Chattisgarh High Court
Sahaniram And Anr vs State Of Chhattisgarh on 13 July, 2022
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
Page 1 of 38
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.1202 of 2014
{Arising out of judgment dated 7-11-2014 in Sessions Trial No.80/2013 of
the 1st Additional Sessions Judge, Sakti, District Janjgir-Champa}
1. Jamuna Bai, W/o Narendra Jaiswal, aged about 36 years, R/o Ward
No.12, Village Sakti, P.S. & Tahasil Sakti, District Janjgir-Champa
(C.G.)
2. Shyam Sunder, S/o Ramcharan Jaiswal, aged about 33 years, R/o
Village Ghoghari, P.S. Dabhara, Distt. Janjgir-Champa (C.G.)
(In Jail)
---- Appellants
Versus
State of Chhattisgarh, Through Station House Officer, Sakti, Distt.
Janjgir-Champa (C.G.)
---- Respondent
Criminal Appeal No.1160 of 2014
Surendra Kumar, S/o Ramcharan Jaiswal, aged about 31 years, R/o
Village Ghoghari, P.S. Dabhara, Distt. Janjgir-Champa (C.G.)
---- Appellant
Versus
State of Chhattisgarh, Through Station House Officer, Sakti, Distt.
Janjgir-Champa (C.G.)
---- Respondent
AND
Criminal Appeal No.1143 of 2014
1. Sahaniram, S/o Puniram Jaiswal, aged about 43 years,
2. Dadhibal, S/o Puniram Jaiswal, aged about 40 years,
Both are R/o Village Mahuapali, P.S. Sarangarh, Distt. Raigarh (C.G.)
---- Appellants
Versus
State of Chhattisgarh, Through Station House Officer, Sakti, Distt.
Janjgir-Champa (C.G.)
---- Respondent
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
Page 2 of 38
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For Appellants: Mr. Surendra Singh, Senior Advocate with Mr. Neeraj
Mehta, Advocate.
For State / Respondent: -
Mr. Ashish Tiwari, Government Advocate.
------------------------------------------------------------------------------------------------------
Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Shri Sanjay S. Agrawal, JJ.
Judgment On Board
(13/07/2022)
Sanjay K. Agrawal, J.
1. Two appellants namely, Jamuna Bai (A-1) & Shyam Sunder (A-2) in
Cr.A.No.1202/2014; sole appellant namely, Surendra Kumar (A-3) in
Cr.A.No.1160/2014; and two appellants namely, Sahaniram (A-4) &
Dadhibal (A-5) in Cr.A.No.1143/2014, have preferred these appeals
under Section 374(2) of the CrPC feeling aggrieved and dissatisfied
with the impugned judgment dated 7-11-2014 passed by the 1st
Additional Sessions Judge, Sakti, District Janjgir-Champa in Sessions
Trial No.80/2013, by which the learned Additional Sessions Judge has
convicted and sentenced the appellants in the following manner: -
Conviction Sentence
Section 120B of the IPC Imprisonment for life and fine of ₹ 20,000/-
each, in default, additional RI for two years
Section 460 of the IPC RI for ten years and fine of ₹ 20,000/-
each, in default, additional RI for two years
Section 302 read with Imprisonment for life and fine of ₹ 20,000/-
Section 34 of the IPC each, in default, additional RI for two years
(two counts)
2. Since all the three criminal appeals have arisen out of one and same
judgment dated 7-11-2014 passed by the 1st Additional Sessions
Judge, Sakti, District Janjgir-Champa, in one Sessions Trial
No.80/2013 and since common question of fact and law is involved in
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
all the three appeals, they have been clubbed together, heard together
and are being disposed of by this common judgment.
3. It is admitted fact on record that Sushil Chand Jaiswal had two
daughters namely, Jamuna Bai - the accused / appellant (A-1) and
Namrata Jaiswal - deceased. Jamuna Bai was married to Narendra
Kumar (PW-7) and Namrata was married to Shyam Kumar - another
deceased. The family of Jamuna Bai was staying in the house owned
by Sushil Chand Jaiswal at Sakti in ground floor and Namrata Jaiswal
along with her husband Shyam Kumar on the fateful day was residing
in second floor along with her family. It is the case of the prosecution
that Jamuna Bai wanted to grab the entire property in which her sister
Namrata Jaiswal along with her husband were staying. Revenue
proceedings Exs.P-30 to P-44 were initiated by Namrata Jaiswal
against Narendra Kumar (PW-7) - husband of Jamuna Bai before the
revenue court (Tahsildar, Kharsia and Tahsildar, Sakti) for partition,
etc.. It is the further case of the prosecution that Jamuna Bai (A-1)
also lodged complaint before Police Station Kharsia against the
deceased persons vide Ex.P-20 and in light of that complaint,
statements were recorded vide Exs.P-21 to P-24. Further case of the
prosecution, in brief, is that on 10-4-2013, in the morning, one Onkar
Prasad Jaiswal (neither cited nor examined) informed Shivkumar (PW-
6) - brother of deceased Shyam Kumar about the incident, thereafter,
Shivkumar (PW-6) came to Sakti in the house of Namrata Jaiswal &
Shyam Kumar and noticed that throat of both Namrata & Shyam
Kumar was cut and they were lying dead on bed and blood spread all
over the floor. Thereafter, Shivkumar (PW-6) lodged first information
report Ex.P-15 at Police Station Sakti on 10-4-2013 against unknown
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
person and on the same day, morgue intimations were got registered
by Shivkumar (PW-6). Morgue intimation Ex.P-16 was registered for
death of Shyam Kumar, whereas morgue intimation Ex.P-17 was
registered for death of Namrata Jaiswal and thereafter, two separate
inquest reports were prepared i.e. Ex.P-3 in respect of Smt. Namrata
Jaiswal and Ex.P-4 in respect of Shyam Kumar. Thereafter, dead
bodies of both the deceased persons were sent for postmortem
examination to Community Health Centre, Sakti where Dr. Krishna
Kumar Sidar (PW-10) conducted postmortem over the dead bodies of
Shyam Kumar and Smt. Namrata Jaiswal vide Exs.P-27 & P-28,
respectively. After examining the nature of injuries and wounds, it was
opined by the doctor that cause of death in both the cases was cardio
respiratory arrest associated with asphyxia by obstruction of airway
passage and massive blood loss and the nature of death was
homicidal done by solid heavy metal and sharp-edged weapon.
Shyam Sunder (A-2) was taken into custody on 11-4-2013 and his
memorandum statement was recorded vide Ex.P-8 in presence of
Tankeshwar Jaiswal (PW-2) pursuant to which chopper - sharp-edged
weapon, shirt, full pant and motorcycle were seized vide Ex.P-9 on 12-
4-2013. Thereafter, on 12-4-2013, memorandum statement of
Jamuna Jaiswal (A-1) was recorded as Ex.P-10 and pursuant to her
memorandum statement, her bloodstained petticoat and curtain were
seized vide Ex.P-11. Apart from other usual investigation, on 20-5-
2013 articles seized were sent for forensic examination vide Ex.P-58
and the FSL report dated 30-4-2014 has been brought on record as
Ex.P-60 in which in reference to seized articles, human blood of
Group 'A' was found on petticoat of Jamuna Jaiswal (Art. 'C'), chopper
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
seized from accused Shyam Sunder Jaiswal (Art. 'E') and vest of
deceased Shyam Kumar (Art. 'H1'), and human blood was also found
on Articles A, G1 and G3. On 13-5-2014, the FSL report as obtained
from the Forensic Science Laboratory was sent to the District
Prosecution Officer for production before the learned trial Court.
