Chattisgarh High Court
Ishwar Singh @ Kamal Singh vs State Of Chhattisgarh on 5 July, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.1219 of 2013
Ishwar Singh @ Kamal Singh S/o Guru Prasad Nishad, aged
about 32 years, R/o Village Kashibahara, P.S.
Baghbahara, Civil and Revenue District Mahasamund (CG)
Appellant
(In Jail)
Versus
State of Chhattisgarh Through P.S. Baghbahara, District
Mahasamund (CG)
Respondent
For Appellant: Mr.Barun Chakrabarty, Advocate
For Respondent/State:Mr.Sunil Otwani, Addl.A.G. with Mr.
Soumya Rai & Mr.Arijit Tiwari, Panel
Lawyers
Hon'ble Shri Justice Sanjay K. Agrawal and
Hon'ble Shri Justice Sanjay S. Agrawal
Judgment on Board
(5.7.2022)
Sanjay K. Agrawal, J.
1. This criminal appeal under Section 374(2) of the CrPC
is directed against the judgment dated 31.10.2013
passed by the Sessions Judge, Mahasamund in Sessions
Trial No.77/2012, whereby the learned Sessions Judge
has convicted the appellant for offence under Section
302 of the IPC and sentenced him to undergo
imprisonment for life and fine of Rs.1000/, in default
of payment of fine to further undergo rigorous
imprisonment for one month.
2. Case of the prosecution, in brief, is that on 8.7.2012
at about 10 p.m. at village Kashibahra, Police Station
Baghbahra, District Mahasamund the appellant caused
death of 5 months old Ku.Soni, daughter of Deoki Bai
(PW12), step motherinlaw and Sukhchand (PW11), step
fatherinlaw and thereby committed the offence. It is
further case of the prosecution that Deoki (PW12) and
her husband Sukhchand (PW11) both have gone to the
house of Ishwar Singh, appellant herein, in order to
sow pulse. On the fateful night of 8.7.2022 at about 10
p.m., all were sleeping in the house of the appellant
herein and their daughter Ku.Soni, aged about 5 months,
was also there, in the night, when Deoki (PW12) awoke
for urination, her daughter Ku.Soni was missing, she
could not be traced out and on the next day, she was
found in small well. Pursuant to the report made by
Sukhchand (PW11), merg being Merg No.54/12 was
registered at Police Chowki Komakhan on 10.7.2012 vide
Ex.P8 and thereafter naksha panchnama was prepared.
Dead body of the deceased was sent for postmortem to
Community Health Center, Bagbahara, where Dr.Lakhanlal
Dhankar (PW5) conducted postmortem vide Ex.P5 and
opined that cause of death was asphyxia due to drowning
and death was homicidal in nature. Thereafter FIR was
registered against unknown person under Section 302 of
the IPC vide Ex.P14. The appellant was taken into
custody vide Ex.P13, his memorandum statement was
taken in presence of Bhagatram (PW1) and Dilip
Chandrakar (PW3) vide Ex.P1 and pursuant to his
memorandum statement, undergarment of the deceased was
seized from the field of Yuvraj Thakur (PW8) vide
Ex.P2. The appellant/accused was made extrajudicial
confession before Bharatram and others villagers that
he has committed mistake and has thrown the body into
small well. Statements of the witnesses were recorded
under Section 161 of the CrPC. After completion of
investigation, chargesheet was filed against the
appellant / accused and it was committed to the
jurisdictional Criminal Court for hearing in accordance
with law for offence under Section 302 of the IPC. The
appellant herein abjured the guilt and entered into
defence.
3. In order to bring home the abovestated offence, the
prosecution examined as many as 15 witnesses and
exhibited 15 documents Exs.P1 to P15, whereas the
accused / appellant has examined none in his defence.
4. The trial Court after appreciating oral and documentary
evidence available on record, by its judgment dated
31.10.2013, convicted the appellant for offence under
Section 302 of the IPC and sentenced him as
aforementioned, against which, this criminal appeal has
been preferred by the appellant / accused.
