Chandrapal v. State of Chhattisgarh (earlier M.P.)

BELA M. TRIVEDI, J. 1. The instant appeal is directed against the judgment and order of conviction and sentence passed by the High Court of Chhattisgarh at Bilaspur in Criminal Appeal No. 1812 of 1998. 2. As per the case of prosecution, the deceased Kumari Brindabai was the daughter of Bhagirathi Kumhar who belonged to the caste Kumhar. The deceased Kanhaiya Siddar was the resident of vi llage Panjhar and belonged to the caste Siddar (Gaur). There was a love affair going on between Kumari Brindabai and Kanhaiya Siddar, which the said Bhagirathi and his brother Chandrapal did not approve. O n 02.12.1994, both Kumari Brinda and Kanhaiya went missing. A search was made, however, no missing report was lodged. On 11.12.1994, at about 09:00 am, Lodhu (PW-2) went to Kajubadi (Cashew Nursery) and saw that the dead bodies of the deceased Kumari B rinda and Kanhaiya were hanging on a cashew tree. He therefore came back and informed the Sarpanch Baran Singh Thakur. Their bodie s were in decomposed state and were not identifiable, however the in formant Chandrapal identified the dead bodies. Thereafter, Merg intimations were lodged by Chandrapal and Bholasingh (PW-4) at about 16:00 hrs. and 16:05 hrs. on 11.12.1994, which were registered at no. 67/94 and 68/94 respectively. The dead bodies were sent for postmor tem. In the postmortem report of the deceased Kumari Brinda (Ex. P/22), conducted by Dr. R.K. Singh (PW-13), it was opined that the ligature ma rk over her neck was antemortem in nature, and the cause of death appeared to be Asphyxia due to hanging. In the postmortem report (Ex. P/23) of the deceased Kanhaiya also, it was opined that the cause of death appeared to be Asphyxia due to hanging. In both the postmortem reports, it was stated that the death had occurred within 8 to 10 days and the nature of the death was suicidal. As per the further case of the prose cution, on 02.12.1994, the deceased Kanhaiya was sitting at the premises of village Panchayat, where some TV programme was going on. He, therea fter, left the said place and went to the hand pump for rubb ing his axe CHANDRAPAL v. STATE OF CHHATTISGARH (EARLIER M.P.) (gandasu). At that time the accused Chandrapal called Kanhaiya and took him to his house, shut him down in the room and all the accused i.e., Bhagirathi, Chandrapal, Mangal Singh and Videshi in furtherance of their common intention pressed his neck and committed his murder. Thereafter, the accused Mangal Singh and Videshi committed the murder of Kumari Brinda. After committing their murders, they kept the dead bodi es of Kanhaiya and Brinda in the house upto 04.12.1994 and then took the dead bodies to Kajubadi. The accused thereafter hanged the dead bodies of both the deceased by tying the noose in their necks with t he tree of cashew in the Kajubadi and attempted to give it the shape of their having committed suicide. 3. The Sessions Court framed the charge against the four accused i.e., Bhagirathi, Chandrapal, Mangal Singh and Videshi, for the offence under section 302, in the alternative under section 302 read with section 34 of IPC. Each of the accused was also separately charged for the offence under section 201 read with section 34 of IPC, as al so for the offence under section 3(2)(v) of the Schedule Caste and Schedule Tribe (Prevention of Atrocities), Act, 1989. The prosecution to bring home the charges levelled against the accused had examined 16 witnesse s and also adduced documentary evidence. The First Additional Sessions Judge, Raipur (Chhattisgarh), after the appreciation of the evidence on record, vide the judgement and order dated 03.08.1998, acquitted all the accused from the charges levelled against them under section 3(2)(v) of the SC ST Act, however, found them guilty of the offences under section 302 and 201 read with section 34 of IPC. They all were se ntenced to imprisonment for life for the offence under section 302 read with section 34 of IPC, and were directed to undergo rigorous imprisonment for a period of two years for the offence under section 201 read with section 34 of IPC. 4. Being aggrieved by the judgement and order passed by the Sessions Court, the accused Bhagirathi, Chandrapal and Mangal Singh preferred an appeal being the Criminal Appeal No. 1812 of 1998 and the accused Videshi preferred an appeal being Criminal Appeal No. 2005 of 1998 before the High Court of Chhattisgarh at Bilaspur. The High Court vide the impugned judgement and order, confirmed the conviction and sentence imposed on the accused no. 2 Chandrapal for the offence under section 302 read with section 34, and under section 201 read with section 34 of IPC and accordingly dismissed the Criminal Appeal No. 1812 of 373 1998 qua the said accused Chandrapal. However, the High Court se t aside the conviction and sentence imposed on the accused Bhagi rathi Kumhar, Mangal Singh and Videshi for the offence under section 302 read with section 34 of IPC, nonetheless confirmed their conviction for the offence under section 201 read with section 34 of IPC, and sentenced all of them to the period already undergone by them. Accordingly, the Criminal Appeal No. 1812 of 1998 and 2005 of 1998 stood partly allowed. The present appellant-accused Chandrapal being aggrieved by the said judgement and order passed by the High Court has preferred the present appeal. 