Madhya Pradesh High Court
Dhanua Baiga vs The State Of Madhya Pradesh on 31 May, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 31 st OF MAY, 2024
CRIMINAL APPEAL No. 1240 of 2016
BETWEEN:-
DHANUA BAIGA S/O LATE SHRI MOHAN BAIGA, AGED
ABOUT 60 YEARS, VILLAGE SAJAHARA P.S. SHAHPUR
(MADHYA PRADESH)
.....APPELLANT
(BY MS. RENU GUPTA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH PS..
SHAHPUR DINDORI (MADHYA PRADESH)
.....RESPONDENTS
(BY MS. SWETA YADAV - PUBLIC PROSECUTOR)
This appeal coming on for hearing this day, Justice Vivek Agarwal
passed the following:
ORDER
This appeal is filed by the appellant being aggrieved of the judgment
dated 12.04.2016, passed by learned Second Additional Sessions Judge,
Dindori (M.P.), in Sessions Case No.60/2015, convicting appellant Dhanua
Baiga, for offence punishable under Sections 302 of Indian Penal Code
(hereinafter referred to as IPC for short) and sentenced to undergo R.I. for life
with fine of Rs.500/-, in default of fine amount, he is sentenced to 6 months R.I.
and under Section 201 IPC, he is sentenced to undergo R.I. for 7 years with
fine of Rs.500/-, in default of payment of fine amount, he is sentenced to
undergo R.I. for 6 months, respectively.
2. Smt. Renu Gupta, learned counsel for the appellant, submits that there were
five accused persons, out of which, four persons namely, Pancham Singh
Gond, Sukhru @ Sukru Baiga, Prakash Baiga and Awadhlal Baiga, were
acquitted and the present appellant Dhanua Baiga S/o Mohan Baiga, has been
convicted.
3. It is submitted that age of the appellant is about 70 years. He remained in
custody since 06.06.2015 till 12.04.2016 and then from 12.04.2016, till this
date. Thus, his total period of incarceration is about 9 years.
4. As per prosecution story, Sukhdeen Baiga (PW/2), on 03.06.2015, had
given an intimation to the Police Station Shahpur, District Dindori, through
Police Chowki Vikrampur, that dead body of a woman was lying in 'Nagdavan'
dam. On receiving such intimation, Chowki Incharge Vikrampur Shri Sandeep
Tomar (PW/16), entered in daily diary Sanha No.59, dated 03.06.2015,
Ex.P/43, and had reached the place of incidence i.e. 'Nagdavan' dam at Village
Jamgaon, where, at the instance of Sukhdeen Baiga (PW/2), Dehati Marg
Intimation, Ex.P/19, was recorded to the effect that he is resident of Village
Sajehra and his occupation is agriculture and labourer.
5. On 03.06.2015, at about 6:00 a.m., Kotwar of Village Jamgaon, namely,
Johan Lal Paraste (PW/4), had visited house of Sukhdeen Baiga (PW/2) and
informed that dead body of a woman was seen on a previous evening at
'Nagdavan' dam, at Village Jamgaon. He informed that the dead body was not
that of any of the villager of his Village Jamgaon, then his brother Chhotelal
(PW/7), Gulab Singh (PW/1) and Lokman Marko, visited 'Nagdavan' dam,
then they had seen dead body of a woman floating on water. They had entered
into the water and brought the dead body to the bank of the said dam, when
they found that the dead body was of his aunt Sampatiya Bai. Both the hands
of dead body were tied with a white 'Gamchha' and that 'Gamchha' was
having two stones tied on both of its sides.
6. Similarly, another 'Gamchha' was tied to her neck with which also a stone
was tied. A cloth rope was also tied with that 'Gamchha' and both feet of the
dead body were tied. Another 'Gamchha' was tied to the right leg with stones
on both the sides of 'Gamchha'. Intestine was coming out of the stomach and
she was wearing a red dotted 'Sari'.
7. Not getting any clue that how Sampatiya Bai died, 'Dehati Marg Intimation
No.0/2015, under Section 174 Cr.P.C. (Ex.P/19), was recorded, mentioning
that the time of incident is between 15:00 hours on 31.05.2015 and 18:00 hours
on 03.06.2015.