5. Mr.Barun Chakrabarty, learned counsel for the
appellant, would submit that the learned trial Court is
absolutely unjustified in convicting the appellant for
offence under Section 302 of the IPC as there is no
evidence except socalled extrajudicial confession
allegedly made by the accused to Bhagatram and even
though at the instance of memorandum statement of the
appellant, undergarment of the deceased baby was
seized, but it was seized from open place, therefore,
it is totally irrelevant and on that basis, conviction
cannot be recorded. He would further submit that
conviction cannot be rested on extrajudicial
confession only unless it is supported by other
evidence, which are lacking in the instant case. As
such, conviction without any evidence is unsustainable
and liable to be set aside.
6. On the other hand, Mr.Sunil Otwani, learned Additional
Advocate General appearing for the respondent / State,
would submit that it is the appellant who took out the
custody of the deceased baby aged about 5 months from
Deoki Bai (PW12) and Sukhchand (PW11) for his lust
with Deoki Bai and thrown the body of the deceased baby
into well and as such, the trial Court has rightly
convicted the appellant for offence under Section 302
of the IPC and the appeal deserves to be dismissed.
7. We have heard learned counsel appearing for the
parties, considered their rival submissions made
hereinabove and also went through the records with
utmost circumspection.
8. It is not in dispute that accused Ishwar Singh is son
inlaw of Deoki Bai (PW12) and Sukhchand (PW11) and
deceased Ku.Soni, 5 months old baby, was daughter of
Deoki and Sukhchand. On the fateful night of 8.7.2012,
Ku.Soni was sleeping with Sukhchand and Deoki in the
house of the appellant / accused as Sukhchand (PW11)
and Deoki (PW12) both have gone to the house of their
soninlaw Ishwar Singh, the appellant herein, to sow
pulse. It is case of the prosecution that when in the
night Deoki Bai (PW12) awoke for urination, her
daughter Ku.Soni was missing and on the next day, dead
body of the deceased was informed by school going girl
to Bhagatram (PW1), then he reached to the spot along
with other villagers and seen body of the deceased baby
and reported the matter to the police and thereafter
wheels of investigation started running. Extrajudicial
confession was made by the appellant to Bhagatram
(PW1) that he has committed mistake and has thrown the
body into small well and kept undergarment of the
deceased near the field and pursuant to memorandum
statement (Ex.P1), recovery of undergarment was made
from field of Yuvraj Gond i.e. open place vide Ex.P2.
Yuvraj Thakur (PW8), witness of memorandum and
seizure, has clearly admitted that dead body was
recovered from well and undergarment of the deceased
was also recovered from open place. Dilip Chandrakar
(PW3), who is also witness of memorandum and seizure,
in para5 has clearly stated that undergarment of the
deceased baby was recovered from the field of Yuvraj
Gond i.e. from open place and accessible to all.
9. The question for consideration would be, whether
recovery so made from open place pursuant to memorandum
statement of the accused is admissible and it can be
used against him.
10. At this stage, it would be appropriate to notice
Section 27 of the Evidence Act, which states as under:
"27. How much of information received from
accused may be proved.--Provided that, when any
fact is deposed to as discovered in consequence
of information received from a person accused
of any offence, in the custody of a police
officer, so much of such information, whether
it amounts to a confession or not, as relates
distinctly to the fact thereby discovered, may
be proved."
11. The aforesaid provision is founded on the principle
that if the confession of the accused is supported by
the discovery of a fact, the confession may be presumed
to be true, and not to have been extracted. It comes
into operation only:
(i) if and when certain facts are deposed to as
discovered in consequence of information received from
an accused person in police custody and
(ii) if the information relates distinctly to the fact
discovered.
Under this section, (a) there must be information; (b)
it does not matter whether the information amounts to
confession or not; (c) that person must be in the
custody of a police officer; (d) in consequence of the
information a fact must be deposed to as discovered and
(e) in such a case so much of the information as
relates distinctly to the fact thereby discovered may
be proved.
12. The Supreme Court in the matter of Trimbak v. The State
of Madhya Pradesh1 has held in that case that when the
field from which the ornaments were recovered was an
open one, and accessible to all and sundry, it is
difficult to hold positively that the accused was in
possession of these articles. The fact of recovery by
the accused is compatible with the circumstance of
somebody else having placed the articles there and of
the accused somehow acquiring knowledge about their
whereabouts and that being so, the fact of discovery
cannot be regarded as conclusive proof that the accused
was in possession of these articles.