4. The investigating officer after completion of investigation, charge-
sheeted the two appellants namely, Jamuna Bai (A-1) & Shyam
Sunder (A-2) and other three appellants namely, Surendra Kumar (A-
3), Sahaniram (A-4) & Dadhibal (A-5) before the jurisdictional criminal
court from where the case was committed to the court of sessions for
hearing and disposal in accordance with law.
5. The prosecution, in order to bring home the offence, has examined as
many as 13 witnesses and exhibited 60 documents Exs.P-1 to P-60.
The appellants / accused persons abjured the guilt and entered into
defence by stating that they have not committed the offence and they
have been falsely implicated. They have examined two witnesses
namely, Firulal (DW-1) and Dr. P. Singh (DW-2) in support of their
defence and also exhibited two documents Exs.D-1 & D-2 - statement
of Shivkumar Jaiswal and MLC report of Shyam Sunder Jaiswal (A-2),
respectively.
6. The trial Court after appreciating ocular, oral and documentary
evidence on record, convicted and sentenced the appellants in the
manner mentioned in the opening paragraph of this judgment against
which these appeals have been preferred.
7. The trial Court has merely found following circumstances proved
against appellants Jamuna Bai (A-1) and Shyam Sunder (A-2): -
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
1. Motive for the offence is proved pursuant to documents Exs.P-
30 to P-44 - revenue proceedings initiated by Namrata Jaiswal
against Narendra Kumar Jaiswal (PW-7) - husband of Jamuna
Bai and furthermore, Nandkishore Tamboli (PW-1), Vijay
Bahadur (PW-5), Shivkumar (PW-6) and Narendra Kumar (PW-
7) have proved motive for the offence against these two
appellants.
2. Pursuant to the memorandum statements of Jamuna Bai (A-1)
and Shyam Sunder (A-2) - Exs.P-8 & P-10, material objects
have been recovered vide Exs.P-9 & P-11, respectively, and
same were sent for forensic examination from where FSL report
Ex.P-60 has been received according to which human blood of
Group 'A' was found on petticoat (Art. 'C') of Jamuna Bai,
chopper (Art. 'E') seized from Shyam Sunder and vest (Art. 'H1')
of deceased Shyam Kumar which connects the present two
appellants with the offence in question.
8. Against appellants Surendra Kumar (A-3), Sahaniram (A-4) &
Dadhibal (A-5), the trial Court has held that by virtue of Section 30 of
the Indian Evidence Act, 1872, the confessional statements made by
accused Jamuna Bai & Shyam Sunder Exs.P-8 & P-10 are admissible
in evidence, though it is a corroborative piece of evidence, yet they
are guilty of offence under Sections 302 read with Section 34, 460 and
120B of the IPC and the trial Court has convicted them accordingly.
Submissions of learned counsel for the parties: -
9. Mr. Surendra Singh, learned Senior Counsel appearing on behalf of
appellants - Jamuna Bai & Shyam Sunder in Cr.A.No.1202/2014,
submits as under: -
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
1. Motive of the appellants for committing the offence in question
has not been established satisfactorily, at the most, motive can
be said to be a strong suspicion, but it cannot be made basis for
conviction of the appellants for the offence in question.
Reference has been made upon the decisions of the Supreme
Court in the matters of Sampath Kumar v. Inspector of Police,
Krishnagiri1 and Sunil Rai alias Paua and others v. Union
Territory, Chandigarh2.
2. The confessional statement made by appellant Shyam Sunder
vide Ex.P-8 and the confessional statement made by Jamuna
Bai vide Ex.P-10 were not truthful and voluntary as the same
have been caused by inducement, threat or promise and
therefore the said confessions made by accused persons are
irrelevant in a criminal proceeding. Appellant Shyam Sunder in
his statement recorded under Section 313 of the CrPC, in
paragraph 63, has clearly stated that the investigating officer
has assaulted him and beaten him by wooden stick by which he
became unconscious and he was also taken to hospital at
Janjgir. As such, the confessional statement, particularly of
Shyam Sunder is hit by Section 24 of the Evidence Act read
with Article 20(3) of the Constitution of India. Confessional
statement of accused can be used in view of Section 27 of the
Evidence Act qua the fact discovered, but also the place from
where it is produced and knowledge of the accused to this.
Reliance has been placed upon the decisions of the Supreme
Court in the matters of Asar Mohammad and others v. State of
1 AIR 2012 SC 1249
2 AIR 2011 SC 2545
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
U.P.3 and Ashish Jain v. Makrand Singh and others4.
3. The seized articles which were sent to the Forensic Science
Laboratory for forensic examination were never produced
before the court particularly, petticoat of Jamuna Bai, sharp-
edged weapon and others which have been marked as articles,
therefore, it cannot be said that the articles which were seized
from two accused Jamuna Bai & Shyam Sunder are the very
articles which were subjected to forensic examination and as
such, the authenticity of the FSL report is doubtful and it cannot
be relied upon to connect the appellants with the offence in
question.
4. Though on Articles C, E & H1, human blood was found and
blood group has been ascertained as Group 'A', but merely
because, blood group of the deceased and the blood found on
petticoat, chopper and vest are matching, the appellants cannot
be convicted and it does not prove the culpability of the accused
persons. Reliance has been placed upon the decisions of the
Supreme Court in the matters of Debapriya Pal v. State of Best
Bengal5 and Sonvir alias Somvir v. State of NCT of Delhi6.
5. Appellants Jamuna Bai & Shyam Sunder were not seen partly
before the incident and partly after the incident near the place
where Namrata Jaiswal and Shyam Kumar were residing and
they were murdered therefore the appellants cannot be
connected with the offence in question. Reference has been
made upon the judgments of the Supreme Court in the matters
3 AIR 2018 SC 5264
4 AIR 2019 SC 546
5 AIR 2017 SC 1246
6 AIR 2018 SC 3131
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
of Prem Singh v. State of Punjab7 and State of Rajasthan v.
Ramanand8 and consequently, the judgment of conviction and
order of sentence are liable to be set aside.
10. Mr. Surendra Singh, learned Senior Counsel, however, would submit
on behalf of appellant - Surendra Kumar (A-3) in Cr.A.No.1160/2014
and appellants - Sahaniram (A-4) & Dadhibal (A-5) in Cr.A.
No.1143/2014, that these appellants have been convicted by the trial
Court merely on the basis of confessional statements of Shyam
Sunder Ex.P-8 and Jamuna Bai Ex.P-10 in light of Section 30 of the
Indian Evidence Act, 1872. He would further submit that the
confessional statement of co-accused by virtue of Section 30 of the
Evidence Act is a very weak piece of evidence and it can only be a
corroborative piece of evidence if there is already on record other
material to connect the appellants with the offence in question, which
is lacking in the present case and which is apparent from the finding
recorded by the trial Court in paragraphs 41 & 66, therefore, merely
on the basis of confessional statements, conviction cannot be
maintained in view of the decision of the Supreme Court in the matter
of Haricharan Kurmi v. State of Bihar 9 followed by the Supreme Court
in the matter of Dipakbhai Jagdishchandra Patel v. State of Gujarat
and another10. As such, the judgment of conviction recorded and
order of sentence awarded in respect of the present appellants are
also liable to be set aside.