5. The learned counsel Mr. Akshat Shrivastava appearing for the appellant taking the Court to the evidence of the witnesses examined by the prosecution, more particularly of PW-2, PW-4, PW-5 and PW-6, submitted that there were major contradictions in their evidence as regards the alleged extra judicial confession made by the accused Videshi before them. Relying upon various decisions of this Court, he submitted that conviction cannot be based on the extra judicial confession made by the co-accused, which is of a very weak kind of evidence. Repelling the theory of ‘Last seen theory’, he submitted that the statem ent of PW1 Dhansingh who had allegedly last seen Kanhaiya, having been called by the present appellant, was recorded after 4 months of the incident. Even as per the case of the prosecution, the said incident of calling Kanhaiya by the appellant was 10 days prior to the date on which the dead bodies were found in the Kajubadi, and there being long time gap between the day the deceased was allegedly last seen with the appellant and the day when his dead body was found, it was very risky to convict the appellant solely on such evidence. He further submitted that the doctor who had performed the postmortem had also opined that the cause of death was asphyxia as a result of hanging and the nature was suicidal. Thus, in absence of any clear or cogent evidence against the appellant, both the courts had committed gross error in convicting the appellant. 6. However, the learned counsel appearing for the respondent State submitted that there being concurrent findings recorded by the Sessions Court as well as High Court with regard to the g uilt of the appellant, the Court may not interfere with the same. While fairly agreeing that an extra judicial confession would be a weak piece of evidence, he submitted that there was other corroborative evidence adduc ed by the prosecution which conclusively proved the entire chain of circumstances CHANDRAPAL v. STATE OF CHHATTISGARH (EARLIER M.P.) [BELA M. TRIVEDI, J.] leading to the guilt of the present appellant. According to him, after the alleged incident on 02.12.1994, till the dead bodies were recovered on 11.12.1994, nobody had seen the deceased Brinda and Kanhaiya in the village, and therefore the evidence of PW-1 Dhansingh who ha d seen Kanhaiya lastly with the present appellant was required to be believed, as believed by the courts below. According to him, the concerned doctor who had carried out the postmortem had also opined that the death of the deceased could be homicidal death also. 7. At the outset, it may be stated that undisputedly the entire case of the prosecution rested on the circumstantial evidence, as there was no eye witness to the alleged incident. The law on the appre ciation of circumstantial evidence is also well settled. The circumstances concerned “must or should be” established and not “may be” established, as held in Shivaji Sahabrao Bobade & Anr. Vs. State of Maharashtra 1. The accused “must be” and not merely “may be” guilty before a c ourt can convict him. The conclusions of guilt arrived at must be sure conclusions and must not be based on vague conjectures. The entir e chain of circumstances on which the conclusion of guilt is to be drawn, should be fully established and should not leave any reasonable ground for the conclusion consistent with the innocence of the accused. The five golden principles enumerated in case of Sharad Birdhichand Sarda Vs. State of Maharashtra2 laid down in para 152 may be reproduced herein for ready reference: “152. A close analysis of this decision would show that t he following conditions must be fulfilled before a cas e against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sah abrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047] 1 (1973) 2 SCC 793 2 (1984) 4 SCC 116 375 “Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.” (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 e xcept that the accused is guilty, (3) the circumstances should be of a conclusive nat ure and tendency, (4) they should exclude every possible hypothesis ex cept the one to be proved, and (5) there must be a chain of evidence so complete a s not to leave any reasonable ground for the conclusion cons istent with the innocence of the accused and must show that in all human probability the act must have been done by th e accused.” 8. It is also needless to reiterate that for the purpo se of proving the charge for the offence under Section 302, the prosecution must establish “homicidal death” as a primary fact. In order to convict an accused under Section 302, the court is required to first see as to whether the prosecution has proved the factum of homicidal death. So far as the facts of present case are concerned, the evidence of PW-13 Dr . R.K. Singh, who had carried out the post-mortem of the deceased Brinda and Kanhaiya, would be most relevant in this regard. He had s tated in his deposition before the court, inter alia, that on 12.12.1994, he had carried out the post-mortem of Kumari Brinda, daughter of Bhagirathi, and of Kanhaiya alias Chandrashekhar Gaur. The dead bodies of both the deceased were in decomposed state. He had further stated that the knot mark present on the neck of the deceased Brinda was ante-m ortem, and that the cause of death appeared to be