1. Present criminal appeal has been preferred by the above named sole appellant against his conviction and sentence dated 29.05.2018/31.05.2018 passed by learned Additional Sessions Judge-I, Dumka in S.T. Case No.185 of 2013 arising out of Ramgarh P.S. Case No.36 of 2012, G.R. Case No.333 of 2012 (hereinafter called the impugned judgment and order), whereby and whereunder the appellant has been held guilty for the offence under sections 302, 201 read with section 34 of Indian Penal Code and sentenced to undergo R.I. for life for the offence under section 302 of IPC along with fine of Rs.500 and 7 years R.I. and fine of Rs.500 for the offence under section 201 of IPC with default stipulation.
FACTUAL MATRIX
2. The prosecution story as depicted in the FIR is that the informant’s daughter namely Sonmani Baski aged about 5-6 years along with other children of her village namely Lalpal Baski aged about 6 years son of the present appellant and Nimai Baski aged about 4 years went to play outside the house on 15.03.2012 at about 10:00 AM. It is alleged in FIR that when the daughter of informant did not return to home, then the informant interrogated with Lalpal Baski(son of the appellant), who disclosed that Sonmani Baski is with his father. Thereafter, the present appellant was inquired by the informant and villagers who flatly denied the whereabouts of missing daughter of the informant rather on the next day, he fled away from his house. On search, no clue of the daughter of the informant was found. It is further alleged that on 20.03.2012, the present appellant returned to his home then again the informant along with his son Shyamlal Baski, Gram Pradhan namely Ramchandra Murmu, Ward Parshad and other villagers went to ask him about Sonmani Baski then his father Jalpai Baski told that Sonmani has been killed and her dead body is buried in the west-north side field covered with mud and water (dal-dal). It is further alleged that on identification of the place by the present appellant and his father, the dead body of the deceased was recovered and villagers assaulted the accused persons causing grievous injuries and thereafter handed over to the police. Accordingly, the FIR was registered.
3. After investigation, charge-sheet was submitted for the offences under section 302, 201 and 34 of IPC against the present appellant and his father Jalpai Baski. Both the accused persons denied the charges and claimed to be tried. After conclusion of the trial, co-accused Jalpai Baski has been acquitted extending benefit of doubt but the present appellant has been convicted and sentenced as stated above, which has been assailed in this appeal.
4. The learned counsel for the appellant has challenged the impugned judgment and order mainly on following grounds:
(i) Out of 11 witnesses examined by the prosecution, there is no eye-witness of the occurrence. The appellant and his father were brutally assaulted and have sustained grievous injuries and a story of confession before villagers was concocted.
(ii) The son of the appellant namely Lalpal Baski aged about 6 years was never interrogated by the police during the investigation and the informant has concocted the story about the disclosure by Lalpal Baski that Sonmani Baski is with his father(appellant).
(iii) The village pradhan namely Ramchandra Murmu in whose presence extra-judicial confession is alleged to have been made by the appellant leading to dead body of the deceased has not been examined in this case. Moreover the alleged extra-judicial confession relied upon by the prosecution is absolutely irrelevant and inadmissible in evidence and no recovery of dead body was effected on the basis of alleged extorted confession of the present appellant.
(iv)The dead body of the deceased was recovered after five days of the occurrence i.e. 20.03.2012 from field covered with mud and water. No dead body can be buried in such a field and there is a probability that the dead body might have been floating with foul smell and detected and recovered by the villagers. Thereafter, the appellant was brutally assaulted and his father was also put under pressure only with a view to falsely implicate in this case.
(v) It is trite that extra-judicial confession is a very week type of evidence and no conviction can be based on it, where such confession is vitiated from use of force, threat and violence and outcome of grievous injuries caused to the accused.
5. In view of the above points of arguments, it is submitted that impugned judgment and order of the conviction and sentence of the appellant is fit to be set aside and this appeal may be allowed.
6. Per contra: learned Spl. P.P. appearing for the State has vehemently refuted the aforesaid points of argument and submitted that the prosecution witnesses have been able to prove the charges leveled against the present appellant beyond all shadow of reasonable doubt. The learned trial court has very wisely apprised, scanned and evaluated the un-rebutted oral as well as documentary evidence adduced by the prosecution. There is no valid and reasonable ground to interfere with the impugned judgment and order with conviction and sentence of the appellant. This appeal is devoid of merits and is fit to be dismissed.