11. Opposing the submissions advanced on behalf of the appellants, Mr.
Ashish Tiwari, learned State counsel, would submit qua appellants
7 AIR 1997 SC 221
8 AIR 2017 SC 2100
9 AIR 1964 SC 1184
10 AIR 2019 SC 3363
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
Jamuna Bai & Shyam Sunder in Cr.A.No.1202/2014, as under: -
1. On account of old land dispute which has been proved by
documents Exs.P-30 to P-44 which are documents relating to
revenue partition proceedings filed by Shyam Kumar / Namrata
Jaiswal against Narendra Kumar (PW-7) - husband of Jamuna
Bai and which are duly proved by examination of Atul Shete
(PW-11) - Tahsildar, Kharsia and Anupam Tiwari (PW-12) -
Tahsildar, Sakti, the appellants have strong motive to commit
the offence and they have committed the offence. Both these
official witnesses have proved the existence of property dispute
between Namrata Jaiswal and Narendra Kumar - husband of
accused Jamuna Bai (A-1). Order sheets Exs.P-30, P-35 & P-
40 would demonstrate the pending land dispute between them.
Furthermore, statements of Nandkishore Tamboli (PW-1), Vijay
Bahadur (PW-5), Shivkumar (PW-6) and Narendra Kumar (PW-
7) - husband of accused Jamuna Bai, overwhelmingly establish
that there is strong motive for commission of offence of murder
of Namrata Jaiswal and her husband Shyam Kumar by the
appellants and in that regard, reliance has been placed upon
the decision of the Supreme Court in the matter of Ujjagar Singh
v. State of Punjab11.
2. Appellant Jamuna Bai had also lodged a complaint on 19-3-
2013 at Police Station Kharsia against Shyam Kumar vide Ex.P-
20 and in light of the said complaint, statements Exs.P-21 to P-
24 have been recorded by Silmani Toppo (PW-8) which goes to
show that complaint was regarding land dispute. As such,
11 (2007) 13 SCC 90
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
argument in this regard that motive for offence has not been
established by the prosecution deserves to be rejected.
3. Confessional statements of Shyam Sunder & Jamuna Bai
Exs.P-8 & P-10 were voluntary and truthful pursuant to which
recovery of material objects has rightly been made vide Exs.P-9
& P-11 and same were sent for forensic examination. Replying
to the submission that statement was induced by pressure and
threat and therefore it is not admissible in evidence, he would
submit that memorandum statement of Shyam Sunder was
recorded on 11-4-2013 and thereafter, on 12-4-2013, he was
medically examined by Dr. P. Singh (DW-2) who has recorded
in the MLC report Ex.D-2C and has also clearly stated before
the Court that no external injury was found over the body of
Shyam Sunder and he was hale and healthy, physically and
mentally as well. Aforesaid facts have also been proved by
investigating officer S.B. Singh Rana (PW-13), who has refuted
the fact that appellant Shyam Sunder (A-2) was subjected to
any sort of pressure or he was physically assaulted, except the
fact that he was referred to hospital at Janjgir for pain in chest.
As such, the confessional statement is strictly in accordance
with law.
4. In the FSL report Ex.P-60, it has been reported that human
blood of Group 'A' was found on the seized articles i.e. petticoat
of Jamuna Bai (Art. 'C'), iron chopper recovered from accused
Shyam Sunder (Art. 'E') and vest of deceased Shyam Kumar
(Art. 'H1'). In support of his contention, he would rely upon the
decision of the Supreme Court in the matter of Balwan Singh v.
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
State of Chhattisgarh and another12 and referring to paragraphs
22 & 23 of the report, he would submit that in the instant case,
recovery of bloodstained articles have been proved beyond
doubt by Tankeshwar Jaiswal (PW-2), even if it is not the case
of the prosecution that the investigation in question any way is
not tainted, merely on the basis of assumption that in India,
population is more and there would be more people of Group A
blood, the appellants cannot escape of their culpability for
committing the offence in question.
5. Case of the prosecution is based on circumstantial evidence, it
is not the case based on the theory of last seen together,
therefore, the decisions relied upon by learned Senior Counsel
in Prem Singh (supra) and Ramanand's case (supra) is of no
help to the appellants. Even otherwise, Jamuna Bai - one of
the accused, was staying in the same premises on ground floor,
the accused persons have assembled together in the previous
night of the offence and thereafter the offence is said to have
been committed. As such, the appeal of Jamuna Bai and
Shyam Sunder deserves to be dismissed.
6. In respect of production of articles before the Court which were
sent to the FSL, though argued, but the appellants have not laid
any foundation before the trial Court by subjecting the
investigating officer to any cross-examination and therefore they
cannot be permitted to make out any case before the appellate
court for which they have not laid any foundation before the trial
Court at that stage as such, the appeal deserves to be
12 (2019) 7 SCC 781
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
dismissed. Reliance has been placed upon the decision of the
Supreme Court in the matter of Lakshmi and others v. State of
U.P.13.
12. Mr. Ashish Tiwari, learned State counsel, however, would further
submit qua appellants Surendra Kumar (A-3) in Cr.A.No.1160/2014
and appellants Sahaniram (A-4) & Dadhibal (A-5) in Cr.A.
No.1143/2014 that conviction of the appellants by the trial Court only
on the basis of confessional statements made by Jamuna Bai (A-1)
and Shyam Sunder (A-2) vide Exs.P-8 & P-10 is strictly in accordance
with law since motive and seizure of articles have also been proved,
therefore, the present appellants have rightly been convicted and their
appeals also deserve to be dismissed.
13. We have heard learned counsel for the parties and considered their
rival submissions made herein-above and also went through the
record with utmost circumspection.
14. The first question for consideration would be, whether the death of two
deceased persons namely, Namrata Jaiswal and Shyam Kumar was
homicidal in nature?
15. The trial Court after relying upon the postmortem reports Ex.P-27 of
Shyam Kumar and Ex.P-28 of Namrata Jaiswal which have been
proved by Dr. Krishna Kumar Sidar (PW-10) came to the conclusion
that the death of Shyam Kumar and Namrata Jaiswal was homicidal in
nature, as the doctor has opined that cause of death was cardio
respiratory arrest associated with asphyxia by obstruction of airway
passage and massive blood loss and death was homicidal in nature.
After considering the postmortem reports Exs.P-27 & P-28 of the two
13 (2002) 7 SCC 198
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
deceased persons and considering the injuries suffered by them and
also considering the cause of death and finding of the trial Court, we
are of the opinion that the trial Court is absolutely justified in holding
that nature of death of the two deceased persons was homicidal and
we hereby affirm the said finding recorded by the trial Court.
Cr.A.1202/2014 preferred by Jamuna Bai and Shyam Sunder and
submissions made on behalf of both the sides: -
Motive of the offence: -
16. The trial Court relied upon the documents Exs.P-30 to P-44 relating to
revenue proceedings initiated by Namrata Jaiswal against the
husband of Jamuna Bai namely, Narendra Kumar (PW-7) / Jamuna
Bai and finding that those documents have been proved by Atul Shete
(PW-11) & Anupam Tiwari (PW-12) and further relying upon the
statements of Nandkishore Tamboli (PW-1), Vijay Bahadur (PW-5),
Shivkumar (PW-6) & Narendra Kumar (PW-7), came to the conclusion
that strong motive for commission of offence is proved, as Namrata
Jaiswal and her husband both were staying on second floor of the
house, whereas Jamuna Bai along with her husband and children
were staying on ground floor, therefore, Namrata Jaiswal initiated
various revenue proceedings Exs.P-30 to P-44 demanding her share
in the property which is being denied by Jamuna Bai and as such
there is strong motive for commission of the offence in question which
has seriously been questioned by learned counsel for the appellants.
17. Section 8 of the Evidence Act provides that any fact is relevant which
shows or constitutes a motive or preparation for any fact in issue or
relevant fact.
