Parsu @ Parasram Gond v. State of Chhattisgarh

Hon'ble Shri Radhe Shvam Sharma, J J Criminal Aooeal No. 1495 of 1996 ^_., _ APPELLANT Late Parsu @ Parasram Gond, S/o Shri Shobharam Gond, Caste- Uikey, Aged 28 years, R/o Village Salkha, Dhanuhapara Mohalla, Police District Bilaspur, M.P. C.G.) Ratanpur, (Now Station RESPONDENT Versus State of Chhattisgarh Through : P.S. Ratanpur, District Bilaspur (Criminal Aooeal under Section 374 (2) ofThe Code of Criminal Procedure, 1973) Anoearance: Mr. Sourabh Sharma and Mr. Aditya Sharma, Advocates for the appellant. Mr. Arvind Dubey, Panel Lawyer for the State; JUDGMENT _(4&-. 10.2012) '^ Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) This appeal is directed against the judgment dated 7th of August, 1996 passed in Sessions Trial No. 456/95 by the Sixth Additional Sessions Judge, Bilaspur. By the impugned judgment, the appellant has been convicted u/s 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.50/- with default sentence of R.I. for 1 month. --.^^l^ ^s^ Criminal ApDealNo. 1495 of 1996 (2) The facts, briefly stated, are as under:- The case of the prosecution is that deceased- Paras Ram had illicit relations with the wife of the appellant. On

9.8.95, in the evening, he had gone out from his house. He did not return in the night. In the morning i.e. on 10.8.95 his dead body was found near marghaf (cremation ground) of the village. He had sustained multiple serious injuries. First Information Report (F.I.R. - Ex.-P/l) was lodged by his brother- Chandram (PW-1). In the F.I.R. (Ex.-P/l) he raised suspicion against the appellant. The Investigating Officer reached to the place of occurrence, gave notice (Ex.-P/2) to the Panchas and prepared inquest (Ex.-P/S). on the dead body of the deceased. The dead body was sent fpr ,ppst- niortem to Government Hospital, Ratanpur by requisition Ex.-P/20. The post-mortem examination was conducted by Dr. N.K. Samdariya (PW-8). He found multiple incised wounds on the dead body of the deceased and opined that the death wa,s on account of the above injuries and it was horaicidal in nature. The post-mortera report is Ex.-P/17. Maniram (PW-3) was village Kotwar. He contendpd. that on 10.8.95, while the investigation was going on, appellant made extra-judicial confession before him which he told to the Investigating Officer, Ashok Joshi (PW-9). The appellant, then made confession before the Panchaz/af in presence ofpolice. In further investigation, the appellant was taken into custody and his memorandum statement (Ex.- ^.:^Jv'n/ ^^y Criminal Appeal No. 1495 of 1996 P/4) u/s 27 ofthe Evidence was recorded at about 4.30 p.m. on 11.8.95 and the clothes and a. patasi (a sharp edged object) were seized at his instance vide seizure memo(s) Ex.- P/5, P/6, P/7 & P/8. The above articles and the articles seized froin the place of occurrence and the hairs allegedly found in the hand of the deceased and the sample of hairs of the appellant, all were sent for their chemical examination to Forensic Science Laboratory (F.S.L.), Sagar, from where, reports were received vide Ex.-p/23 & P/24. According to the F.S.L. reports, blood stains were not found on the underwear (Article-A), towel (Article-B) and patasi (Article-L) seized at the instance of the appellant. Blood stains were also not found on the nails (Ariticle-I) and hairs (Article-K) of the appellant. Blood stains was also not found in the hairs (Article-J) found in the hand of the deceased. About the hairs, it was found that though both the hairs were humaii hairs, but the samples were inadequate for comparison. (3) The case of the prosecution was mainly based on the extra- judicial confession made before Village Kotwar, Maniram (PW-3). The learned Sessions Judge relied on the extra-judicial confession made before Kotwar and convicted & sentenced the appellant as above. (4) Mr. Sourabh Sharma and Mr. Aditya Sharma, learned counsel appearing on behalf of the appellant, have argued that the circumstance of extra-judicial confession was not established; the IN»» 'i S^% -^./ Criminal Appeal No. 1495 of 1996 ^ evidence of Maniram (PW-3) was unreliable; blood stains were not found on the articles seized from the possession of the appellant; it was not proved that the hairs found in the handof the deceased and the hairs of the appellant were sirailar; therefore, conviction based on above evidence of extra-judicial confession cannot be sustained. (5) On the other hand, Mr. Ar^indDubey, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (6) Having heard leamed counsel for the parties at lengih,we have perused the records ofthe sessions case. (7) The conviction of the appellant is raainly based on the evidence of extra-judicial confession. (8) Maniram (PW-3) is the solitary witness of extra-judicial [iNMNte confession. Maniram (PW-3) was village Kotwar. He deposed that on the fateful day at about 12-12.30 p.m. he met the appellaht on the way. The appellant was coming from his house. The appellant stated that sihce the deceased had illicit relations with his (appellant's) wife, he has committed murder of the deceased. Maniram (PW-3) said the appellant that Daroga Saheb is present in the village, go and tell him. Thereafter Maniram (PW-3) went to Daro^a, Ashok Joshi (PW-9), who was making panchnama aiid told him about the extra-judicial confession made by the appellant ^a^w^ ^.^ Criminal Appeal No. 1495 of 1996 tohim.In cross-examination, he admitted that he had gone along with Chandram (PW-1) to lodge the report of the incident. They had returned to the village at about 11.00 a.m. Thereafter the police also came in the village. When the appellant made confession before him, he immediately told it to Daroga. He deposed that then the appellant also confessed before Daroga. However in Para-7 of his cross-examination, he admitted th?t when the appellant did not tell the police about the incidenttill 12 in the night, then he was taken to the police station and was again brought in the village at about 3-4.00 a.m. by the police and then the police persons told the village persons that the appellant had accepted his guilt and they should also ask and then fhe appellant confessed before the villagers. Vishamber, he himself, Ashwani and many other persons along with police persons were present at that time in the Panchayat Bhawan. (9) Sub-Inspector, Ashok Joshi (PW-9), is the Investigating Officer. Though he deposed about the entire investigation and preparation of various documents, he did not depose that village Kotwar, Manirani (PW-3), had informed him during thecourse of investigation appellant had made extra-jydicial confession before him. He deposed in Para-22 ofhis evidence that on 10.8.95 he was throughout in the village and he returned to the police station at about 4-5.00 p.m. on 11.8.95. He denied the suggestion that in between this period he had taken the appellant to the police station in the night of 10.8.95 and brought him in ^....^^ •'-'% ^J^^ -sy ^ Criminal AppealNo. 1495 of 1996 the morning as claimed by Kotwar (PW-3). If we look into the discovery statement (Ex/-P/4) of the appellant, it was recorded at about 4.30 p.m. on 11.8.95 aftertaking the appellant into custody at that very point of time. We have no reason to disbelieve the evidence ofAshok Joshi (PW-9). (10) In appreciation of the evidence of Maniram (PW-3) and AshokJoshi (PW-9), we find the above part ofevidence ofManiram (PW-3) unreliable in which he claimed that prior to recording of the discovery statement of the appellant on 11.8.95, the appellant was taken by the police to the police station and was again brought back when he admitted his guilt before the police. The evidence of Maniram (PW-3) that he had told about the confession to the 1.0. (PW-9) on 10.8.95 also becom.es false on the evidence of