7. There is no doubt that conviction of appellant is based on his extra-judicial confession before villagers. For better appreciation of this case, it is here pertinent to briefly discuss the evidence led by the prosecution.
8. P.W. 1 Shyam Lal Baski is the son of the informant. According to his evidence, on 15.03.2012 at about 11 AM, his sister Sonmani Baski along with two other children were brought by Tinai Baski(appellant) from village Anganbadi Centre, Baskumbha towards the filed, thereafter both the boys returned to their home but his sister was kept by the appellant. Thereafter, Tinai Baski returned to his house on 20th March and upon interrogation with him, he did not disclose in respect of whereabouts of Sonmani Baski. He further disposed that this witness along with his father and other villagers, Gram Pradhan went to the house of the present appellant and asked as to where he has kept the girl since 15th March then the appellant started shivering and the village Pradhan slapped him twice then he disclosed that he has murdered Sonmani Baski and buried her dead body in the marshal land(dal-dal) of his field. His evidence further goes to show that above incident was communicated to village mukhiya and member of chairman Jila Parishad. Tinai Baski put out the dead bod of the girl from his field in presence of several villagers, family members and Mukhiya Panmuri Murmu, District Councilor Kanhai, Gram Pradhan Ramsah Murmu. Thereafter, above incident was reported to the officer in-charge of concerned police station and they arrived at the place of occurrence and recorded fardbayan of his father and FIR was registered.
Prior to occurrence, there was some dispute about landed property but there was no litigation. He has also admitted that for the first time he came to know from Kanai Lal Hembram, who is Anganbadi Sevika that the appellant has taken his sister on 15.03.2012 at about 10:00 AM, the Anganbadi Centre is just adjacent to his house where his sister was studying in KG and she used to go the center at 8:00 AM in the morning and return at 10-11 AM. He further admits that thereafter he met with the appellant on 19th March at about 4:00 PM but not informed to anyone. He was interrogated on 20.03.2012 and upon interrogation, Tinai Baski confessed his guilt and the dead body was recovered and the police arrived at place of occurrence at 12 PM.
9. P.W. 3, Rafail Tudu has also deposed that Sonmani Baski was traceless from 4-5 days, Tinai Baski was interrogated by the village Pradhan and other villagers, who disclosed that he has killed the child and her dead body was buried in his field beneath the mud. The dead body was brought by Tinai Baski from his field.
This witness has also admitted in clear terms in his cross-examination that prior to recovery of the dead body of the deceased child, the appellant was brutally assaulted by the villagers and his one leg was fractured and his father was also assaulted.
10. P.W. 4 Chunda Hembrom is also hearsay witness and had deposed that the daughter of the informant was missing from 4-5 days and her dead body was recovered from the field of Tinai Baski on his confession.
11. P.W.6 Natwar Baski is also a local villager and hearsay witness. According to his evidence the informant’s daughter aged about 5 years was missing from 4-5 days. Tinai Baski fled away from his house. After 4-5 days, Tinai Baski returned to his home, then he was interrogated and told that the child is not with him and after search by the villagers and police, the dead body of the child was recovered at the instance of the Tinai Baski.
12. P.W.7 Babulal Murmu is fufera brother of the informant. According to his evidence, on 17th March, he was informed by his mamera brother Sandi Baski that his girl child is missing from home and again on 20th March, the informant communicated on telephone that the dead body of the girl has been traced out, then he went to the village Basdang, where several villagers were surrounding Tinai Baski and on disclosure of Tinai Baski, the dead body of the Sonmani Baski was recovered. He is a witness of the inquest report.
In his cross-examination, this witness has admitted that when he reached at place of occurrence, the police was present and inquest report was being prepared. He has signed over the inquest report at about 2:30-3:00 PM.
13. P.W.8 Basu Kisku is wife of the informant. She has deposed that her daughter was taken by the Tinai Baski while she was playing with some children and thereafter the dead body was brought out by the Tinai Baski from his field in the presence of the villagers and police.
14. P.W.9 Ramsay Murmu, this witness has disclosed that the field from where the dead body of Sonmani Baski was found belongs to his father Madhwa Murmu. The dead body was found after 4-5 days and at the place of occurrence several villagers were present along with Tinai Baski, who brought out the deceased from his filed.
He has not seen the accused and the deceased together nor at the time of killing her. He has also admitted that he went to the place of occurrence after receiving information of recovery of the dead body at about 12-1:00 PM.
