Chattisgarh High Court
Monu Thawait vs State Of Chhattisgarh on 21 October, 2022
1
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 1561 of 2015
Judgment reserved on 07/09/2022
Judgment delivered on 11/10/2022
1. Mohammad Eliyas S/o Mohammad Shabir, Aged about 21
years, R/o Chhote Masjid Gali, Sarangarh, Tahsil
Sarangarh, Civil and Revenue Distt. Raigarh, Chhattisgarh.
2. Satish Bareth S/o Jagatram, Aged about 21 years, R/o
Chhote Masjid Gali, Sarangarh, Tahsil Sarangarh, Civil and
Revenue Distt. Raigarh, Chhattisgarh.
---Appellants
Versus
State of Chhattisgarh through District Magistrate, Raigarh,
Distt. Raigarh, Chhattisgarh.
---Respondent
For Appellants :- Mrs. Indira Tripathi, Advocate
For State :- Mr. Sudeep Verma, Dy. G.A.
Criminal Appeal No. 1647 of 2015
Monu Thawait S/o Kishan Thawait, Aged about 22 years,
R/o Chirki Gali, Sarangarh, Tahsil Sarangarh, Civil and
Revenue District Raigarh, Chhattisgarh.
---Appellant
Versus
State of Chhattisgarh through Station House Officer, Police
Station Sarangarh, Distt. Raigarh, Chhattisgarh.
---Respondent
2
For Appellant :- Mr. U.K.S. Chandel, Advocate
For State :- Mr. Sudeep Verma, Dy. G.A.
Criminal Appeal No. 532 of 2016
Mohd. Bilal S/o Mohd. Shakir, Aged about 21 years, R/o in
front of Tahsil Office Sarangarh, Tahsil Sarangarh, Police
Station Sarangarh, Civil and Revenue District Raigarh,
Chhattisgarh.
---Appellant
Versus
State of Chhattisgarh acting through Officer-in-charge
Police Station Sarangarh, Distt. Raigarh, Chhattisgarh.
---Respondent
For Appellant :- Mr. Manoj Kumar Sinha, Advocate
For State :- Mr. Sudeep Verma, Dy. G.A.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sachin Singh Rajput
C.A.V. Judgment
Sanjay K. Agrawal, J.
1. Since all of these criminal appeals have arisen out
impugned judgment dated 07/11/2014 passed by learned
Additional Sessions Judge Sarangarh, Distt. Raigarh in
Sessions Trial No. 34/2014, therefore, they have been
clubbed together, heard together and are being decided by
this common judgment.
2. The two appellants in Criminal Appeal No. 1561/2015
namely Mohammad Eliyas (A-2) and Satish Bareth (A-4); the
sole appellant in Criminal Appeal No. 1647/2015 namely
Monu Thawait (A-3); and the sole appellant in Criminal
Appeal No. 532/2016 namely Mohammad Bilal (A-1); all
have preferred these appeals under Section 374(2) of CrPC
calling in question the validity, legality and correctness of
the judgment impugned whereby each of them has been
convicted for offence punishable under Section 302/34 of
IPC and sentenced to undergo life imprisonment with fine of
Rs. 1000/- in default to pay fine further R.I. for one year;
under Section 364/34 of IPC and sentenced to undergo R.I.
for 7 years and fine of Rs. 500/- in default to pay fine
further R.I. for six months; and under Section 201/34 of
IPC and sentenced to undergo R.I. for 5 years with fine of
Rs. 500/- in default to pay fine, further R.I. for six months.
3. Case of the prosecution, in brief, is that on the intervening
night of 28-29/08/2014 within the ambit of Police Station
Sarangarh, the appellants/accused persons, in furtherance
of their common intention of causing death of Tiharu Patel,
abducted him and strangulated him with a plastic rope on
account of which he succumbed to death and thereafter, in
order to screen themselves from the offence, drowned the
dead body of the deceased in Heerakund Dam and threw
the shirt worn by him at the time of the incident on the
road, and thereby, committed the aforesaid offences.
4. Further case of the prosecution is that on 29/08/2014,
Nawdhalal Patel (P.W.-1) lodged a report at Police Station
Sarangarh that his younger brother Tiharu Patel used to
work at Abbas Ali Petrol Pump, Sarangarh and he had
married Gauri Patel (P.W.-9) prior to 8-10 years from the
incident but they had no issue. Tiharu Patel owned a Bolero
bearing No. CG-13-U-2813 and he had kept Mohammad
Bilal (A-1) as a driver for the said vehicle for the past three
years, who had developed illicit relationship with the wife of
Tiharu Patel namely Gauri Patel (P.W.-9) on account of
which dispute arose between Mohammad Bilal (A-1), Tiharu
Patel (deceased) and his wife Gauri Patel (P.W.-9) frequently
and it was known by the whole family of the deceased. On
29/08/2014, Tiharu Patel (deceased) had gone to work in
the Petrol Pump but he did not return home at night. When
Nawdhalal Patel (P.W.-1) enquired at the Petrol Pump, he
was told that his brother Tiharu Patel had returned to go
home after completing his work at 8 PM and thereafter,
Nawdhalal Patel (P.W.-1) lodged FIR for offence punishable
under Section 364 of IPC vide Ex. P/1 and pursuant
thereof, the wheels of investigation started running.
