullified the most formidable incriminating circumstance against the accused spoken to by PW 22 Dr. Nand Kumar. We have pointed out earlier the injuries which the doctor had noted on the person of the accused when he was examined on 25.12.1995. The significant impact of the said incriminating circumstance is that the accused could not give any explanation whatsoever for those injuries and therefore he had chosen to say that he did not sustain any such injury at all. We have no reason to disbelieve the testimony of PW 22 Dr. Nand Kumar. A false answer offered by the accused when his attention was drawn to the aforesaid circumstance renders that circumstance capable of inculpating him. In a situation like this such a false answer can also be counted as providing "a missing link" for completing the chain.
12. Another incriminating material against the accused is the seizure of shirt stained with blood. The shirt was sent for FSL. The FSL report was marked as EX. P.15. The report shows that Item No. 1 which is the shirt seized from the accused stained with human blood.
13. In the premises afore-stated, the High Court has committed a grave error in law as well as in facts in recording the acquittal. The High Court order of acquittal is hereby set aside. The order of the trial court recording the conviction of the accused is restored. The accused, Kanda Gopaludu is on bail, his bail bond and surety stand cancelled. He is directed to be taken into custody forthwith. Compliance within one month.
24. In the case of
40. We do not, thus, see any reason as to why such an extra-judicial confession could not be made before a Village Administrative Officer. With a view to exclude the admissibility of the confession made before a person, he must be a police officer. A Village Administrative Officer does not answer the descriptions. While carrying out his duty to inform the Police or the magistrate in terms of Section 40 of the Code, the village headman does not act as a public servant removable only by or with the sanction of the local government nor he acts in his capacity as Magistrate. [See
25. In the light of the aforesaid, it cannot be said that the statement made by the appellant before PW-1 and PW-2 soon after the incident was made by them before another police officer or authorities so as to make such confession inadmissible in evidence. There is nothing to prove that such confession made by the appellant was not made voluntarily or that the witnesses has orally stated what was told to them by Hemraj soon after the incident.
26. We have already discussed the duties of the village Chowkidar and Patel as provided u/s 230 of the M.P. Land Revenue Code and Section 40 of the Cr.P.C. In view of the aforesaid, the mere fact that the village Chowkidar or Patel was obliged to inform the police about any crime which took place in the village they do become police officers so as to make them incompetent to hear the extra judicial confession of accused which is made soon after the incident and before handing over the accused to the police. Thus, the statement made before PW-1 and PW-2 by the appellant becomes admissible as extra judicial confession.
27. We may also make a reference to a later judgment of the Apex Court delivered in the case of
A truthful extra-judicial confession made voluntarily and without any inducement can be made a basis for recording a conviction against person making confession. Herein, the trial Court as also the appellate Court have both found the extra-judicial confession attributed to the appellant to be, voluntary, truthful and unaffected by any inducement that could render it unreliable or unworthy of credence. The confessional statement was made by the appellant almost immediately after commission of the crime. The deposition of PW 1 inspires confidence in absence of any material deficiency in the same. More importantly, there is no suggestion that this witness had any animosity or other reason which would impel him to go so far as to involve the appellant in a case of murder. Moreover, the confessional statement was corroborated by other evidence in the form of medical evidence and deposition of other witnesses. The medical evidence suggests that death of the deceased child was homicidal and that the same was caused by drowning.
28. In the case of
29. In the case of
28. The second circumstance pertains to extra-judicial confession. Mr. Goel, learned counsel for the appellant, has vehemently criticized the extra-judicial confession on the ground that such confession was made after 18 days of the occurrence. That apart, it is submitted that the father of Natha Singh and grand-father of the deceased are real brothers and, therefore, he is an interested witness and to overcome the same, he has deposed in Court that he has strained relationship with the informant, though he had not stated so in the statement recorded u/s 161 of Cr.P.C.