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
18. In the matter of Wakkar v. State of Uttar Pradesh14, it has been held by
their Lordships of the Supreme Court that in a case which is based on
circumstantial evidence, motive for committing the crime on the part of
the accused assumes importance. In Sampath Kumar (supra), it has
been held by the Supreme Court that motive may be an important
circumstance in a case based on circumstantial evidence but cannot
take the place of conclusive proof. The Supreme Court in Sunil Rai
alias Paua (supra) has held that motive, however, cannot be basis for
conviction of the offence. In the instant case, motive for the offence in
question has been proved by the prosecution in view of the finding
recorded herein-below, therefore, the two decisions cited on behalf of
the appellants namely, Sampath Kumar (supra) and Sunil Rai alias
Paua (supra), nowhere help the appellants.
19. In order to consider the plea raised at the Bar, it would be appropriate
to notice Exs.P-30 to P-44 which are documents exhibited by the trial
Court and the description of which are as under: -
S.No. Particulars of documents Exhibit Page number of
the paper book
1. Revenue order sheets of the Court of P-30 143-148
Tahsildar, Kharsia (Namrata v.
Narendra)
2. Application under Section 178 of the P-31 149-150
Chhattisgarh Land Revenue Code
Kharsia
4. Objection as to maintainability of the P-33 152
case filed by non-applicant Narendra
Kumar
maintainability of the case filed by
applicant Namrata Jaiswal
6. Revenue order sheets of the Court of P-35 154-161
Tahsildar, Kharsia (Namrata v.
Narendra)
14 (2011) 3 SCC 306
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
7. Application under Section 178 of the P-36 162-163
Chhattisgarh Land Revenue Code
Kharsia
9. Objection as to maintainability of the P-38 165
case filed by non-applicant Narendra
Kumar
maintainability of the case filed by
applicant Namrata Jaiswal
11. Revenue order sheets of the Court of P-40 167-171
Tahsildar, Sakti
12. Application under Section 178 of the P-41 172-178
Chhattisgarh Land Revenue Code
with affidavit
13. Form B-1 issued by the Tahsildar, P-42 179-181
Sakti to 44
20. Atul Shete - the then Tahsildar, Kharsia has been examined as PW-
11. He has clearly stated before the Court that during his posting as
Tahsildar at Tahsil Kharsia, Namrata Jaiswal has filed a proceeding
under Section 178 of the Chhattisgarh Land Revenue Code for
partition of land which has been registered as Revenue Case No.19/
A-27/Year 2011-12 and Revenue Case No.18/A-27/Year 2011-12 and
which was pending. The said documents, objections, replies, order
sheets etc. are Exs.P-30 to P-34 and other documents are Exs.P-35
to P-39. Similarly, Anupam Tiwari - the then Tahsildar, Sakti has
been examined as PW-12. He has stated that during his posting at
Sakti, Namrata Jaiswal has filed a case for partition of land against
Narendra Kumar Jaiswal which has been registered as Revenue Case
No.11A-27/2012-13 and documents relating to the said case are
Exs.P-40 to P-44. As such, institution of revenue proceedings under
Section 178 of the Land Revenue Code for partition of agricultural
land against Narendra Kumar - husband of Jamuna Bai, is duly
established and all the such cases were pending on the date of
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
offence in question. Similarly, Nandkishore Tamboli (PW-1) and Vijay
Bahadur (PW-5) have also stated that there was land dispute between
Namrata Jaiswal and Narendra Jaiswal. Shivkumar (PW-6), who is
elder brother of deceased Shyam Kumar, has also stated that land
dispute was going on between Namrata Jaiswal and Narendra Kumar.
Similar statement has been made by Narendra Kumar (PW-7).
Though he has been declared hostile, but he has admitted that land
dispute was going on between him and deceased Namrata Jaiswal.
Not only this, Jamuna Bai had lodged a complaint on 19-3-2013 at
Police Station Kharsia against Shyam Kumar vide Ex.P-20 and in light
of the said complaint, statements Exs.P-21 to P-24 have been
recorded which is proved by Silmani Toppo (PW-8) and which goes to
show that complaint was lodged regarding land dispute by Jamuna
Bai. As such, motive is established.
Confessional / disclosure statements of Shyam Sunder (A-2) and
Jamuna Bai (A-1): -
21. It has been contended on behalf of the appellants that the
confessional statements of Shyam Sunder (A-2) and Jamuna Bai (A-
1) are not voluntary and truthful, therefore, they are not reliable and
same have been caused by inducement, threat / pressure or promise,
as such, they are hit by Section 24 of the Indian Evidence Act and
also by Article 20(3) of the Constitution of India. Reliance has been
placed upon the statement of accused Shyam Sunder (A-2) recorded
under Section 313 of the CrPC, who while answering question No.63
has made following statement: -
63- आपको और कुछ कहना है?
उत्तर- मुझे ददनााक 11/4/13 काे शाम को लगभग 4-5 बजे पुललि वाले
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
िक्ती थाना ला े थे ।या तथाथा थाना मे पुललि वाले मेरे पेट शटर दनकलवा े
थे ।या तथाथा मेरे िाथ बहुतथा मारपीट दक े थे।या जजििे मेरे पुरे शरीर मे
िुजन आ ग ा था ।या डाडा िे मारने के कारण मेरे बा े पैर की एडी मे
चोट लगा था ।या खून दनकल रहा था ।या जजिे देखकर मै बेहोश हो ग ा
था ।या जब रातथा को 4:00 बजे होश आ ा तथाो मै असपतथााल मे था ।या दि ु रे
ददन मै चल दफंर नही पा रहा था ।या तथाब मुझे ह पतथाा चला था दक मै
जााजगीर असपतथााल मे हूँ ।या ददनााक 12/4/13 को 3 ा 3.30 बजे
िक्ती थाना ला े थे ।या उि िम मै असपतथााल का चादर पहना था उिी
हालतथा मे न ा ाल मे पेश दक ा था ।या दफंर हमे जेल भेज दद ा ग ा ।या
जेल मे भी इलाज चला था ।या वहाँ िे असपतथााल इलाज हेतथाु भेजे थे ।या
मुझे झुठा फंािा ा ग ा है।या
22. Relying upon the above-quoted statement of accused Shyam Sunder
it has been contended that he was beaten / pressurized by the police
on 11-4-2013 pursuant to which he made disclosure statement and
recovery was made pursuant to the disclosure statement, on 12-4-
2013 at 3.30 p.m.. In order to prove the aforesaid fact, the defence
has examined Dr. P. Singh, who was at that time Medical Officer of
Primary Health Centre, Kurda and In-charge Block Medical Officer,
Sakti, as DW-2. He has clearly stated before the Court that on 12-4-
2013 at 4 p.m., Shyam Sunder was brought to the hospital and he
was medically examined. He has further stated that he did not found
any external injury on his body, he was hale and healthy, mentally and
physically as well, and his report is Ex.D-2C. Furthermore, on this
point, S.B. Singh Rana (PW-13) - investigating officer was also cross-
examined and in paragraph 23, he has clearly refuted the suggestion
that the accused was assaulted by the police from 10 a.m. to 8 p.m.
on 11-4-2013. In paragraph 25, it has been clarified by the
investigating officer (PW-13) that since the accused was complaining
of pain in chest, he was taken to the Janjgir District Hospital. He has
also refuted that the appellant - Shyam Sunder was subjected to
assault or marpit by the official staff. As such, the argument that the
confessional statement / disclosure statement so made pursuant to
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
pressure, inducement or threat given to the accused on behalf of the
respondent State is not established on record.
23. At this stage, it would be appropriate to notice Section 27 of the Indian
Evidence Act, 1872, 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."
Object 1
24. The Supreme Court in the matter of Mani v. State of Tamil Nadu15,
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
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."
25. As such, it appears that Section 27 of the Evidence Act is applicable
15 (2009) 17 SCC 273
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
only if the confessional statement relates distinctly to the fact thereby
discovered.