5. During the course of the investigation, it was found that
prior to 5-6 months of the incident, Gauri Patel (P.W.-9),
wife of deceased, had given birth to a daughter and on the
pretext of the daughter being born out of the illicit
relationship between Mohammad Bilal (A-1) and Gauri Patel
(P.W.-9) which was going on for two years, dispute arose
between the appellant/accused Mohammad Bilal (A-1) and
the deceased and on that account, on 28/08/2014 at about
08:00 PM, Mohammad Bilal (A-1) along with the three co-
accused persons, with the intention of causing death of
Tiharu Patel, took him to Mohan Dhaba owned by Mohanlal
Chauhan (P.W.-8) on the pretext of giving party and
administered sleeping pills in the cold drink/liqour
consumed by deceased Tiharu Patel and when he became
unconscious, all the four accused persons took him to
Heerakund Dam in his Bolero and in the intervening night
of 28-29/08/2014, strangulated him with plastic rope and
thereafter, drowned his dead body in the dam and threw the
shirt worn by the deceased on the National Highway.
6. On the basis of the memorandum statement of Mohammad
Bilal vide Ex. P/4, the dead body of deceased Tiharu Patel
was recovered from Heerakund Dam vide Ex. P/30 and
plastic rope was recovered from the spot vide Ex. P/16 and
the shirt worn by the deceased was recovered from the
Highway vide Ex. P/15. Thereafter, offence punishable
under Sections 302 and 201 r/w 34 of IPC were also added
in the FIR (Ex. P/1) against the four accused persons and
merg intimation was registered vide Ex. P/2. Nazri Naksha
was prepared vide Ex. P/26 and inquest was conducted vide
Ex. P/3. The dead body of deceased Tiharu Patel, after being
identified, was subjected to postmortem, which was
conducted by Dr. B.P. Sai (P.W.-14) and as per the
postmortem report (Ex. P/28), cause of death is said to be
asphyxia due to strangulation and nature of death is
homicidal.
7. Upon further investigation, one black coloured Micromax
mobile phone was seized from accused Mohammad Bilal (A-
1) vide Ex. P/17 and White coloured Bolero vehicle bearing
Registration No. CG-13-U-2813 was seized vide Ex. P/5 and
one black coloured Nokia mobile phone was seized from
accused Monu Thawait (A-3) vide Ex. P/18 and one black
coloured Samsung mobile phone was seized from accused
Satish Bareth (A-4) vide Ex. P/19. The seized articles were
sent for chemical examination vide Ex. P/31 but no FSL
report has been brought on record. After due investigation
and after recording the statements of the witnesses, the
appellants/accused persons were charge-sheeted for offence
punishable under Sections 302/34, 364/34 and 201/34 of
IPC which was presented before the Jurisdictional Criminal
Court and ultimately, it was committed to the Court of
Session for hearing and disposal in accordance with law.
The appellants/accused persons abjured their guilt and
entered into defence.
8. In order to bring home the offence, prosecution examined as
many as 17 witnesses and exhibited 36 documents on
record. The statements of the accused persons were
recorded wherein they denied guilt, however, they examined
none in their defence but exhibited the statements of
Nawdhalal Patel (P.W.-1) as Ex. D/1, Lakeshwar Patel (P.W.-
5) as Ex. D/2 and Ramesh Kumar Patel (P.W.-7) as Ex. D/3.
9. Learned trial Court, after appreciating the oral and
documentary evidence on record, finding the death of
deceased Tiharu Patel to be homicidal in nature and further
finding the appellants/accused persons to be the
perpetrators of the crime, convicted them for offences
punishable under Sections 302/34, 364/34 and 201/34 of
IPC and sentenced as aforesaid.
10. Mr. Manoj Kumar Sinha, learned counsel appearing for
appellant/accused Mohammad Bilal (A-1) in Criminal
Appeal No. 532/2016, would submit that there is no direct
evidence available against accused Mohammad Bilal (A-1)
and he has been convicted on the basis of memorandum
statement (Ex. P/4) which is inadmissible in evidence.