8. Sub Inspector Sandeep Tomar (PW/16), had prepared a spot Panchnama,
Ex.P/20, in presence of witneses Sukhdeen Baiga (PW/2) and Chhotelal
(PW/7), in regard to recovery of the dead body. After removing the stones
from the 'Gamchha', seizure memo (Ex.P/18), was prepared. Dead body was
identified by Sukhdeen (PW/2), Chhotelal (PW/7) and Nohar Lal.
9. Spot map (Ex.P/25), was prepared and photographs of the deceased were
taken, which are Ex.P/31 to Ex.P/33, clicked by Sub Inspector Sandeep Tomar
(PW/16).
10. Dead body was found to be completely decomposed. Dr. Kamlesh Raj
(PW/17) and Dr. Rakesh Tekam had conducted postmortem on the dead
body. They could not give any definite opinion due to decomposition and
putrification of the dead body.
11. It has come on record that during investigation, Akali Baiga (PW/5), was
examined. This witness deposed that on 31.05.2015, deceased Sampatiya Bai,
had purchased commodities from Village Society of Village Jamgaon, which
included 10 kilograms of wheat, which she had sold it the shop of one Ramji
Gupta (PW/12) for a sum of Rs.120/-, and had purchased a multi-power torch
for a sum of Rs.45/-. She had sold remaining commodities to Satyendra
Barman (PW/3), who manages a vegetables shop in front of Jamgaon Society.
She had not picked her ration and, thereafter, she had visited Ramkali Bai
(PW/8), on 31.05.2015 at about 7:00 p.m., to purchase chicken, but as
deceased Sampatiya Bai was not having adequate money, Ramkali Bai (PW/8),
refused to give her chicken.
12. It has come on record and also deposed by Ramkali Bai (PW/8), that
when deceased Sampatiya Bai had approached her, that time she was under
excessive influence of alcohol. Her relative appellant-Dhanuva, was also
present with her and he had said to Ramkali Bai (PW/8), that he will take
Sampatiya Bai along with him to the Village Sajahra.
13. Smt. Renu Gupta, learned counsel for the appellant submits that this case
is purely based on extra-judicial confession, which was made in front of Panch
of the village and i.e. a very weak piece of evidence. Therefore, conviction
recorded on the basis of extra-juridical confession being a weak piece of
evidence and also obtained on account of coercion, because relatives of
deceased Sampatiya Bai had refused to take food, which was prepared in
connection with the last rites ceremony of deceased Sampatiya Bai, confession
was extracted under coercion and that being so, the extra-judicial confession
cannot be made a basis for conviction.
14. Learned counsel for the appellant places reliance on the judgment of
Supreme Court of India in Criminal Appeal No.1962/2011, Prabhatbhai
Aatabhai Dabhi Vs. State of Gujrat, decided on 08.11.2023, to submit that
Supreme Court has held that the evidence of extra-judicial confession, normally,
is expected by the Court that evidence of the persons before whom extra-
judicial confession is allegedly made, must be of sterling quality.
15. It is submitted that Supreme Court has held that it is very difficult to
believe that the appellant/accused would have made confession before the real
brother and close acquaintance of the deceased. Thus, it is submitted that no
conviction could be recorded on the basis of extra- judicial confession.
16. Learned Public Prosecutor Ms. Sweta Yadav, supports the judgment and
submits that no indulgence is called for. It is pointed out that Ramkali Bai
(PW/8), is the witness of last seen and her evidence has remained unrebutted,
therefore, conviction be maintained.
17. PW/6, Ramdayal S/o Mansukh, deposed that during the month of 'Jeth'
Chhotelal (PW/7) had organized 'Tijra' of deceased Sampatiya Bai, where,
Titra (PW/10), Shiv Charan, Padma Singh (PW/11), Akali (PW/5), Chhotelal
(PW/7), Sukhdeen (PW/2) and he himself i.e. Ramdayal (PW/6), were present.
Aforementioned persons had asked Chhotelal (PW/7), that till proof of death of
Sampatiya Bai, is discovered, they will not accept food, then Dhanua i.e. the
present appellant, had informed that he killed Sampatiya Bai.