13. Reverting to the facts of the present case in the light
of principle of law flowing from Section 27 of the
Evidence Act and principle of law laid down by the
Supreme Court in the abovestated judgment (supra), it
is quite vivid that in the instant case, undergarment
of the deceased was recovered from the field of Yuvraj
Thakur (PW8), which was open place visible and
accessible to others and this fact has already been
admitted by witnesses of memorandum and seizure i.e.
Bhagatram (PW1) and Dilip Chandrakar (PW3). As
such, recovery of undergarment of the deceased baby is
totally inadmissible in evidence as it has been
recovered from open or accessible to others. Therefore,
recovery of undergarment pursuant to disclosure
statement of the accused / appellant is not admissible
1 AIR 1954 SC 39
in evidence and as such, it is of no help to the
prosecution / State.
14. The next piece of evidence that has been putforth by
the prosecution is extrajudicial confession, which has
allegedly made by the accused / appellant to Bhagatram
(PW1) that he has committed mistake and thrown body of
Ku.Soni in small well.
15. At this stage, it would be appropriate to notice
relevant judgments qua extrajudicial confession. The
Supreme Court in the matter of C.K.Raveendran v. State
of Kerala2 has held that it is difficult to rely upon
the extra judicial confession as the exact words or
even the words as nearly as possible have not been
reproduced. Such statement cannot be said to be
voluntary so the extra judicial confession has to be
excluded from the purview of consideration for bring
home the charge.
16. In the matter of Balwinder Singh v. State of Punjab3 the
Supreme Court has held that an extrajudicial 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 extrajudicial confession is
surrounded by suspicious circumstances, its credibility
becomes doubtful and it loses its importance. The
courts generally look for independent reliable
corroboration before placing any reliance upon an
2 AIR 2000 SC 369
3 (1995) Supp (4) SCC 259
extrajudicial confession.
17. In the matter of Sakharam Shankar Bansode v. State of
Maharashtra4 the Supreme Court has held that a retracted
extrajudicial confession, though a piece of evidence
on which reliance can be placed, but the same has to be
corroborated by independent evidence
18. Thus, it is quite clear that extrajudicial confession
is a weak piece of evidence as it is not supported by
other circumstantial evidence against the appellant.
According to opinion of Dr.Lakhanlal Dhankar (PW5),
cause of death was asphyxia due to drowning and death
was homicidal in nature.
19. Finally, reverting to the facts of the present case in
the light of aforesaid discussion, it is quite vivid
that pursuant to memorandum statement of the appellant/
accused (Ex.P1), recovery of undergarment of the
deceased baby was made from open place and accessible
to others, as such, it is inadmissible in evidence in
the light judgment of the Supreme court noticed
hereinabove and furthermore, extrajudicial confession
is a weak piece of evidence and unless it is supported
by other incriminating evidence, conviction of the
accused cannot be rested upon extrajudicial confession
in the light of judgments of the Supreme Court in
Balwinder Singh (supra) as it has not been corroborated
by other independent evidence and as such, the
prosecution has failed to prove the offence under
4 AIR 1994 SC 1594
Section 302 of the IPC beyond reasonable doubt.
20. On the basis of aforesaid analysis, we are of the
considered opinion that the prosecution has failed to
bring home the offence under Section 302 of the IPC
against the appellant beyond reasonable doubt and
learned trial Court has convicted the appellant for
offence under Section 302 of the IPC by recording the
finding which is wholly perverse to record.
21. Consequently, the criminal appeal is allowed. Impugned
judgment dated 31.10.2013 passed by the Sessions Judge,
Mahasamund in Sessions Trial No.77/2012 convicting and
sentencing the appellant for the offence under Section
302 of the IPC are hereby set aside. The accused /
appellant is acquitted of the charge under Section 302
of the IPC levelled against him. He is in jail. He be
released forthwith, if not required in any other case.
Sd/ Sd/
(Sanjay K. Agrawal) (Sanjay S. Agrawal)
Judge Judge
B/
