Lokesh @ Ballu Tiwari vs The State Of Chhattisgarh

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 800 of 2017 Lokesh @ Ballu Tiwari S/o Shri Bhagwati Prasad Tiwari, aged about 45 years, R/o village Kanpa, Chowki Khandsara, Police Station and District Bemetara, Chhattisgarh. ---- Appellant Versus State of Chhattisgarh, through the Officer in Charge of Police Station - Bemetara, District Bemetara, Chhattisgarh. ---- Respondent For Appellant :- Mr. Roop Naik, Advocate. For State :- Mr. S. S. Baghel, Dy. Govt. Advocate. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (30.01.2024) Sanjay Kumar Jaiswal, J 1. In this Criminal Appeal presented under Section 374 (2) of the Code of Criminal Procedure, 1973, the judgment dated 09.02.2017 passed by the Sessions Judge, Bemetara, District Bemetara, Chhattisgarh in Session Case No.09/2013 "Chhattisgarh State against Lokesh alias Ballu Tiwari" has been challenged, under which, the appellant/accused Lokesh alias Ballu Tiwari has been convicted for the offense punishable under Section 302 of the Neutral Citation 2024:CGHC:3397-DB 2 CRA No. 800 of 2017 Indian Penal Code and sentenced to undergo life imprisonment and pay fine of Rs 1,000/-(one thousand rupees), in case of non- payment of fine, to undergo additional rigorous imprisonment for six months. 2. It is an undisputed fact that appellant Lokesh alias Ballu Tiwari is the husband of deceased Uma Tiwari, who have three children of whom Rinki Tiwari (PW-4) is the eldest daughter and other children are Kumari Namrata alias Chhoti (PW-6) and Kumari Bhuri alias Rajnikanta (PW-7). Appellant's brother Lalit Tiwari (PW-15) resided in Raipur. The appellant lived with his wife Uma Tiwari in village - Kanpa, district - Bemetara. 3. The case of prosecution, in nutshell, is that the Appellant always doubted the character of his wife and used to argue and fight with her. Therefore, Uma Tiwari had sent her elder daughter Rinki Tiwari (PW-4) to her uncle Lalit Tiwari (PW-15) in Raipur. On the date of incident i.e. 20/11/2012, at around 10.00 a.m., the appellant killed his wife Uma Tiwari in the house by an axe. Then he went to Raipur and made an extra-judicial confession in front of his brother Lalit Tiwari (PW-15) and his elder daughter Rinki Tiwari (PW-4) that he had murdered his wife Uma Tiwari. Thereafter, on the information of Village Kotwar Ghasiya Ram (PW-2) in Police Station - Bemetara, Marg - Intimation was recorded vide Ex. P-5, Panchnama of dead body was conducted vide Ex. P-2 and First Information Report was registered vide Ex. P-6. Pursuant to the memorandum statement of appellant Ex. P-13, an axe and the clothes of appellant were Neutral Citation 2024:CGHC:3397-DB 3 CRA No. 800 of 2017 recovered from him and sent to the State Forensic Science Laboratory for chemical examination. The axe and the clothes on which blood was found could not be determined as to whether it was human blood or not. The Police completed the remaining investigation and filed the final report. 4. A total of 23 witnesses were examined by the prosecution in support of its case and 29 documents were exhibited along with photographs from Article-A/1 to Article-A/5. No defense witness has been examined on behalf of the appellant. 5. The trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant / accused for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred questioning the impugned judgment of conviction and order of sentence. 6. Learned counsel for the Appellant argues that there is no direct evidence against the Appellant in the case. The conviction of appellant is based on three circumstantial evidences. The first circumstance is the extra-judicial confession, the second is the seizure/recovery of the axe used in the incident and the clothes of the Appellant in which blood was found and the third circumstance is the reason for assault by the Appellant doubting the character of his wife Uma Tiwari. All three circumstantial evidences have not been proved beyond reasonable doubt by the prosecution. All three circumstantial evidences are weak pieces of evidence and the prosecution has failed to establish the same. The conviction of the Neutral Citation 2024:CGHC:3397-DB 4 CRA No. 800 of 2017 appellant by the trial court is not based on clear and reliable evidence. Since the case is not proved, the conviction and sentence do not deserve to be sustained. Therefore, by accepting the appeal, the judgment in question be set aside and the appellant should be acquitted. In support of his contention, learned counsel for appellant relied upon the judgments of the Hon'ble Supreme Court in the matter of Sahadevan and another v. State of Tamil Nadu (2012) 6 SCC 403, Balwinder Singh v. State of Punjab 1995 Suppl. (4) SCC 259 and Balwan Singh v. State of Chhattisgarh and another (2019) 7 SCC 781. 