26. The Supreme Court in Asar Mohammad (supra) with reference to the
word "fact" employed in Section 27 of the Evidence Act has held that
the facts need not be self-probatory and the word "fact" as
contemplated in Section 27 of the Evidence Act is not limited to
"actual physical material object". It has been further held that the
discovery of fact arises by reason of the fact that the information given
by the accused exhibited the knowledge or the mental awareness of
the informant as to its existence at a particular place and it includes a
discovery of an object, the place from which it is produced and the
knowledge of the accused as to its existence. Their Lordships relying
upon the decision of the Privy Council in the matter of Pulukuri
Kotayya v. King Emperor16 observed as under: -
"13. It is a settled legal position that the facts need not be
self-probatory and the word "fact" as contemplated in
Section 27 of the Evidence Act is not limited to "actual
physical material object". The discovery of fact arises by
reason of the fact that the information given by the accused
exhibited the knowledge or the mental awareness of the
informant as to its existence at a particular place. It
includes a discovery of an object, the place from which it is
produced and the knowledge of the accused as to its
existence. It will be useful to advert to the exposition in the
case of Vasanta Sampat Dupare v. State of Maharashtra17,
in particular, paragraphs 23 to 29 thereof. The same read
thus:
"23. While accepting or rejecting the factors of
discovery, certain principles are to be kept in mind.
The Privy Council in Pulukuri Kotayya v. King Emperor
(supra) has held thus: (IA p. 77)
"... it is fallacious to treat the 'fact discovered' within
the section as equivalent to the object produced;
16 AIR 1947 PC 67
17 (2015) 1 SCC 253
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
the fact discovered embraces the place from which
the object is produced and the knowledge of the
accused as to this, and the information given must
relate distinctly to this fact. Information as to past
user, or the past history, of the object produced is
not related to its discovery in the setting in which it
is discovered. Information supplied by a person in
custody that 'I will produce a knife concealed in the
roof of my house' does not lead to the discovery of
a knife; knives were discovered many years ago. It
leads to the discovery of the fact that a knife is
concealed in the house of the informant to his
knowledge, and if the knife is proved to have been
used in the commission of the offence, the fact
discovered is very relevant. But if to the statement
the words be added 'with which I stabbed A', these
words are inadmissible since they do not relate to
the discovery of the knife in the house of the
informant.
xxx xxx xxx
xxx xxx xxx
xxx xxx xxx"
27. Furthermore, in Ashish Jain (supra), the Supreme Court has
considered the issue and held that if recovery of incriminating material
is not voluntary and caused by inducement, pressure or coercion,
evidentiary value of such statement leading to recovery, is nullified
and relying upon its earlier decision in the matter of Selvi v. State of
Karnataka18, observed as under: -
"21. As regards the recovery of incriminating material at
the instance of the accused, the Investigating Officer K.D.
Sonakiya, PW35, has categorically deposed that all the
confessions by the accused persons were made after
interrogation, but the mode of this interrogation does not
appear to be of normal character, inasmuch as he himself
has deposed that the accused persons were further grilled
and interrogated multiple times before extracting the
confessions which lead to the recovery of the ornaments,
cash, weapons and key. We find from the totality of facts
and circumstances that the confessions that led to the
18 (2010) 7 SCC 263
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
recovery of the incriminating material were not voluntary,
but caused by inducement, pressure or coercion. Once a
confessional statement of the accused on facts is found to
be involuntary, it is hit by Article 20(3) of the Constitution,
rendering such a confession inadmissible. There is an
embargo on accepting selfincriminatory evidence, but if it
leads to the recovery of material objects in relation to a
crime, it is most often taken to hold evidentiary value as per
the circumstances of each case. However, if such a
statement is made under undue pressure and compulsion
from the investigating officer, as in the present matter, the
evidentiary value of such a statement leading to the
recovery is nullified. It is noteworthy to reproduce the
observations of this Court regarding the relationship
between Section 27 of the Evidence Act and Article 20(3)
of the Constitution in Selvi v. State of Karnataka, (2010) 7
SCC 263:
"102. As mentioned earlier "the right against self-
incrimination" is now viewed as an essential safeguard
in criminal procedure. Its underlying rationale broadly
corresponds with two objectives--firstly, that of
ensuring reliability of the statements made by an
accused, and secondly, ensuring that such statements
are made voluntarily. It is quite possible that a person
suspected or accused of a crime may have been
compelled to testify through methods involving
coercion, threats or inducements during the
investigative stage. When a person is compelled to
testify on his/her own behalf, there is a higher likelihood
of such testimony being false. False testimony is
undesirable since it impedes the integrity of the trial and
the subsequent verdict. Therefore, the purpose of the
"rule against involuntary confessions" is to ensure that
the testimony considered during trial is reliable. The
premise is that involuntary statements are more likely to
mislead the Judge and the prosecutor, thereby resulting
in a miscarriage of justice. Even during the
investigative stage, false statements are likely to cause
delays and obstructions in the investigation efforts.
xxx xxx xxx
xxx xxx xxx
xxx xxx xxx
22. We are of the opinion that the recovery of the stolen
ornaments, etc. in the instant matter was made on the
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
basis of involuntary statements, which effectively negates
the incriminating circumstance based on such recovery,
and severely undermines the prosecution case."
28. Reverting to the facts of the case in light of the principles of law laid
down by their Lordships of the Supreme Court in Asar Mohammad
(supra) and Ashish Jain (supra) and further taking the view that the
confessional statements of the accused particularly Shyam Sunder (A-
2) is voluntary and it was not caused by inducement, pressure or
coercion or is the result of any assault as claimed by the accused /
appellant, it is quite established that the physical object produced by
accused / appellant Shyam Sunder as well as recovered from the
place where the physical objects were kept and knowledge of the
accused persons / appellants as to this extent would be admissible
and that has only been relied upon by the prosecution as incriminating
circumstance against the two appellants - Jamuna Bai (A-1) and
Shyam Sunder (A-2). We are of the opinion that the trial Court is
absolutely justified in holding that the confessional statements are
voluntary and truthful and same have been proved by Tankeshwar
Jaiswal (PW-2) - memorandum witness. As such, the argument in
this behalf being violative of Section 24 of the Evidence Act read with
Article 20(3) of the Constitution of India raised by the learned Senior
Counsel, is hereby rejected.
29. Now, the next submission made on behalf of the learned Senior
Counsel is that the seized articles namely, chopper, shirt and full pant
stained with blood from accused Shyam Sunder vide Ex.P-9 and
petticoat seized vide Ex.P-11 from Jamuna Bai were not produced
before the court and not marked as articles, therefore, it cannot be
established that the said articles were the same which were seized
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
from the accused / appellants pursuant to their memorandum
statements Exs.P-8 & P-10. However, it has been argued by the
learned State counsel that no such foundation for such a submission
was laid before the trial Court by the appellants and investigating
officer S.B. Singh Rana (PW-13) was also not questioned on this
aspect at the time of his examination. A careful perusal of the
statement of S.B. Singh Rana (PW-13) would show that no question
was put to him that these articles, which were seized pursuant to the
memorandum statements of Jamuna Bai and Shyam Sunder, were
not produced before the court, otherwise, he could have given
explanation if the articles were not kept in safe custody and were not
produced before the trial Court and the trial Court which was seisin of
the matter could have taken cognizance of the same and could have
taken appropriate steps in that regard, but no such objection was
raised and we can say safely that no foundation was laid in this regard
by the appellants before the trial Court or at the time of examination of
investigating officer S.B. Singh Rana (PW-13).