Moreover, the dead body of deceased Tiharu Patel is said to
have been recovered by fishermen whereas neither any
fisherman nor any witness residing nearby the Heerakund
Dam has been examined and the police
personnels/Investigating Officer already knew about the
dead body of the deceased prior to the memorandum
statement of the accused (Ex. P/4) which makes it
inadmissible, as such, it could not have been relied upon by
the trial Court to convict the appellants/accused persons
for the aforesaid offences. He would also submit that
though the shirt worn by the deceased was recovered from
National Highway vide Ex. P/15, but it could not be proved
as no FSL report has been brought on record by the
prosecution, therefore, the impugned judgment recording
conviction of the appellants/accused persons for the
aforesaid offences and awarding sentences accordingly is
liable to be set aside and the appellants/accused persons
deserve to be acquitted of the charges levelled against them.
11. Mrs. Indira Tripathi and Mr. U.K.S. Chandel, learned
counsels appearing for the appellants/accused persons
Mohammad Eliyas (A-2), Satish Bareth (A-4) in Criminal
Appeal No. 1561/2019 and Monu Thawait (A-3) in Criminal
Appeal No. 1647/2015, would submit that only Mohanlal
Chauhan (P.W.-8), who is the owner of Mohan Dhaba, has
named the appellants/accused persons to be seen with the
deceased on the night of the incident, as such, his sole
testimony cannot be relied upon. They would further submit
that the three appellants/accused persons namely
Mohammad Eliyas (A-2), Monu Thawait (A-3) and Satish
Bareth (A-4) could not have been convicted on the basis of
memorandum statement of Mohammad Bilal (A-1) in
accordance with Section 30 of the Evidence Act in absence
of any other incriminating evidence available against them
in light of the decision rendered by the Supreme Court in
the matter of Haricharan Kurmi v. State of Bihar1, as
such, the conviction of Mohammad Eliyas (A-2), Monu
Thawait (A-3) and Satish Bareth (A-4) for the aforesaid
offences is liable to be set aside.
12. Mr. Sudeep Verma, learned State counsel, would submit
that prosecution has brought ample evidence on record to
prove the motive of offence. Moreover, pursuant to
memorandum statement of appellant/accused Mohammad
Bilal (A-1) vide Ex. P/4 [duly proved by memorandum
witnesses Nawdhalal Patel (P.W.-1) and Ramesh Kumar
Patel (P.W.-7)], the dead body of deceased Tiharu Patel was
recovered from Heerakund Dam vide Ex. P/30, plastic rope
was recovered from the spot vide Ex. P/16 and the shirt
worn by the deceased was recovered from the Highway vide
Ex. P/15, which has also been proved by seizure witnesses
Lakeshwar Patel (P.W.-5) and Ramesh Kumar Patel (P.W.-7).
As such, the appellants/accused persons Mohammad
Eliyas (A-2), Monu Thawait (A-3) and Satish Bareth (A-4)
have rightly been convicted for the aforesaid offences on the
basis of memorandum statement of Mohammad Bilal (A-1)
in light of the decision rendered by the Supreme Court in
the matter of State of Maharashtra v. Suresh 2 which has
been followed with approval in Ningappa yallappa
Hosamani and others v. State of Karnataka and others 3.
1 AIR 1964 SC 1184
2 (2000) 1 SCC 471
3 (2009) 14 SCC 582
13. We have heard learned counsel for the parties, considered
their rival submissions made herein-above and went
through the records with utmost circumspection.
14. The first question that requires consideration is, whether
the death of deceased Tiharu Patel was homicidal in
nature ?
15. Learned trial Court has recorded an affirmative finding in
this regard and held that the death of deceased was
homicidal in nature relying upon the medical evidence of
Dr. B.P. Sai (P.W.-14) and the postmortem report (Ex.