7. Learned counsel for the respondent/State argues that the finding of the trial court is based on clear and reliable evidence brought on record and the prosecution has proved its case beyond reasonable doubt and there is no need for any interference. Therefore, the appeal should be dismissed. 8. Heard the arguments of both the parties and perused the records. 9. The first question is as to whether the death of Uma Tiwari was homicidal in nature, which the learned trial Court has recorded the finding in affirmative on the basis of postmortem report (Ex.P/28) which is proved by Dr. Satish Kumar Sharma (PW-22) and which is the finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. Neutral Citation 2024:CGHC:3397-DB 5 CRA No. 800 of 2017 10. Now, the next question is, whether the trial Court has rightly held the appellant to be the author of crime in question ? 11. The case of the prosecution is based on the extra judicial confession given by the appellant to Rinki Tiwari (PW-4) & Lalit Tiwari (PW-15) and the memorandum statement of the appellant (Ex. P-13) based on which the axe has been seized vide Ex. P-14. 12. We shall now consider the said pieces of evidence found proved by the trial Court which have been the basis of appellant's conviction, one by one. Extra Judicial Confession 13. It is the settled principle of criminal jurisprudence that extra judicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the Court to base a conviction on such a confession. In such circumstances, the Court would be fully justified in ruling such evidence out of consideration. [See : Sahadevan and another v. State of Tamil Nadu1] 1 (2012) 6 SCC 403 Neutral Citation 2024:CGHC:3397-DB 6 CRA No. 800 of 2017 14. In the matter of Sahadevan (supra), their Lordships of the Supreme Court further considered the earlier decisions including Balwinder Singh v. State of Punjab 2 and pertinently laid down the principle in paragraphs 15.1, 15.8 and 16 as under :- "15.1. In Balwinder Singh (supra) this Court stated the principle that: (SCC p. 265, para 10) "10. An extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance." 15.8. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambigous and should clearly convey that the accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it. (Ref. Sk. Yusuf v. State of W.B. 3 and Pancho v. State of Haryana4.) The principles 16. Upon a proper analysis of the above referred judgments of this Court, it will be appropriate to state the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These percepts would guide the judicial mind while dealing with the veracity of cases 2 1995 Supp (4) SCC 259 3 (2011) 11 SCC 754 4 (2011) 10 SCC 165 Neutral Citation 2024:CGHC:3397-DB 7 CRA No. 800 of 2017 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." 15. The principle of law laid down in Sahadevan (supra) has further been followed with approval in the matter of Pradeep Kumar v. State of Chhattisgarh5 and very recently in the matter of Pawan Kumar Chourasia v. State of Bihar6 wherein the following principle of law has been laid down by their Lordships in paragraph 5 of the report :- "EVIDENTIARY VALUE OF EXTRA-JUDICIAL CONFESSION 5. As far as extra-judicial confession is concerned, the law is well settled. Generally, it is a weak piece of evidence. However, a conviction can be sustained on the basis of extra-judicial confession provided that the 5 Criminal Appeal No. 1304 of 2018, judgment dated 16/03/2023 6 2023 LiveLaw (SC) 197 Neutral Citation 2024:CGHC:3397-DB 8 CRA No. 800 of 2017 confession is proved to be voluntary and truthful. It should be free of any inducement. The evidentiary value of such confession also depends on the person to whom it is made. Going by the natural course of human conduct, normally, a person would confide about a crime committed by him only with such a person in whom he has implicit faith. Normally, a person would not make a confession to someone who is totally a stranger to him. Moreover, the Court has to be satisfied with the reliability of the confession keeping in view the circumstances in which it is made. As a matter of rule, corroboration is not required. However, if an extra-judicial confession is corroborated by other evidence on record, it acquires more credibility. " 16. In the matter of Nikhil Chandra Mondal v. State of West Bengal7, principles of law have been laid down by their Lordships qua evidentiary value of extra judicial confession in paragraphs 13 & 15 as under:- "13.The trial Court observed that where the prosecution case is entirely based on extra-judicial confession and the prosecution seeks conviction of the accused on that extrajudicial confession, the evidence of the witnesses before whom the alleged confessional statement was made, requires a greater scrutiny to pass the test of credibility. 