30. In this regard, the decision of the Supreme Court in Lakshmi (supra)
may be referred herein pertinently. Their Lordships of the Supreme
Court in Lakshmi (supra) have held that undoubtedly, the identification
of the body, cause of death and recovery of weapon with which the
injury may have been inflicted on the deceased are some of the
important factors to be established by the prosecution in an ordinary
given case to bring home the charge of offence under Section 302
IPC. This, however, is not an inflexible rule. It cannot be held as a
general and broad proposition of law that where these aspects are not
established, it would be fatal to the case of the prosecution and in all
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
cases and eventualities, it ought to result in the acquittal of those who
may be charged with the offence of murder. It would depend on the
facts and circumstances of each case.
31. In the instant case also, the appellants for the reasons best known to
them have failed to lay foundation of the said plea before the trial
Court either at the time of examination of the investigating officer or at
the time of trial before the said Court, as such, the objection in this
regard raised belatedly at the appellate stage without laying any
foundation before the trial Court, is hereby rejected.
32. The next submission on behalf of the appellants is, though in the FSL
report Ex.P-60, human blood has been found on Art. 'C' i.e. petticoat
seized from Jamuna Bai (A-1) and on iron chopper (Art. 'E') seized
from the possession of Shyam Sunder (A-2) and blood group of the
same has also been ascertained as 'A', and similarly, on the vest (Art.
'H1') seized from deceased Shyam Kumar blood of Group 'A' was
found, it has been argued by learned Senior Counsel that merely
ascertaining of blood group on the aforesaid articles that too of the
same blood group of deceased Shyam Kumar, would not lead to
culpability of the appellants in the offence in question, relying upon
Debapriya Pal (supra) followed in Sonvir alias Somvir (supra).
33. In Debapriya Pal (supra), blood detected on clothes recovered at
instance of accused and on bed sheet at spot, found matching, but
blood group of accused and deceased however, was not ascertained
and their Lordships of the Supreme Court held that matching blood
groups on recovered clothes and bed sheet by itself cannot be proof
of involvement of accused. The two-Judges Bench decision of the
Supreme Court in Debapriya Pal (supra) has been followed by
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
another two-Judges Bench of the Supreme Court in Sonvir alias
Somvir (supra). However, on behalf of the State / respondent, a
three-Judges Bench decision of the Supreme Court in Balwan Singh
(supra) has been relied upon in which their Lordships have considered
the issue and 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. It has been observed by their Lordships as
under: -
"13. From the aforementioned discussion, we can
summarise 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. The court will have to come to the conclusion based
on the facts and circumstances of each case, and there
cannot be any fixed formula that the prosecution has to
prove, or need not prove, that the blood groups match."
34. Reverting to the facts of the present case, it is quite vivid that it is not
the case of the appellants that the investigation made by the police
was tainted anyway or it has not been done in accordance with law
and even the recovery of bloodstained articles have been duly proved
by Tankeshwar Jaiswal (PW-2) which has not been seriously
questioned. Not only this, bloodstains have been found on the
petticoat seized from the possession of Jamuna Bai (A-1) and on the
chopper seized from the possession of Shyam Sunder (A-2) and the
blood on those two articles is of human origin ascertained to be of
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
Group A. Furthermore, blood found on the vest seized from deceased
Shyam Kumar i.e. Art. 'H1' was also found to be of Group A and that
was matching with the articles recovered from Jamuna Bai (A-1) and
Shyam Sunder (A-2). As such, there is no ground to reject the FSL
report Ex.P-60 holding that many people have the blood of Group A.
Even otherwise, in Debapriya Pal (supra), blood group of accused and
deceased was not ascertained, but in the instant case, blood group of
one of the deceased was duly ascertained by examining his vest Art.
'H1' and blood group was found to be of Group 'A'. As such, the FSL
report Ex.P-60 also connects the appellants with the offence in
question. Therefore, the argument raised on behalf of the learned
Senior Counsel that the FSL report is not reliable and cannot be relied
upon deserves to be and is hereby rejected.
35. The last submission advanced on behalf of the learned Senior
Counsel is that the appellants were not seen partly before the incident
and partly after the incident near the place where the offence in
question has taken place i.e. in the house of deceased persons
Namrata Jaiswal and Shyam Kumar. It is relevant to mention here
that it is not the case of the prosecution that the appellants were seen
along with the deceased persons lastly as the case of the prosecution
is not based on the theory of last seen together, rather it is based on
other circumstantial evidence. Even otherwise, it is not in dispute that
one of the appellants - Jamuna Bai was already staying in the same
house (in ground flour) in which Namrata Jaiswal and Shyam Kumar,
both were found dead on the fateful day, as such, the two decisions
relied upon by the learned Senior Counsel namely, Prem Singh
(supra) and Ramanand's case (supra) are of no help to the appellants
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
and this submission is accordingly rejected.
36. On the basis of the aforesaid discussion, we are of the considered
opinion that the trial Court is absolutely justified in holding that the
prosecution has been able to prove the offence beyond reasonable
doubt against Jamuna Bai and Shyam Sunder by holding that motive
of the offence in question is proved pursuant to the disclosure
statements Exs.P-8 & P-10 whereupon seizure of blood-stained
petticoat has been made vide Ex.P-11 and seizure of chopper, shirt,
full pant & motorcycle has been made vide Ex.P-9. The seized
articles were sent for forensic examination and vide Ex.P-60, FSL
report has been received according to which human blood was found
on petticoat & chopper and blood group has been ascertained as
Group A which is matching with the vest (Art. 'H1') seized from
deceased Shyam Kumar. Furthermore, the investigation was not
tainted and recovery was also proved beyond doubt by Tankeshwar
Jaiswal (PW-2). As such, the chain of circumstances is complete and
it is duly established.
37. In that view of the matter, the trial Court is absolutely justified in
convicting and sentencing appellants Jamuna Bai (A-1) and Shyam
Sunder (A-2) for offence under Sections 120B, 460 and 302 read with
Section 34 (two counts) of the IPC. We hereby affirm the judgment of
conviction and order of sentence awarded to Jamuna Bai and Shyam
Sunder. Accordingly, Cr.A.No.1202/2014 preferred by the two
appellants named above deserves to be dismissed.
Cr.A.No.1143/2014 by Sahaniram & Dadhibal and Cr.A.