P/28). A careful perusal of the statement of Dr. B.P. Sai
(P.W.-14) would show that while conducting postmortem of
the deceased, he has made the following observations :-
"[email protected] eqag v/k[kqyk Fkk nksuksa vka[k can Fkk] vka[k lwt x;k Fkk
dUtdvkbok dUtLVM Fkk iqryh QSy x;h FkhA gksaB lwtu gks
x;k Fkk vkSj uhyk gks x;k FkkA eqag vkSj ukd ls [kwu feDl >kx
fudy jgk Fkk psgjk] iwjk 'kjhj Qwy x;k FkkA xys ij jLlh ds
fu'kku Fkk tks FkkbjkbM dkfMZyst ds uhps xys ds pkjks vksj
gksfjtsUVyh FkkA jLlh ds fu'kku ds uhps dkVus ls CyM tek gqvk
FkkA Vªsfd;k dUtLVM Fkk vkSj mlesa >kx FkkA QQksys cka;s gkFk
vkSj Nkrh ds cka;s lkbM esa FkkA
[email protected] gkFk ds uk[kwu ij uhykiu fy;s gq;s FkkA [kjkst 7 xq.kk
3-5 ls-eh- Nkrh cka;s lkbM Fkk nwljk [kjksp 11 xq.kk 6 ls-eh- isV
ds cka;s lkbM esa FkkA efl'd dk flYyh dUtLVM FkkA nkfguk
vkSj cka;k QsQM+k dUtLVM FkkA gkVZ ds cka;s lkbM [kkyh Fkk
nkfgus lkbM esa FkksM+k CyM FkkA isV ij v/kipk [kkuk FkkA ;d`r
Iyhgk xqjnk dUtLVM FkkA xys ij jLlh ds fu'kku jLlh ls vk;h
Fkh tks e`R;q ds igys dk FkkA isV vkSj mlds vanj ds oLrq;sa lhy
can dk iqfyl dks jklk;fud tkap ds fy;s lkSaik FkkA
[email protected] esjs erkuqlkj xyk ?kksVus ls lkal :dus ds dkj.k e`R;q
gqbZ Fkh tks gR;kRed izd`fr dk FkkA e`R;q ih-,e- djus ds 24 ls 40
ds njE;ku dk FkkA esjh fjiksVZ izih&28 gS ftlds v ls v Hkkx ij
esjs gLrk{kj gSA "
16. Thereafter, in paragraph 5 of his statement, Dr. B.P. Sai
(P.W.-14) has clearly opined that the death of deceased
Tiharu Patel was caused due to asphyxia and the nature of
death is homicidal. In our considered opinion, the finding
recorded by the trial Court that the death of deceased
Tiharu Patel was homicidal in nature, relying upon the
statement of Dr. B.P. Sai (P.W.-14) as well as the
postmortem report (Ex. P/28), is a finding of fact based on
evidence available on record which is neither perverse nor
contrary to the record. Moreover, the fact that death of the
deceased was homicidal in nature has also not been
seriously disputed by learned counsel for the appellants, as
such, we hereby affirm the finding recorded by the trial
Court and hold that the death of deceased Tiharu Patel was
indeed homicidal in nature.
17. The next question for consideration is, whether the
appellants are the perpetrators of the crime in question ? In
order to answer this question, we shall consider the case of
each of the appellants/accused persons one-by-one.
Case of Mohammad Bilal (A-1)
18. The instant case is based on circumstantial evidence as
there is no direct evidence available on record. As
contended by learned State counsel and as held by the trial
Court, prosecution has alleged and duly proved the motive
of offence. Appellant/accused Mohammad Bilal (A-1), who
was driver of Bolero vehicle owned by the deceased Tiharu
Patel, had illicit relationship with Gauri Patel (P.W.-9), wife
of the deceased, and six months prior to the date of the
incident, she had delivered a baby which had strengthened
the suspicions of the deceased and his family members due
to which dispute arose frequently between the deceased and
accused Mohammad Bilal (A-1). As such, motive of offence
against accused Mohammad Bilal (A-1) stands established.
19. It is the case of the prosecution, which has also been found
proved by the trial Court, that on the intervening night of
28-29/08/2014, appellant/accused Mohammad Bilal (A-1)
came to the Petrol Pump at about 08:30 PM where the
deceased used to work and on the pretext of giving party, he
took the deceased as well as the three co-accused persons
namely Mohammad Eliyas (A-2), Monu Thawait (A-3) and
Satish Bareth (A-4) to Mohan Dhaba, owned by Mohanlal
Chauhan (P.W.-8), wherein all of them ate dinner together
and then, the appellants/accused persons administered
sleeping pills in the cold drink/liqour served to the
deceased. After having the said drink, the deceased became
unconscious and all the appellants/accused persons took
him to Heerakund Dam and thereafter, strangulated him
with a plastic rope and in order to screen themselves, the
appellants/accused persons threw the shirt worn by the
deceased on the National Highway and drowned his dead
body into the dam.
20. A careful perusal of the statement of Abbas Ali (P.W.-2), who
is the owner of the Petrol Pump where the deceased used to
work, has clearly stated before the Court that on
28/08/2014, the deceased completed his duty from 02:00
PM to 08:00 PM and thereafter, left the Petrol Pump. On the
next day, i.e. 29/08/2014, when Nawdhalal Patel (P.W.-1),
elder brother of deceased, came to the Petrol Pump and
enquired about the deceased, Abbas Ali (P.W.-2) informed
him that after completing his work, he had left the Petrol
Pump for his home and on the advice of Abbas Ali (P.W.-2),
report had been lodged at the Police Station by Nawdhalal
Patel (P.W.-1).