15. It is a settled principle of law that extra-judicial confession is a weak piece of evidence. It has been held that where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. It has further been held that 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. It has been held that there is no doubt that conviction can be based on extra-judicial confession, but in the very nature of things, it is a weak piece of evidence. Reliance in this respect could be placed on the judgment of this Court in the case of Sahadevan and Another v. State of Tamil Nadu (2012) 6 SCC 403. This Court, in the said case, after referring to various earlier judgments on the point, observed thus: "16. Upon a proper analysis of the abovereferred 7 2023 LiveLaw (SC) 171 Neutral Citation 2024:CGHC:3397-DB 9 CRA No. 800 of 2017 judgments of this Court, it will be appropriate to state the principles which would make an extra- judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra- judicial confession alleged to have been made by the accused: (i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution. (ii) It should be made voluntarily and should be truthful. (iii) It should inspire confidence. (iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. (v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. (vi) Such statement essentially has to be proved like any other fact and in accordance with law." 17. In the case at hand, the key witnesses regarding extra-judicial confession are Rinki Tiwari (PW-4) - the eldest daughter of the deceased and Lalit Tiwari (PW-15) - the brother of the appellant. At the time of the alleged incident, Rinki Tiwari (PW-4) was in the house of her uncle Lalit Tiwari (PW-15) in Raipur whereas the incident is said to have taken place in village Kanpa of Bemetara district. Appellant's brother Lalit Tiwari (PW-15) has been a hostile witness who has not supported the case of prosecution on the point that his brother i.e. appellant Lokesh alias Ballu Tiwari had made an extra-judicial confession before him regarding the murder of his Neutral Citation 2024:CGHC:3397-DB 10 CRA No. 800 of 2017 wife Uma Tiwari by an axe. Thus, the prosecution case, on the said point, by the Appellant's brother Lalit Tiwari, does not find any support. 18. The second important witness on the point of extra-judicial confession is the daughter of the deceased Rinki Tiwari (PW-4) who has stated in her court statement that her father i.e. the appellant had come to her and told that he had killed her mother Uma Tiwari. She has further stated that the appellant had gone to Raipur to tell her. But, in cross-examination, she has admitted that neither she had made any report in the Police Station nor his uncle Lalit Tiwari (PW-15) had made any report. They had never even made any complaint against the appellant. If we consider in the light of the above cited judgments, Rinki Tiwari (PW-4) has not made a clear statement that her father Lokesh alias Ballu Tiwari had come to her and given extra-judicial confession. Rinki Tiwari's statement on this point has not been clear as to when, where and before whom Lokesh alias Ballu Tiwari had given extra-judicial confession. At that time, Rinki Tiwari (PW-4) was in Raipur at her uncle Lalit Tiwari's house and she has stated that her father i.e. the appellant had come to Raipur only to tell the incident, but Lalit Tiwari (PW- 15) has been hostile on this point that the appellant had made an extra-judicial confession before him. In this situation, when Lalit Tiwari (PW-15) has been hostile, Rinki Tiwari's statement regarding the alleged extra-judicial confession does not come within the scope of clear evidence due to lack of clarity in her statement. Thus, in the Neutral Citation 2024:CGHC:3397-DB 11 CRA No. 800 of 2017 light of the above cited judgments, the ground of extra-judicial confession has not been proved against the appellant. 19. The second circumstantial evidence against the appellant is Motive. There is no clear evidence of Motive available on record regarding the assault made by the appellant doubting the character of his wife Uma Tiwari. Therefore, the motive which has been stated by the prosection has not been proved. 