1.0. (PW-9) who did not depose that Kotwar (PW-3) had told him about confession made by the appellant. Thus, the evidence of Manirain (PW-3) which was contrary to the evidence of Ashok Joshi (PW-9) on the above material particulars^ was not wholly reliable. (11) In Sk. Yusuf-Vs- State of West Benaat AIR 2011 SC 2283, the Supreme Court held that the extra judicial confession is weak type of evidence. It must be established to be true and made voluntarily in a fit state of mind. The words ofwitness must be clear, unambiguous and clearly convey that accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test :"^ ^..-•^s^ ^ a / ^ .'^-.^',.r '^^2^ Criminal Appeal No. 1495 of 1996 t^> of credibility. Reference has been made to State ofRajasthan -Vs- RajcLRam,J2003) 8 SCC 180 and Kulvinder Sinah <& Another -Vs- State ofHaniana (2011) 5 SCC 258. (12) In light of the above principles laid down by the Supreme Court and further in light of the evidence of Maniram (PW-3), we are of the view that it was not safe to rely on his solitary evi<dence relating to extra-judicial confession allegedly made by the appellant before hira. The learned Sessions Judge fell into error in holding that it was proved by the evidence of Manirain (PW-3) that the appellant had made extra-judicial confession before him. (13) So far as discovery and seizure part is concerned, blood stains were not found on the clothes of the appellant and the patasz, seized at the instance of the appellant. Therefore,imere seizure of those articles, belonging to the appellant, were not incriminating against him. (14) Some hairs were found in the hand of the d'eceased. Therefore, hairs of the appellant were also seized. Though it was found by the F.S.L. that both the hairs were human hairs, but it was not established that they were of the same person. Thus the above evidence was also not incriminating against the appellant as it was not proved that the hairs found in the hand of the deceased were the hairs of the appellant which were seized on the pretext the deceased might have got them in his han,d while quarrelling or scuffling with the assailant. :r1^: ;.^;<^ ^•^J x?s ^ Criminal Appeal No. 1495 of 1996 ^ (15) In a circumstantial evidence, circumstances must be fully established. The circumstances so established should be of conclusive nature and tendency. They should not be capable of being explained and the chsdn of circumstantial evidence must be complete. But in the instant case, neither the circumstances were fully established, nor the chain of circunistantial evidence was also complete. (16) For the foregoing reasons, we are unable to sustain the conviction of the appellant on the above set of circumstantial evidence. (17) Accordingly, the appeal is allowed. The conviction and sentences awarded to the appellant u/s 302 IPC are set-aside. The appellant is acquitted of the charges framed against him. It is stated that the appellant is on bail. His bail bonds are cancelled and surety stands discharged. Sd/- SunilKumarSinha Judge Sd/- R.S. Sharma Judge