21. Duleshwar Patel (P.W.-3), co-worker of the deceased, has
stated before the Court that on 28/08/2014, he and
deceased both had gone to the Petrol Pump at 02:00 PM
and after completing their work at about 08:00 PM, when he
asked the deceased to accompany him for going home, the
deceased refused stating that he will go to a party.
Thereafter, Duleshwar Patel (P.W-3) went to his home
whereas the deceased went to party.
22. Similarly, Kartikeshwar Patel (P.W.-11), who is also co-
worker of the deceased, has clearly stated before the Court
that on 28/08/2014, when he came to the Petrol Pump to
start his shift from 8:00 PM, at the time of meter closing,
deceased told Dileshwar Patel (P.W.-3) to go home. When
Kartikeshwar Patel (P.W.-11) asked the deceased whether
he will not go home, the deceased replied to him saying that
he is going to party with friends. Thereafter, Kartikeshwar
Patel (P.W.-11) has stated that after 10 minutes, when he
went to eat paan at the paan shop in front of Petrol Pump,
he saw that the Bolero vehicle owned by the deceased
stopped in front of Police Station and the driver Mohammad
Bilal (A-1) came out and was standing there, although he
could not see who was sitting inside the vehicle. Thereafter,
he returned to the Petrol Pump to continue his work.
23. Mohanlal Chauhan (P.W.-8), owner of Mohan Dhaba, has
clearly stated in his statement before the Court that on
28/08/2014 between 9 to 10 PM, all the four
appellants/accused persons along with one other person,
whom he does not know, had dinner together at the Dhaba.
24. Gauri Patel (P.W.-9), wife of the deceased, has stated that on
28/08/2014, when the deceased did not return home after
completing his shift at the Petrol Pump at 8 PM, she called
him on his mobile phone by taking the phone of a boy
residing in the village named Nanu, and when she asked the
deceased as to where he was, he had replied that he was at
the Dhaba and was having dinner and when she asked as
to who he was with, the deceased told her that he was with
Mohammad Bilal (A-1), Mohammad Eliyas (A-2), Satish
Bareth (A-4) and one other person whose name she could
not remember. After sometime, when he still did not return
home, she called him again but this time, his phone was
switched off.
25. After taking into consideration the testimony of the
aforesaid witnesses, it has clearly been established that on
the fateful day, Mohammad Bilal (A-1) had come to pick the
deceased from the Petrol Pump after the end of his shift in
the Bolero vehicle owned by him and thereafter, all the four
appellants/accused persons as well as the deceased had
gone to Mohan Dhaba, owned by Mohanlal Chauhan (P.W.-
8). When the deceased did not return home, FIR was lodged
by his brother Nawdhalal Patel (P.W.-1) and the wheels of
investigation started running and pursuant to the
memorandum statement of Mohammad Bilal (A-1), the dead
body of deceased Tiharu Patel was recovered from
Heerakund Dam vide Ex. P/30 and his t-shirt was
recovered from the National Highway vide Ex. P/15 and
plastic rope was recovered from the spot vide Ex. P/16.
26. It has been contended by learned counsel for the
appellants/accused persons that the memorandum
statement of the accused Mohammad Bilal (A-1) recorded
vide Ex. P/4 is inadmissible in evidence as the dead body of
the deceased has been recovered from Heerakund Dam
which was already known by the Police.
27. 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."
28. As such, it appears that Section 27 of the Evidence Act is
applicable only if the confessional statement relates
distinctly to the fact thereby discovered.
29. The Supreme Court in the matter of Asar Mohammad and
others v. State of U.P.4, 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 of 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 Emperor5
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
4 AIR 2018 SC 5264
5 AIR 1947 PC 67
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 Maharashtra 6, 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; 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."
30. In the matter of Suresh (supra) qua the situation where
recovery of a dead body is recovered when an accused
points out the place, Their Lordships of the Supreme Court
has pointed out three possibilities in such a circumstance
and held in paragraph 26 of the report as under :-
6 (2015) 1 SCC 253
"26. we too countenance three possibilities when
an accused points out the place where a dead
body or an incriminating material was concealed
without stating that it was concealed by himself.
One is that he himself would have concealed it.
Second is that he would have seen somebody else
concealing it. And the third is that he would have
been told by another person that it was
concealed there. But if the accused declines to
tell the criminal court that his knowledge about
the concealment was on account of one of the
last two possibilities the criminal court can
presume that it was concealed by the accused
himself. This is because the accused is the only
person who can offer the explanation as to how
else he came to know of such concealment and if
he chooses to refrain from telling the court as to
how else he came to know of it, the presumption
is a well-justified course to be adopted by the
criminal court that the concealment was made by
himself. Such an interpretation is not
inconsistent with the principle embodied in
Section 27 of the Evidence Act."