20. The third circumstantial evidence against the appellant is the memorandum statement made by the appellant (Ex. P-13), based on which, the axe used in the offence and the clothes worn by the appellant were seized vide Ex. P-14. In the case, the FSL report has been proved in the form of Ex. P-29. It is notable that the learned counsel for the appellant has argued that this report has been given three years after the seized articles/property were deposited for chemical examination. The date of seizure of the articles is stated to be 03/12/2012 and the receipt of depositing the said articles in the Laboratory is Ex. P-24 dated 17/12/2012, but the FSL report is Ex. P-29 dated 31/03/2015 i.e. after about two years and three months. In such a situation, where and in what form that articles were there for such a long time and whether it was safe or not, on this point, the appellant party is justified in having doubts. It is noteworthy that in the FSL report, only blood is stated to be found in the said axe and clothes seized on the memorandum statement of the appellant. There is no clear FSL report as to whether the Neutral Citation 2024:CGHC:3397-DB 12 CRA No. 800 of 2017 blood was human blood or not, due to the stain having disintegrated. 21. The Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh and another8 held that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood and held in Para-24 as under:- "24.In the instant case, then, we could have placed some reliance on the recovery, had the prosecution at least proved that the blood was of human origin. As observed supra, while discussing the evidence of PWs 9 and 16, the prosecution has tried to concoct the case from stage to stage. Hence, in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery of the weapons and tabbal, and such recovery does not help the case of the prosecution." 22. Further, the Supreme Court in the matter of Mani v. State of Tamil Nadu9, considering the nature, scope and applicability of Section 27 of the Indian Evidence Act, 1872, has held that discovery is a weak kind of evidence and cannot be wholly relied upon and has observed the following in paragraph 26 of the judgment :- "26. The discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious 8 (2019) 7 SCC 781 9 (2009) 17 SCC 273 Neutral Citation 2024:CGHC:3397-DB 13 CRA No. 800 of 2017 matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case. We have already held that the prosecution has failed to prove that the house where alleged bloodstains were found belonged exclusively or was possessed exclusively by the appellant, we have further pointed out that the discovery was absolutely farcical. There is one other very relevant factor ignored by both the courts that the prosecution never made any attempts to prove that the clothes belonged to the appellants. There is literally no evidence to suggest anything to that effect. Therefore, even if we accept the discovery, it does not take us anywhere near the crime. Both the courts below have ignored this very important aspect. Once these two important circumstances are disbelieved, there is nothing which would remain to support the prosecution theory." 23. Reverting to the facts of the present case, in the light of the aforesaid discussion, it is quite vivid that the extra-judicial confession made to Rinki Tiwari (PW-4) & Lalit Tiwari (PW-15) is not true and voluntary. Further, pursuant to the memorandum statement of the appellant (Ex.P/13), blood stained axe was seized vide Ex.P/14, which was sent for chemical analysis to FSL, but from the FSL report it is not proved that human blood was found on the clothes and the axe which were seized from the appellant. The FSL report is also about 2 years and 3 months after the seized articles/property were deposited. That is why, the said report is doubtful. In view of the decisions rendered by the Supreme Court in the matters of Balwan Singh (supra) & Mani (supra), recovery is of no use to the prosecution. Consequently, we are unable to uphold the conviction of the appellant for offence under Section 302 of the IPC and the appellant is entitled for benefit of doubt. Neutral Citation 2024:CGHC:3397-DB 14 CRA No. 800 of 2017 24. Accordingly, the impugned judgment dated 09.02.2017 passed by the Sessions Judge, Bemetara, in Sessions Case No.9/2013 convicting and sentencing the appellant for the offence under Section 302 of IPC, is hereby set aside/quashed and the appellant is acquitted from the said offence. The appellant is reported to be in jail since 18.07.2014, we direct that he be released from jail forthwith, if not required in any other matter. 25. This criminal appeal is allowed. 26. Let a certified copy of this judgment along with the original record be transmitted forthwith to the trial Court concerned and to the Superintendent of Jail where he is lodged and suffering jail sentence, for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Khatai