No.1160/2014 by Surendra Kumar: -
38. It has been contended by the learned Senior Counsel that these three
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
appellants namely, Surendra Kumar (A-3), Sahaniram (A-4) and
Dadhibal (A-5) have been convicted by the trial Court with the aid of
Section 30 of the Evidence Act. The learned Senior Counsel has
taken us to paragraphs 41 & 66 of the judgment of the trial Court by
which it has been held that in view of the confessional statements of
co-accused Jamuna Bai (A-1) and Shyam Sunder (A-2), their
evidence is admissible by virtue of Section 30 of the Evidence Act,
though their confessional statements are corroborative pieces of
evidence. Paragraphs 41 and 66 of the judgment of the trial Court
state as under: -
41- इिके अततथािरक्त आरोपी श ाम िुनदर एवा आरोदप ा जमुनाबाई् के
मेमोरणडम कथन िे आरोपीगण के मध मृततथाका शीमतथाी नमतथाा जा िवाल एवा
मृतथाक श ाम कुमार जा िवाल की हत ा करने का षड ात करने एवा िामान
आश बनाने के अलावा घटना मे िाललि अन आरोपीगण िुरने ् कु मार , दधीबल
एवा िहनीराम की घटना मे िाललित्ता होने तथाथा उनका उक्त षड ात एवा िामान
आश मे शादमल होने के तथाथ य का पतथाा चला है , जो धारा 30 भारतथाी िाक
अतधदन म के तथाहतथान िमथर नकारी िाक के रप मे गारा है ।या इि पकरण मे केवल
ऐिा नही है दक आरोदप ा जमुनाबाई् एवा आरोपी श ाम िुनदर के मेमोरणडम कथन
िे ही अन आरोपी िुरने ्, दधीबल एवा िहिीराम के नाम आए है, बललक िभी
आरोपीगण का घटना मे िाललि होने के तथाथ का रहस ोोाटन िाकी नरेन् कु मार
(अ.िा.-7) के धारा 161 द.प.िा. के कथन के आधार पर हुआ है और जजिके
आधार पर दववेचना अतधकारी दारा दवसतथाृतथा दववेचना दकए जाने पर घटना के तथाहन
तथाक पहुच
ा ा जा िका है, दकनतथाु ह भभन् दवष है दक अपने न ा ाल ीन कथन के
दौरान िाकी नरेन् कुमार (अ.िा.-7) दारा अभभ ोजन कथानक का पूणर िमथर न
नही दक ा ग ा है, दकनतथाु अभभ ोजन के अन िाकी अभभ ोजन मामले का िमथर न
दकए है ।या
66- इि पकरण मे आरोपीगण दारा मृतथाक श ाम कु मार एवा शीमतथाी नमतथाा
जा िवाल की हत ा करने का षड ात कर उनकी िामान आश िे हत ा दक ा
जाना पिरलसथततथाजन िाक िे िनदेह िे परे पमाभणतथा है , अतथाः आरोपीगण को
उनके उक्त तथाकतरर का लाभ पाि नही होतथाा है ।या जहाा तथाक, धारा 30 भारतथाी िाक
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
अतधदन म के तथाहतथान एक आरोपी की िासवीकृततथा अन आरोपी के दवरो िाक मे
गारा नही होने का है , तथाो उक्त तथाकर भी सवीकार ोग नही है क यदक धारा 30
भारतथाी िाक अतधदन म के तथाहतथान िासवीकृततथा अन आरोपी के दवरो िाक मे
गारा है ।या ह अवश है दक उक्त िासवीकृततथा िारवानन िाक के रप मे न माना
जाकर िमथर नकारी िाक के रप मे माना ग ा है ।या अतथाः आरोपीगण को उनके
उक्तानुिार तथाकर्को का लाभ पाि नही होतथाा है तथाथा मान्ी न ा षानतथा आलोकनाथ
दत्त वगै . बनाम पतशम बागाल राज (2008) 2 एि.िी.िी. (क्राई्म्ि) 264 की
तथाथ एवा पिरलसथतथा ाा एवा इि पकरण के तथाथ एवा पिरलसथततथा ाा भभन् होने िे
आरोपीगण को, उनका कोई् लाभ पाि नही होतथाा है ।या
39. Now, the question would be, whether the trial Court is justified in
convicting the aforesaid three appellants with the aid of Section 30 of
the Indian Evidence Act, 1872, which states as under: -
"30. Consideration of proved confession affecting person
making it and others jointly under trial for same offence.--
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 may take into consideration such
confession as against such other person as well as against
the person who makes such confession.
Explanation.--"Offence", as used in this section,
includes the abetment of, or attempt to commit, the
offence."
40. A careful perusal of the aforesaid provision would show that the object
of this provision is that where an accused person unreservedly
confesses his own guilt, and at the same time implicates another
person who is jointly tried with him for the same offence, his
confession may be taken into consideration against such other person
as well as against himself, because the admission of his own guilt
operates as a sort of sanction, which, to some extent, takes the place
of the sanction of an oath and so affords some guarantee that the
whole statement is a true one. When a person admits his guilt to the
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
fullest extent, and exposes himself to the pains and penalties provided
therefore, there is a guarantee for his truth. The Court could use the
confession of one accused against another accused only if the
following two conditions are fulfilled: -
1. The co-accused should have been charged in the same case
along with the confessor.
2. He should have been tried together with the confessor in the
same trial.
41. Section 30 of the Evidence Act came up for consideration before their
Lordships of the Supreme Court in Haricharan Kurmi (Constitution
Bench) (supra) in which their Lordships have considered the probative
value of confession of co-accused and its use how to be made in joint
trial. In Haricharan Kurmi (supra), their Lordships clearly held that
though confession may be regarded as evidence in that generic sense
because of the provisions of Section 30, the fact remains that it is not
evidence as defined by Section 3 of the Act and observed as under: -
"11. ... The basis on which this provision is founded is
that if a person makes a confession implicating himself,
that may suggest that the maker of the confession is
speaking the truth. Normally, if a statement made by an
accused person is found to be voluntary and it amounts to
a confession in the sense that it implicates the maker, it is
not likely that the maker would implicate himself untruly,
and so, S. 30 provides that such a confession may be
taken into consideration even against a co-accused who is
being tried along with the maker of the confession. There
is no doubt that a confession made voluntarily by an
accused person can be used against the maker of the
confession, though as a matter of prudence criminal courts
generally require some corroboration to the said confession
particularly if it has been retracted. With that aspect of the
problem, however, we are not concerned in the present
appeals. When S. 30 provides that the confession of a co-
accused may be taken into consideration, what exactly is
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
the scope and effect of such taking into consideration is
precisely the problem which has been raised in the present
appeals. It is clear that the confession mentioned in S. 30
is not evidence under S. 3 of the Act. ...
12. ... It would be noticed that as a result of the
provisions contained in S. 30, the confession has no doubt
to be regarded as amounting to evidence in a general way,
because whatever is considered by the Court is evidence;
circumstances which are considered by the court as well as
probabilities do amount to evidence in that generic sense.
Thus, though confession may be regarded as evidence in
that generic sense because of the provisions of S. 30, the
fact remains that it is not evidence as defined by S. 3 of the
Act. The result, therefore, is that in dealing with a case
against an accused person, the court cannot start with the
confession of co-accused person; it must begin with other
evidence adduced by the prosecution and after it has
formed its opinion with regard to the quality and effect of
the said evidence, then it is permissible to turn to the
confession in order to receive assurance to the conclusion
of guilt which the judicial mind is about to reach on the said
other evidence. That, briefly stated, is the effect of the
provisions contained is S. 30. The same view has been
expressed by this Court in Kashmira Singh v. State of
Madhya Pradesh, 1952 SCR 526: (AIR 1952 SC 159)
where the decision of the Privy Council in Bhuboni Sahu's
case, 76 Ind App 147 (AIR 1949 PC 257) has been cited
with approval.
16. ... As we have already indicated, it has been a
recognised principle of the administration of criminal law in
this country for over half a century that the confession of a
co-accused person cannot be treated as substantive
evidence and can be pressed into service only when the
court is inclined to accept other evidence and feels the
necessity of seeking for an assurance in support of its
conclusion deducible, from the said evidence. In criminal
trials, there is no scope for applying the principle of moral
conviction or grave suspicion. In criminal cases where the
other evidence adduced against an accused person is
wholly unsatisfactory and the prosecution seeks to rely on
the confession of a co-accused person, the presumption of
innocence which is the basis of criminal jurisprudence
assists the accused person and compels the Court to
render the verdict that the charge is not proved against
him, and so, he is entitled to the benefit of doubt. That is
precisely what has happened in these appeals."
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
42. The principle of law laid down in Haricharan Kurmi (supra) has been
followed recently by the Supreme Court in Dipakbhai Jagdishchandra
Patel (supra). It has also been held by their Lordships that confession
of an accused person is not evidence, it cannot be made tile
foundation of a conviction and can only be used in support of other
evidence (see Kashmira Singh v. State of Madhya Pradesh19, Nathu v.