15. P.W. 11 Shikiriya Hembrom, is also witness of the inquest report. According to his evidence Sonmani Baski aged about 5 years was missing from 15.03.2012. The name of Tinai Baski was disclosed by his son namely Lalpal Baski and thereafter Tinai Baski fled away from his home and returned after 4-5 days, then he disclosed that he has killed Sonmani Baski and disposed of her body in his field under mud. He was also present at the time of recovery of the dead body at the instance of Tinai Baski.
In his cross-examination, he admits that Tinai Baski and his father were assaulted by the villagers before the recovery of the dead body.
16. P.W.5 Gandhi Baski is the informant of this case. According to his evidence, on 15.03.2012 at about 8 AM his daughter Sonamani Baski along with Lalpal Baski, Sundar and Ashok went out for playing near palm tree. When his daughter did not return then he asked from Lalpal Baski, who disclosed that she has gone with his father Tinai Baski, then he went to the house of Tinai Baski but he was not present and returned on 20th March. Upon interrogation by the police and the villagers, Tinai Baski brought them towards a filed, where there was a pit and dead body of Sonamani Baski was lying therein, which was exhumed by Tinai Baski.
In his cross-examination, this witness admits that Tinai Baski is his cousin. There was very cordial relationship with the accused and his family members prior to the occurrence. He has further deposed that his daughter was studying in the village Anganbadi Centre and used to go to the Centre at 08:00 A.M. and return at 12:00 PM, but on the date of occurrence, she did not go to the Anganbadi Centre. He has further admitted that the place of occurrence is about 1 Km away from his house and the said filed was so much muddy and covered with water that if anyone put his leg , the whole leg will sink into the mud. The police officer arrived at place of occurrence at about 2 PM then the dead body was brought out but prior to that the villagers have brutally assaulted Tinai Baski due to which his leg was fractured and both the accused persons were brought to hospital by the police.
17. P.W. 2, Nishit Kumar Jha, the doctor who has conducted autopsy of the dead body of Sonamani Baski on 20.03.2012 at about 4:30 Pm and found following:-
External Examination:--
* Entire body was swollen, skin pilled off, blisters were present over entire body, petrification started and very offensive odour coming from the body. Dry mud present over entire body, bruise mark present over neck and upper chest, Face was synosed.
On Dis-section of the body
* Entire internal organs show putrification changes, gas was present in the body, internal and external genital area swollen. Rectal Mucosa prolapsed.
* Smear examination of genital organs shows absence of spermatozoa, no any active injury in genital area was noted. Rigor mortis were absent and putrification were present in the body. Time elapsed since death more than 24 hours.
Opinion:-
* In my opinion cause of death is throttling that result in asphyxia, i.e, de-section of oxygen supply to brain tissue resulted in death.
In cross examination, this witness has clearly admitted that tongue was not protruded. It is also admitted that putrefaction of skin starts after 48 hours of death. This witness also admits that no bones were fractured/effected. Fracture in tracheal ring was not found. No nail mark and scratch mark found externally over the neck.
18. P.W. 10, the Sub-Inspector namely Ashok Kumar is the Investigating Officer of this case. According to his evidence on 20.03.2012 at about 11 AM, a telephonic call was received by Gumla Police Station that in village Basdumah, a dead body of 5 years old girl has been found in field covered with mud and water and excited crowd of villagers are beating to the accused persons. This witness recorded station diary entry (sanha) and proceeded at the place of occurrence along with other police personnels and verified about occurrence. He recorded the fardbayan of the informant Gandhi Baski and accordingly, a formal FIR was registered. He also prepared inquest report of the deceased in presence of the witnesses. Tinai Baski and Jalpai Baski were apprehended by the villagers and were assaulted and handed over to him in injured condition and also seeing their grievous injuries, they were sent to Sadar Hospital, Dumka for treatment. In course of investigation, he recorded the confessional statement of the co-accused persons and after post-mortem report of the deceased and finding sufficient materials against the accused persons, charge-sheet has been submitted against them for the offences under sections 302 and 201 of IPC.
In his cross-examination, this witness has also admitted that before his arrival at the place of occurrence, the dead body was brought out from the muddy filed and on that time Tinai Baski was under unconscious state. He also noticed that there was mud over the head area of the dead body and other parts were covered with mud. He has not inspected the area of dal-dal field, where from the dead body was brought out. He also got injury report of both the accused persons from Sadar Hospital and noticed that legs of both accused persons were fractured.