29. The issue that emanates for appreciation is whether such confessional statement should be given any credence or thrown overboard. In this context, we may refer with profit to the authority in Gura Singh v. State of Rajasthan[12] wherein, after referring to the decisions in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh[13], Maghar Singh v. State of Punjab[14], Narayan Singh V. State of M.P. [15], Kishore Chand v. State of H.P. [16] and Baldev Raj v. State of Haryana[17], it has been opined that it is the settled position of law that extra judicial confession, if true and voluntary, can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extra-judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and his evidence is credible. The evidence in the form of extra-judicial confession made by the accused before the witness cannot be always termed to be tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that it was true and voluntarily made, then the conviction can be founded on such evidence alone. The aspects which have to be taken care of are the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession. That apart, before relying on the confession, the court has to be satisfied that it is voluntary and it is not the result of inducement, threat or promise as envisaged u/s 24 of the Act or brought about in suspicious circumstances to circumvent Sections 25 and 26.
30. Recently, in Sahadevan & Another v. State of Tamil Nadu[18], after referring to the rulings in Sk. Yusuf v. State of W.B. [19] and Pancho v. State of Haryana[20], a two-Judge Bench has laid down that the extra-judicial confession is a weak evidence by itself and it has to be examined by the court with greater care and caution; that it should be made voluntarily and should be truthful; that it should inspire confidence; that 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; that for an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities; and that such statement essentially has to be proved like any other fact and in accordance with law.
31. Keeping in view the aforesaid parameters, the criticism advanced against the evidence of Natha Singh, PW-14, and acceptance thereof have to appreciated. There is no dispute that the confession was made before Natha Singh after 18 days. The fact remains that Natha Singh was not in the village and three days after his arrival in the village, the confession was made before him. He has clearly deposed that Jagsir Singh and Roop Singh alias Jagroop Singh had confessed before him. The appellant Jagroop Singh had confessed about the crime and he had produced them before the ASI. True it is, he has improved his version in the cross-examination that he has strained relationship with the complainant which he had not stated in his statement u/s 161 Cr.P.C. but the same cannot make the testimony tainted. Barring that, there is nothing in the cross-examination to discredit his testimony. That apart, there is no suggestion that he had not produced the appellant before the police. There may be some relationship between the informant and this witness but the evidence is totally clear and the confessional statement is voluntary and, in no way, appears to be induced and gets further strengthened by the fact that he produced them before the police. There is no suggestion whatsoever that he had applied any kind of force. It is borne out from that record that Bikkar Singh, another accused, had absconded and the present appellant along with Jagsir Singh came to Natha Singh and confessed and Bikkar Singh confessed before Gurdev Singh, PW-10. In the confessional statement, he has stated about the place where the spade was hidden and led to the recovery to which Natha Singh is a witness. Appreciated from these angles, we are of the considered opinion that the said confessional statement inspires confidence as the same is totally voluntary and by no means tainted.
30. In the case of
31. In the present case, not only the two witnesses PW-1 and PW-2 who are independent witnesses and who have no reason to make a wrong statement against the appellant more so when the statement made before them was made by the appellant soon after the incident; the Dehati Nalishi which has been recorded soon after the incident at the instance of Dinesh, brother of the appellant, wherein there is also a mention about extra judicial confession made by the appellant before these persons, recovery of axe which is responsible for causing injuries on the person of the deceased read with evidence of the doctor who has opined that the death of the deceased was caused on account of the injuries sustained by the axe corroborated, the extra judicial confession made by the appellant before PW-1 and PW-2. The learned Additional Sessions Judge was therefore right in holding that in this case, even though, the eye witnesses have not supported the case of the prosecution, but his guilt is proved by PW-1 and PW-2 coupled with other circumstances.
Thus, we find no infirmity in the approach of the learned Additional Sessions Judge in convicting the appellant for the offence u/s 302 of IPC. Consequently, while maintaining the conviction and the sentence awarded, we dismiss the appeal.
C.C. as per rules.