31. Following the principle laid down in Suresh (supra), in the
matter of Ningappa Yallappa Hosamani (supra), Their
Lordships of the Supreme Court have held that since dead
body of deceased was recovered in furtherance of voluntary
information furnished by the accused persons, the natural
presumption, in absence of explanation by them, was that it
was these two persons who had murdered the deceased and
buried his dead body. It has been held in paragraphs 22
and 23 as under :-
"22. The time at which this incident is stated to
have happened is at about 11 p.m. on 30-1-2005
and later the same persons were seen near the canal
with both the motorcycles. Therefore the story of
gunny bag containing the jaggery block is not
believable. As held by the courts below it must have
contained the dead body of Namadev. Taking into
consideration this factor, we find that the
prosecution has conclusively proved that Accused 1,
2, 6 and 7 had disposed of the dead body of
Namadev by putting it in a gunny bag and burying it
at a place near the canal, which was detected in
furtherance of the voluntary information furnished
by Accused 1 and 2.
23. It is also proved that the motorcycle of Namadev
was drowned in the river by the accused, which was
later recovered in furtherance of the voluntary
information furnished by Accused 6. As regards
Accused 1 and 2, since the dead body of Namadev
was recovered in furtherance of the voluntary
information furnished by them, the natural
presumption, in the absence of explanation by them
is that it was those two persons, who had murdered
Namadev and had buried the dead body."
32. Reverting to the facts of the present case in light of the
principle of law laid down by their Lordships of the Supreme
Court in Suresh (supra) which has been followed in
Ningappa Yallappa Hosamani (supra), it is quite vivid that
the memorandum statement of appellant/accused
Mohammad Bilal (A-1) was recorded at 8 PM on
29/08/2014 and the dead body of deceased Tiharu Patel
was recovered from Heerakund Dam at 08:45 AM on
30/08/2014 vide Ex. P/30, which has been proved by
Nawdhalal Patel (P.W.-1). Moreover, the shirt worn by the
deceased was also recovered from Bargarh National
Highway on 30/08/2014 at about 10 AM vide Ex. P/15,
which has also been duly proved by the seizure witnesses
namely Ramesh Kumar Patel (P.W.-7) and Lakeshwar Patel
(P.W.-5). As such, the dead body of the deceased as well as
the shirt worn by him, both were recovered pursuant to the
voluntary information furnished by Mohammad Bilal (A-1)
and they have duly been proved by prosecution witnesses.
33. The next incriminating circumstance pointed out by learned
counsel for the State is the FSL report dated 21/10/2014
which has though been brought on record but it has not
been exhibited by the trial Court. In the said report, the
article A which was sent for examination is viscera of the
deceased i.e. stomach and its contents in which nitrazepam
and ethyl alcohol have been found. Nitrazepam is a strong
sedative and an anticonvulsant.
34. Learned State counsel relies upon the FSL report dated
21/10/2014, but it has been strongly opposed by learned
counsel for the appellants on the ground that the copy of
the said FSL report has though been brought on record but
neither it has been exhibited by the trial Court nor it has
been put to question before the appellants in their
statement under Section 313 of CrPC, therefore, it cannot
be relied upon at this stage.
35. It is correct to say that though the FSL report has been
brought on record, but it has not been exhibited as a
document on behalf of the prosecution. The FSL report
dated 21/10/2014, which is a duly signed report by a
scientific expert from the State Forensic Science Laboratory,
is an evidence within the meaning of Section 293(1) of CrPC
and it may be used in trial by virtue of Section 293(1) of
CrPC, unless the said scientific expert is required to be
examined by virtue of Section 293(2) of CrPC, but the fact
remains that the copy of the said report has to be supplied
to the other side and it has to be put to the accused under
Section 313 of CrPC, which has not been done in the
present case.
36. It is well-settled law that any incriminating circumstance
against the accused has to be put to the accused in his
statement under Section 313 CrPC, otherwise, that piece of
evidence has to be excluded from consideration because the
accused did not have any chance to explain it. This
principle of law has been constantly held by the Supreme
Court in a catena of judgments including way back in the
year 1953 in the matter of Hate Singh Bhagat Singh v.
State of Madhya Pradesh7 wherein their Lordships of the
Supreme Court have held that any circumstance in respect
of which the accused was not examined under Section 342
of old CrPC, it cannot be used against him.
37. In the matter of Harijan Megha Jesha v. State of Gujarat 8,
the Supreme Court has held that the report of Serologist
cannot be used against the accused if it has not been put to
the accused in his statement under Section 342 of the old
CrPC, which states as under :-
"3.... In the first place, he stated that on the
personal search of the appellant, a chadi was found
which was blood stained and according to the report
of the serologist, it contained human blood.