19. The aforesaid discussion of prosecution evidence unerringly points out the following facts:-
(i) There is no eye-witness of the occurrence and the case and the prosecution hinges upon circumstantial evidence alone.
(ii) The prosecution has relied upon the following circumstances, the victim girl went to play outside the village along with the son of the informant namely Lalpal Baski
(iii) Other boys returned to home except the victim girl and the son of the appellant was interrogated by the informant then he disclosed that Sonmani Baski was staying with his father.
(iv) The present appellant was interrogated by the informant but denied his presence with the daughter of the informant on the alleged date of occurrence.
(v) After 4-5 days of the missing child, the present appellant returned to home then in the presence of Mukhiya, Gram Pradhan and District Councilor and several villagers, the appellant was interrogated strictly by using force i.e. extra-judicial confession of the appellant, then he disclosed that he has killed the deceased and concealed the dead body in his field covered with mud and water.
(vi) The dead body of the deceased was brought out in the presence of the villagers by the accused/appellant.
(vii) After recovery of the dead body, the incident was communicated to the local police station.
(viii) Inquest report and post-mortem report of the deceased were prepared.
(ix) In the opinion of the doctor, who conducted autopsy upon the dead body, the cause of death is opined to be throttling/strangulation.
20. On the basis of above circumstances, the learned trial has held the appellant guilty for the offences under sections 302 and 201 of IPC and sentenced him.
21. In the case of Kalinga v State of Karnataka, (2024) 4 SCC 735 wherein the Hon’ble Apex Court held as under:
“16. It is no more res-integra that an extra-judicial confession must be accepted with great care and caution. If it is not supported by other evidence on record, it fails to inspire confidence and in such a case, it shall not be treated as a strong piece of evidence for the purpose of arriving at the conclusion of guilt. Furthermore, the extent of acceptability of an extra-judicial confession depends on the trustworthiness of the witness before whom it is given and the circumstances in which it was given. The prosecution must establish that a confession was indeed made by the accused, that it was voluntary in nature and that the contents of the confession were true. The standard required for proving an extra-judicial confession to the satisfaction of the Court is on the higher side and these essential ingredients must be established beyond any reasonable doubt. The standard becomes even higher when the entire case of the prosecution necessarily rests on the extra-judicial confession.
22. The law with regard to extra-judicial confession has been succinctly discussed in the case of Munna Kumar Upadhyay @ Munna Upadhya Vs. State of Andra Pradesh through public prosecutor, Hyderabad, Andhra Pradesh reported in (2012) 6 SCC, 174 wherein the Hon’ble Apex Court referring its earlier judgments observed as under:-
“56. This Court has had the occasion to discuss the effect of extra-judicial confessions in a number of decisions. In Balwinder Singh v. State of Punjab [1995 Supp (4) SCC 259] this Court stated the principle that:
“10. An extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance.”
“57. In Pakkirisamy v. State of T.N. (1997) 8 SCC 158 the Court held that:
“8. … It is well settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession.” “58. Again, in Kavita v. State of T.N. (1998) 6 SCC 108 the Court stated the dictum that:
“4. There is no doubt that convictions can be based on extra-judicial confession but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon the veracity of the witness to whom it is made.”
“59. While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extra-judicial confession, this Court in State of Rajasthan v. Raja Ram (2003) 8 SCC 180 stated the principle that:
“19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made.”
The Court further expressed the view that:
“19. … Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused….”
“60. In Aloke Nath Dutta v. State of W.B. (2007) 12 SCC 230, the Court, while holding that reliance on extra-judicial confession by the lower courts in absence of other corroborating material, was unjustified, observed:
“87. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that for the said purpose the court has to satisfy itself in regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession; (iii) corroboration.
“89. A detailed confession which would otherwise be within the special knowledge of the accused may itself be not sufficient to raise a presumption that confession is a truthful one. Main features of a confession are required to be verified. If it is not done, no conviction can be based only on the sole basis thereof.”
“61. Accepting the admissibility of the extra-judicial confession, the Court in Sansar Chand v. State of Rajasthan [(2010) 10 SCC 604 held that:-
“29. There is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material.
23. From the above discussion, the principle propounded by the Hon’ble Apex court transpires that an extra-judicial confession is a week type of evidence, however, the court can still convict someone based on extra-judicial confession, if it is proved to be voluntarily, truthful, and free of inducement threat or promise as per provision of section 24 of the Evidence Act. The court also considers the circumstances in which the confession was made and the reliability of the confession, if the confession is circumstantial and the prosecution case is based solely on it, the accused cannot be convicted unless the prosecution completes the chain of circumstances. Therefore, the extra-judicial confession must be of “sterling quality”.