State of Uttar Pradesh20 and Govt. of NCT of Delhi v. Jaspal Singh21.)
43. In the matter of Surinder Kumar Khanna v. Intelligence Officer,
Directorate of Revenue Intelligence22, their Lordships of the Supreme
Court have summarised the law relating to scope of Section 30 of the
Evidence Act and observed as under: -
"11. The law laid down in Kashmira Singh (supra) was
approved by a Constitution Bench of this Court in
Haricharan Kurmi v. State of Bihar (supra) wherein it was
observed: (Haricharan case (supra), AIR p.1188, para 12)
"12. As we have already indicated, this question
has been considered on several occasions by judicial
decisions and it has been consistently held that a
confession cannot be treated as evidence which is
substantive evidence against a co-accused person. In
dealing with a criminal case where the prosecution
relies upon the confession of one accused person
against another accused person, the proper approach
to adopt is to consider the other evidence against such
an accused person, and if the said evidence appears to
be satisfactory and the court is inclined to hold that the
said evidence may sustain the charge framed against
the said accused person, the court turns to the
confession with a view to assure itself that the
conclusion which it is inclined to draw from the other
evidence is right. As was observed by Sir Lawrence
Jenkins in Emperor v. Lalit Mohan Chuckerbutty 23 a
confession can only be used to "lend assurance to
19 AIR 1952 SC 159
20 AIR 1956 SC 56
21 (2003) 10 SCC 586
22 (2018) 8 SCC 271
23 ILR (1911) 38 Cal 559 at p. 588
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
other evidence against a co-accused". In Periaswami
Moopan, In re24 Reilly, J., observed that the provision of
Section 30 goes not further than this: (SCC OnLine
Mad)
'... where there is evidence against the co-
accused sufficient, if believed, to support his
conviction, then the kind of confession described in
Section 30 may be thrown into the scale as an
additional reason for believing that evidence'.
In Bhuboni Sahu v. R.25 the Privy Council has
expressed the same view. Sir John Beaumont who
spoke for the Board, observed that: (SCC OnLine PC)
'... a confession of a co-accused is obviously
evidence of a very weak type. It does not indeed
come within the definition of "evidence" contained in
Section 3 of the Evidence Act. It is not required to
be given on oath, nor in the presence of the
accused, and it cannot be tested by cross-
examination. It is a much weaker type of evidence
than the evidence of an approver, which is not
subject to any of those infirmities. Section 30,
however, provides that the court may take the
confession into consideration and thereby, no
doubt, makes it evidence on which the court may
act; but the section does not say that the confession
is to amount to proof. Clearly there must be other
evidence. The confession is only one element in
the consideration of all the facts proved in the case;
it can be put into the scale and weighed with the
other evidence'.
It would be noticed that as a result of the provisions
contained in Section 30, the confession has no doubt to
be regarded as amounting to evidence in a general
way, because whatever is considered by the court is
evidence; circumstances which are considered by the
court as well as probabilities do amount to evidence in
that generic sense. Thus, though confession may be
regarded as evidence in that generic sense because of
the provisions of Section 30, the fact remains that it is
not evidence as defined by Section 3 of the Act. The
result, therefore, is that in dealing with a case against
an accused person, the court cannot start with the
24 1930 SCC OnLine Mad 86 : ILR (1931) 54 Mad 75 at p. 77
25 1949 SCC OnLine PC 12 : (1948-49) 76 IA 147 at p. 155
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
confession of a co-accused person; it must begin with
other evidence adduced by the prosecution and after it
has formed its opinion with regard to the quality and
effect of the said evidence, then it is permissible to turn
to the confession in order to receive assurance to the
conclusion of guilt which the judicial mind is about to
reach on the said other evidence. That, briefly stated,
is the effect of the provisions contained in Section 30.
The same view has been expressed by this Court in
Kashmira Singh v. State of M.P. (supra) where the
decision of the Privy Council in Bhuboni Sahu case
(supra) has been cited with approval."
12. The law so laid down has always been followed by
this Court except in cases where there is a specific
provision in law making such confession of a co-accused
admissible against another accused.26
44. Reverting to the facts of the case in light of the aforesaid principles of
law laid down by their Lordships of the Supreme Court in Haricharan
Kurmi (supra), Dipakbhai Jagdishchandra Patel (supra) and Surinder
Kumar Khanna (supra) and considering the provisions contained in
Section 30 of the Evidence Act, it is quite vivid that confessional
statement of co-accused is a very weak piece of evidence, unless
other circumstantial evidence or ocular evidence is available,
conviction cannot be rested only on the confessional statement of the
co-accused with the aid of Section 30 of the Evidence Act, as it
requires corroboration from other evidence and unless there is other
evidence, ocular or circumstantial evidence available on record,
merely on the basis of confessional statement of co-accused,
conviction with the aid of Section 30 of the Evidence Act cannot be
made by the courts.
45. Reverting to the facts of the case finally, in the instant case, as noticed
herein-above in paragraphs 41 & 66 of the judgment of the trial Court,
26 For example: State v. Nalini, (1999) 5 SCC 253, paras 424 and 704 : 1999 SCC (Cri) 691
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
the trial Court has held the present appellants - Surendra Kumar (A-
3), Sahaniram (A-4) and Dadhibal (A-5) guilty for the aforesaid
offences in question merely on the basis of confessional statements
Exs.P-8 & P-10 of co-accused Jamuna Bai (A-1) and Shyam Sunder
(A-2), and no other evidence ocular and circumstantial has been
brought & established on record to hold these appellants guilty except
the confessional statements of Jamuna Bai and Shyam Sunder,
whereas confessional statement of co-accused has to be used only as
a corroborative piece of evidence. In that view of the matter, we are
of the considered opinion that the trial Court is absolutely unjustified in
convicting these appellants with the aid of Section 30 of the Evidence
Act relying upon the confessional statements of co-accused Jamuna
Bai (A-1) and Shyam Sunder (A-2). Accordingly, we are unable to
uphold the conviction of appellants Surendra Kumar (A-3), Sahaniram
(A-4) and Dadhibal (A-5) and we hereby set aside conviction and
sentences imposed upon them under Sections 120B, 460 & 302 read
with Section 34 (two counts) of the IPC and they are acquitted of the
said charges.
Conclusion: -
46. The criminal appeal preferred by Jamuna Bai (A-1) and Shyam
Sunder (A-2) being Cr.A.No.1202/2014 is dismissed being merit-less.
47. The criminal appeals preferred by Surendra Kumar (A-3), Sahaniram
(A-4) and Dadhibal (A-5) being Cr.A.Nos.1160/2014 & 1143/2014 are
allowed. Conviction and sentences imposed upon them under
Sections 120B, 460 & 302 read with Section 34 (two counts) of the
IPC are set aside and they are acquitted of the said charges. They
are on bail. They need not surrender. However, their bail bonds shall
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
remain in force for a period of six months in view of the provision
contained in Section 437A of the CrPC.
Sd/- Sd/-
(Sanjay K. Agrawal) (Sanjay S. Agrawal)
Judge Judge
Soma
Cr.A.Nos.1202/2014, 1160/2014 & 1143/2014
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.1202 of 2014
Jamuna Bai and another
Versus
State of Chhattisgarh
and two other connected appeals
Head Note
Confessional statement of co-accused can be relied upon as a corroborative
piece of evidence by virtue of Section 30 of the Indian Evidence Act, 1872
and conviction cannot solely base on the confessional statement of the co-
accused.
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la;kstd lk{; ds :i esa Lohdkj fd;k tk ldrk gS rFkk dsoy lg&vfHk;qDr dh
laLohd`fr ds vk/kkj ij nks"kflf) ugha dh tk ldrh gSA