Unfortunately, however, as this circumstance was
not put to the accused in his statement under
Section 342, the prosecution cannot be permitted to
rely on his statement in order to convict the
7 AIR 1953 SC 468
8 AIR 1979 SC 1566
appellant particularly after he had been acquitted by
the Trial Court."
38. The aforesaid principle of law laid down in Harijan Megha
Jesha (supra) has been followed with approval in the matter
of Sharad Birdhichand Sarda v. State of Maharashtra9.
39. However, at this stage, learned State counsel would submit
that the appellate Court can also put the said FSL report to
the appellants/accused persons and thereafter, it can be
relied upon, as held by the Supreme Court in the matter of
State (Delhi Administration) v. Dharampal 10 followed in
State of Punjab v. Swaran Singh11.
40. The aforesaid submission made by learned State counsel
deserves to be rejected as the trial Court has not relied
upon the FSL report as an incriminating circumstance
against any of the appellants/accused persons as the said
circumstance has not been put to them in their statements
under Section 313 of CrPC.
41. In the matter of Harijan Megha Jesha (supra), the Supreme
Court has declined to rely upon the Serologist's report as it
was not put to the accused under Section 313 of CrPC,
particularly, after the accused has been acquitted by the
trial Court.
42. In the instant case also, the trial Court did not rely upon
the FSL report dated 21/10/2014 to convict the
9 AIR 1984 SC 1622
10 (2001) 10 SCC 372
11 AIR 2005 SC 3114
appellants/accused persons for the offence in question and
in that view of the matter, since the FSL report has not been
put to any of the appellants/accused persons under Section
313 of CrPC and no explanation has been sought from any
of them, the said incriminating circumstance in the form of
FSL report dated 21/10/2014 cannot be read into evidence
as no opportunity of hearing has been afforded to the
appellants/accused persons and that too, in the appeals
preferred by the appellants/accused persons. As such, the
argument raised by learned State counsel to accept the FSL
report dated 21/10/2014 as an incriminating circumstance
against the appellants/accused persons is hereby rejected.
43. Reverting finally to the facts and circumstances of the
present case in light of the aforesaid legal discussion, we
are of the considered opinion that prosecution has proved
the motive of offence against the appellant/accused
Mohammad Bilal (A-1) beyond reasonable doubt and
learned trial Court is absolutely justified in relying upon the
memorandum statement of the appellant/accused
Mohammad Bilal (A-1) which has been found duly proved in
accordance with Section 27 of the Evidence Act pursuant to
which dead body of deceased Tiharu Patel was recovered
vide Ex. P/30 and the shirt worn by the deceased was also
recovered from Bargarh National Highway vide Ex. P/15
and thereby, convicting him for the aforesaid offences. As
such, appeal of Mohammad Bilal (A-1) deserves to be
dismissed.
Case of Mohammad Eliyas (A-2), Monu Thawait (A-3) and
Satish Bareth (A-4) :-
44. The three accused persons namely Mohammad Eliyas (A-2),
Monu Thawait (A-3) and Satish Bareth (A-4) have been
convicted by the trial Court with the aid of Section 30 of the
Evidence Act by recording the following finding in paragraph
68 of the impugned judgment, which states as under :-
"68. vkjksihx.k ds fo}ku vf/koDrkx.k ds rdZ ds ifjizs{; esa
mYys[kuh; gS fd bl izdj.k dh ifjfLFkfr;ka izR;{k lk{; dh ugh
gS] cfYd ifjfLFkfrtU; lk{; ij vk/kkfjr gSA vkjksihx.k ds e/;
lkekU; vk'k; dk xBu gqvk] bldk Hkh dksbZ izR;{k lk{; ugha gS]
cfYd Hkh bldk vuqeku ifjfLFkfr;ksa ds vk/kkj ij gh gksxkA
izdj.k ds voyksdu ls n`f"Vxr gS fd ?kVuk ds iwoZ vkjksih
eksgEen fcyky jkf= ds djhc 08%30 cts cksysjks okgu ds lkFk
lkjax<+ iqfyl pkSdh ds ikl ns[kk x;k] blds ckn lHkh vkjksihx.k
eksgu <kck esa ,d lkFk [kkuk [kk;sA vfHk;kstu] vkjksih eksgEen
fcyky }kjk dh x;h laLohd`fr dks lkfcr djus esa lQy jgk gS]
ftlesa mlus 'ks"k rhuksa vkjksihx.k eksgEen bfy;kl] lrh'k
cjsB ,oa eksuw FkokbZr dh Hkh lgHkkfxrk ds laca/k esa dFku fd;k
gSA ;gka Hkkjrh; lk{; vf/kfu;e 1972 dh /kkjk 30 ds mica/k ds
vkyksd esa vkjksih eksgEen fcyky }kjk dh x;h laLohd`fr 'ks"k
vkjksfi;ksa ds laca/k esa fopkj ;ksX; gSA vkjksih eksgEen fcyky
lkfgr 'ks"k rhuksa vkjksihx.k ?kVuk ds iwoZ eksgu <kck esa Hkkstu
fd;s rFkk ?kVuk dks vatke nsrs le; ,d lkFk ghjkdq.M Mse ij
Hkh mifLFkr Fks rks mDr ifjfLFkfr;ksa esa ;gh bafxr djrh gS fd
vkjksihx.k dk e`rd frgk: iVsy dh gR;k djus dk lkekU;
vk'k; FkkA "