Asphyxia due to hangi ng. The death had taken place within 8 to 10 days and the nature of deat h was Suicidal. The said Doctor had stated similar facts for Kanhaiya that the dead body of Kanhaiya was found bent towards left side f rom his neck and a ligature mark having size 10" x 5" was present on the neck. The cause of death appeared to be Asphyxia due to hanging and the death appeared to have taken place within 8 to 10 days. He had further CHANDRAPAL v. STATE OF CHHATTISGARH (EARLIER M.P.) [BELA M. TRIVEDI, J.] stated that there was neither fracture found on the dead bodie s of the deceased, nor any blood clots were found, nor any injuries were found, and therefore he had opined that the cause of death was hanging which normally is found in case of suicide. He specifically st ated that as the dead bodies were decomposed, he could not express any opinion whether it was a homicidal death. In the cross-examination by the learned counsel for the accused, he had categorically admitted that he did no t find any symptom of homicidal death, nor he had opined in his report given on 12.12.1994 that the deaths of the deceased were homicidal. Of course, he had stated that on the basis of the report submitted on 30.04.1995, an inference could be drawn that the deaths could be homicidal deaths. 9. It is worth noting that the High Court in the impugned judgment has not considered at all the evidence of Dr. R.K. Singh to come to the conclusion whether the deaths were homicidal deaths, before confirming the conviction of the appellant for the offence under Section 302 I PC. Unfortunately, the Sessions Court also in para 23 of its judgment observed that the statement of Dr. R.K. Singh was not important because he had expressed an opinion which was neither beneficial to the pros ecution nor to the defence. In our opinion, when the case of the p rosecution rested on circumstantial evidence, it was imperative for the prosecution to prove beyond reasonable doubt that the deaths of the deceased were homicidal deaths and not suicidal, more particularly when t he line of defence of the accused was that the Brinda and Kanhaiya had committed suicide, and when Dr. R.K. Singh who had carried out their post-mortems had also opined that the nature of their deaths was Suicidal. 10. This takes the court to examine the incriminating evidence relied upon by the prosecution, that is the extra judicial confession made by the co-accused Videshi. According to the prosecution, the accus ed Videshi had made self-inculpatory confession before the PW-4 Bhola Singh and also made confession before the PW-5 Chandrashekhar, PW- 6 Baran Singh and PW-7 Dukaluram, involving the other accused including the present appellant. The prosecution had also produced an affidavit of Videshi (Ex-P/11) allegedly affirmed before the Notary. Thou gh the Sessions Court relying upon the said evidence of extra judicial confession of Videshi convicted all the four accused, the High Court partly believing the said extra judicial confession, acquitted the t hree accused i.e., Bhagirathi, Mangal Singh and Videshi from the charges levelled against them under Section 302 read with 34 of IPC, however convicted them 377 for the offence under Section 201 read with 34 by holding that the said accused had tried to cause disappearance of the evidence. 11. At this juncture, it may be noted that as per Section 30 of the Evidence Act, when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the court m ay take into consideration such confession as against such other person as well as against the person who makes such confession. However, this court has consistently held that an extra judicial confession is a weak kind of evidence and unless it inspires confidence or is fully corroborat ed by some other evidence of clinching nature, ordinarily conviction f or the offence of murder should not be made only on the evidence of ext ra judicial confession. As held in case of State of M.P. Through CBI & Ors. Vs. Paltan Mallah & Ors.3, the extra judicial confession made by the co-accused could be admitted in evidence only as a cor roborative piece of evidence. In absence of any substantive evidence against the accused, the extra judicial confession allegedly made by the co-accused loses its significance and there cannot be any conviction based on such extra judicial confession of the co-accused. 12. In Sahadevan & Anr. Vs. State of Tamil Nadu 4, it was observed in para 14 as under: “14. It is a settled principle of criminal jurisprudenc e that extra-judicial confession is a weak piece of eviden ce. Wherever the court, upon due appreciation of the en tire 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 confessio n suffers from material discrepancies or inherent improbabilitie s and does not appear to be cogent as per the prosecution versio n, it may be difficult for the court to base a conviction on s uch a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideratio n.” The said ratio was also reiterated and followed by this court in cases of Jagroop Singh Vs. State of Punjab 5, S.K. Yusuf Vs. State of CHANDRAPAL v. STATE OF CHHATTISGARH (EARLIER M.P.) [BELA M. TRIVEDI, J.] 3 (2005) 3 SCC 169 4 (2012) 6 SCC 403 5 (2012) 11 SCC 768 West Bengal6 and Pancho Vs. State of Haryana7, wherein it has been specifically laid down that the extra judicial confes sion is a weak