24. In the present case, extra-judicial confession is essentially based on the deposition of informant (PW 5) Gandhi Baski. According to him, on the very day of occurrence i.e. 15.03.2012 when the informant’s daughter did not return to home then he asked with the son of the appellant namely Lalpal Baski (aged about 4 ½ years) who disclosed that she is with his father . On the same day, the informant went to the house of the appellant then he replied that he does not know about the daughter of the informant. After 4-5 days when the present appellant returned to his home then the informant along with village Pradhan Ramchandra Murmu and other villagers interrogated with the appellant and also slapped and put under danger of life then he disclosed that he has committed murder of Sonamani Baski and concealed her dead body in his filed covered with mud and water. It is stated that dead body of the deceased was brought by the present appellant in presence of villagers and the police. This fact is also asserted by Shyam Lal Baski (PW 1), Rafail Tudu (P.W. 3), Chunda Hembrom (P.W. 4), Natwar Baski (P.W.6), Babulal Murmu (P.W.7), Basu Kisku (P.W.8), Ramsay Murmu (P.W.9), Sikinay Hembrom (P.W. 11), Gandhi Baski (P.W.5) and Nishit Kumar Jha (P.W. 2) but none of the witnesses have been able to prove the exact words amounting to confession of guilt by the accused or recorded by any of the witnesses like village Mukhiya, Ward Parishad or other inimical villagers, who were present at the scene of occurrence. The confessional statement of the present appellant recorded by the Investigating Officer after recovery of dead body, while he was under custody on 20.03.2012, has no relevance in the matter either as a confession of guilt or the recovery of dead body on the strength thereof. The informant has also failed to offer any explanation as to why he did not lodge the report before the police immediately, when he had suspicion for commission of offence by the present appellant on the date of occurrence itself as alleged in the FIR.
25. Extra-judicial confession of the present appellant does not appear to be true and voluntarily in nature rather admittedly it was extorted after giving assault to the present appellant and his father by the villagers and both legs of the appellant were fractured in said assault. It is also surfaced that the field wherein the dead body of deceased has been recovered belongs to PW 9 Ramsay Murmu. As such, the prosecution has also failed to prove that the land in question belong to the appellant. Therefore, the basis of conviction of the appellant in pursuance to his extra-judicial confession is totally unwarranted under law being irrelevant in view of the provisions of sections 24 and 25 of the Indian Evidence Act.
26. So far as the circumstantial evidence proving the guilt of the appellant is concerned are also not sufficient to furnish complete link of chain conclusively pointing towards the guilt of the present appellant. There is no motive for causing death of the deceased, none has seen the accused while he was taking away the victim girl. The claim of informant that the son of the present appellant Lalpal Baski told that Sonmani Baski is with his father, is also not proved by the prosecution by examining as witness. Although, the said child was only about 4-5 years old and also not interrogated by the Investigating Officer. P.W. 1 Shyamlal Baski, who is none else but son of the informant has admitted that his sister(deceased) had gone to Anganbadi Centre for studying, from where she had gone to play with some children but surprisingly none of the staffs of the Anganbadi Centre were interrogated during the investigation and examined as witnesses by the prosecution, which might have revealed true state of affairs.
27. In our thoughtful consideration of each and every aspect of the case and evidence available on record, we find that the prosecution has miserably failed to prove extra-judicial confession of the appellant to be true and voluntarily rather outcome of giving grievous injuries to the appellant and his father. The circumstances relied upon by the prosecution are also not of conclusive nature rather necessary links of chain are lacking to arrive at definite conclusion. We find that the learned trial court has ignored the nature of extra-judicial confession of the appellant and the manner in which it was secured as well as the totality of circumstances of the case and thus arrived at wrong conclusion about guilt of the appellant. Accordingly, we find merits in this appeal, which is hereby allowed and impugned judgment of conviction and sentence dated 29.05.2018/31.05.2018 passed by learned Additional Sessions Judge-I, Dumka in S.T. Case No.185 of 2013 of appellant, is set aside.
28. Appellant is in custody, he is directed to be released forthwith, if not required in any other case.
29. Pending I.A(s), if any, is also disposed of accordingly.
30. Let the copy of this order along with record of trial court be sent back for information and needful.