45. At this stage, it would be appropriate to notice 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."
46. 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 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.
47. Section 30 of the Evidence Act came up for consideration
before their Lordships of the Supreme Court in Haricharan
Kurmi v. State of Bihar12 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 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
12 AIR 1964 SC 1184
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."
48. The principle of law laid down in Haricharan Kurmi (supra)
has been followed recently by the Supreme Court in
Dipakbhai Jagdishchandra Patel v. State of Gujarat and
another13. 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 Pradesh14, Nathu v. State of Uttar
Pradesh15 and Govt. of NCT of Delhi v. Jaspal Singh16.)
49. In the matter of Surinder Kumar Khanna v. Intelligence
Officer, Directorate of Revenue Intelligence17, 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
13 AIR 2019 SC 3363
14AIR 1952 SC 159
15AIR 1956 SC 56
16(2003) 10 SCC 586
17(2018) 8 SCC 271
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 Chuckerbutty18 a confession can only be
used to "lend assurance to other evidence against a
co-accused". In Periaswami Moopan, In re19 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.20 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
18ILR (1911) 38 Cal 559 at p. 588
191930 SCC OnLine Mad 86 : ILR (1931) 54 Mad 75 at p. 77
201949 SCC OnLine PC 12 : (1948-49) 76 IA 147 at p. 155
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
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.21
50. 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
21For example: State v. Nalini, (1999) 5 SCC 253, paras 424 and 704 : 1999 SCC (Cri) 691
confessional statement of co-accused is a very weak piece of
evidence, and 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 as well either ocular or
circumstantial. In the instant case, as noticed herein-above,
the trial Court has held the three appellants/accused
persons Mohammad Eliyas (A-2), Monu Thawait (A-3) and
Satish Bareth (A-4) guilty for the aforesaid offences merely
on the basis of the memorandum statement of
appellant/co-accused Mohammad Bilal (A-1). No other
evidence, ocular or circumstantial, has been established on
record to hold them guilty except the memorandum
statement of mohammad Bilal (A-1) whereas memorandum
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 trial Court is
absolutely unjustified in convicting the co-accused persons
namely Mohammad Eliyas (A-2), Monu Thawait (A-3) and
Satish Bareth (A-4) with the aid of Section 30 of the
Evidence Act relying upon the memorandum statement of
Mohammad Bilal (A-1) vide Ex. P/4. Accordingly, we are
unable to uphold the conviction of appellants/accused
persons Mohammad Eliyas (A-2), Monu Thawait (A-3) and
Satish Bareth (A-4) and we hereby set aside the impugned
judgment so far as it relates to these three
appellants/accused persons and they are acquitted of the
charges levelled against them. Since these three accused
persons are already on bail, they need not surrender.
However, their bail bonds shall remain in force for the
period of six months in view of Section 437A of CrPC.
Conclusion :-
51. Criminal Appeal No. 1561/2019 and 1647/2019 filed by the
appellants/accused persons Mohammad Eliyas (A-2) and
Satish Bareth (A-4) and Monu Thawait (A-3), respectively,
are hereby allowed and they are acquitted of the charges
levelled against them whereas Criminal Appeal No.
532/2016 filed by appellant/accused Mohammad Bilal (A-1)
stands dismissed.
Sd/- Sd/-
(Sanjay K. Agrawal) (Sachin Singh Rajput)
Judge Judge
Harneet
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Sheet
CRA No. 1561 of 2015
Mohammed Eliyas and Anr. Versus State of Chhattisgarh
CRA Nos. 1647/2015 & 532/2016
DB
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sachin Singh Rajput
21.10.2022 Criminal Appeals No. 1561/2019 and 1647/2019
mentioned in paragraph 51 of judgment dated 11/10/2022 be
read as Criminal Appeals No. 1561/2015 and 1647/2015.
Sd/- Sd/-
(Sanjay K. Agrawal)l) (Sachin Singh Rajput)
Judge Judge
Harneet