evidence by itself and it has to be examined by the court wi th greater care and caution. It should be truthful and should inspire confidence. An extra judicial confession attains greater credibility and evidentiary value if it is supported by chain of cogent circumstances a nd is further corroborated by other prosecution evidence. In the instant case it is true that the co-accused Videshi had allegedly made self-inculpa tory extra judicial confession before the PW-4 Bhola Singh, and had made extra judicial confession before the other witnesses i.e., PW-5 Chandrashekhar, PW-6 Baran Singh Thakur and PW-7 Dukaluram stating, inter alia, that the other three accused i.e., Bhagirathi, Chandrapal and Mangal Singh had committed the murder and he (i.e. Videshi) was asked to assist them in disposing the dead bodies and concealing the evide nce. However, the High Court, considering the inconsistency bet ween the said two extra judicial confession made by the co-accused Videshi, did not find it safe to convict the other accused i.e., Bhagirathi , Mangal Singh and Videshi himself, and the High Court surprisingly considered the said extra judicial confession made by Videshi as an incriminating circumstance against the appellant Chandrapal for convicting him for the offences charged against him. In our opinion if such weak piece of evidence of the co-accused Videshi was not duly proved o r found trustworthy for holding the other co-accused guilty of committing murder of the deceased Brinda and Kanhaiya, the High Court could not ha ve used the said evidence against the present appellant for the purpose of holding him guilty for the alleged offence. 13. This takes the court to examine the theory of “Last se en together” propounded by the prosecution. As per the case of prosecution, PW-1 Dhansingh had seen the accused Chandrapal calling the deceased Kanhaiya and taking him inside his house on the fateful night. A part from the fact that the said Dhansingh had not stated about the time or date when he had lastly seen Kanhaiya with Chandrapal, even assuming that he had seen Chandrapal calling Kanhaiya at his house when he was sitting at the premises of village panchayat, the said ev en had taken place ten days prior to the day when the dead bodies of th e deceased were found. The time gap between the two incidents i.e., the day when Dhansingh saw Chandrapal calling Kanhaiya at his house and the day 6 (2011) 11 SCC 754 7 (2011) 10 SCC 165 379 Kanhaiya’s dead body was found being quite big, it is difficult to connect the present appellant with the alleged crime, more particu larly when there is no other clinching and cogent evidence prod uced by the prosecution. 14. In this regard it would be also relevant to regurgitate the law laid down by this court with regard to the theory of “Last seen together”. 15. In case of Bodhraj & Ors. Vs. State of Jammu and Kashmir8, this court held in para 31 that: “31. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead i s so small that possibility of any person other than the acc used being the author of the crime becomes impossible….” 16. In Jaswant Gir Vs. State of Punjab 9, this court held that in absence of any other links in the chain of circumstantial ev idence, the accused cannot be convicted solely on the basis of “Last seen together”, even if version of the prosecution witness in this regard is believed. 17. In Arjun Marik & Ors. Vs. State of Bihar10, It was observed that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused, and therefore no convi ction on that basis alone can be founded. 18. As stated hereinabove, in order to convict an accused un der Section 302 IPC the first and foremost aspect to be proved by prosecution is the factum of homicidal death. If the evidence of prosecuti on falls short of proof of homicidal death of the deceased, and if the possibility of suicidal death could not be ruled out, in the opinion of this court, the appellant-accused could not have been convicted merely on the basis of the theory of “Last seen together”. 19. Ergo, having regard to the totality of evidence on record, the court is of the opinion that the High Court had committed gross error in convicting the appellant-accused for the alleged charge of 302 read with CHANDRAPAL v. STATE OF CHHATTISGARH (EARLIER M.P.) [BELA M. TRIVEDI, J.] 8 (2002) 8 SCC 45 9 (2005) 12 SCC 438 10 1994 Supp (2) SCC 372 34 of IPC, relying upon a very weak kind of evidence of extra judicial confession allegedly made by the co-accused Videshi, and relying upon the theory of “Last seen together” propounded by the PW-1 Dhansingh. It is also significant to note that no evidence worth the name as to how and by whom the deceased Brinda was allegedly murdered was produced by the prosecution. Under the circumstances, it is required to be held that the prosecution had miserably failed to bring home the char ges levelled against the appellant-accused beyond reasonable dou bt. The suspicion howsoever strong cannot take place of proof. 20. For the reasons stated above, the appeal deserves to be allowed and is accordingly allowed. The appellant-accused Chandrapal is acquitted from the charges levelled against him. He is directed to be set free forthwith. 21. Office is directed to do the needful and to send the cop y of the order to the concerned jail authority at the earliest. Nidhi Jain Appeal allowed.