18. Chhotelal (PW/7), in para 4, deposed in the same terms as Ramdayal
(PW/6).
19. Titra Singh (PW/10), is also a witness of extra-judicial confession made
by Dhanua Baiga and his evidence in regard to extra-judicial confession has
remained unrebutted.
20. Shri Lalit Shrivastava, while examining this witness Titra Singh (PW/10),
in para 5 of the cross-examination obtained an admission that appellant-
Dhanuva alone had admitted at the house of Chhotelal (PW/7) that he had killed
Sampatiya Bai.
21. Thus, it is apparent that Titra Singh (PW/10), with a view to clear names
of other four co-accused extracted an admission against the appellant Dhanuva.
22. Padma Singh (PW/11), is also a witness of extra-judicial confession.
There is no proper cross-examination on this witness too. Ramdeen Gupta
(PW/12), is a person to whom Sampatiya Bai had sold commodities, purchased
by her from the Village Society. Narendra Singh Rajput (PW/15) is an
Investigating Officer of the case.
23. Ramkali Bai (PW/8), is the witness of last seen and her evidence has
remained unrebutted.
24. Sandeep Tomar (PW/16), Sub Inspector, is the person who had received
information in regard to dead body lying in 'Nagdavan' dam and a person in
whose presence dead body was recovered. He categorically deposed that
stones which were tied to the 'Gamchhas', which was tied to the head, were
carrying weight of 15-16 kilograms. Similarly, another 'Gamchha' which tied
both wrists of hands was tied with two stones measuring 14-14 kilograms. The
'Gamchha' which was tied to the ankle was having stones measuring 9-9
kilograms.
25. Dr. Kamlesh Raj (PW/17), gave an opinion that on the basis of neck,
hands and leg of the body being tied, death of Sampatiya Bai was homicidal.
26. It is true that theory of extra-judicial confession is a weak piece of
evidence as is held by Supreme Court in Prabhatbhai Aatabhai Dabhi
(supra), but the differentiating fact in that case from the present case is that
in Prabhatbhai Aatabhai Dabhi (supra), appellant had made an extra-judicial
confession that he had assaulted the deceased with stick, whereas, the case of
the prosecution as was made out, was that at the instance of the appellant, an
axe was recovered, which was the weapon of assault. The stick was not
recovered. Thus, there being no corroboration of the extra-judicial confession,
Supreme Court discarded that extra-judicial confession in Prabhatbhai
Aatabhai Dabhi (supra).
27. Supreme Court in Moorthy Vs. State of Tamil Naidu [2023 Live Law
(SC) 679], has held that Supreme Court in Pawan Kumar Chourasiya Vs.
State of Bihar [(1923) SCC Online SC 259:2023 Live Law (SC) 197, has
held that :
"5. As far as extra-judicial confession is concerned, the law is
well settled. Generally, it is a weak piece of evidence.
However, a conviction can be sustained on the basis of
extrajudicial confession provided that the confession is
proved to be voluntary and truthful. It should be free of
any inducement. The evidentiary value of such confession
also depends on the person to whom it is made. Going by
the natural course of human conduct, normally, a person
would confide about a crime committed by him only with
such a person in whom he has implicit faith. Normally, a
person would not make a confession to someone who is totally
a stranger to him. Moreover, the Court has to be satisfied with
the reliability of the confession keeping in view the
circumstances in which it is made. As a matter of rule,
corroboration is not required. However, if an extra-judicial
confession is corroborated by other evidence on record, it
acquires more credibility."
28. Supreme Court in Kalinga Vs. State of Karnataka [(2024) 4 SCC
735], has held that conviction of the appellant largely based on the extra judicial
confession, allegedly made by him before PW/1, is a weak type of evidence and
is generally used as a corroborative link to lend credibility to the other evidence
on record.
29. It is noted that in Chandrapal Vs. State of Chhattisgarh [(2023) 16
SCC 655], Supreme Court reiterated the evidentiary value of extra- judicial
confession in following terms :-
"15. The conviction of the appellant is largely based on the extra-
judicial confession allegedly made by him before PW/1. So far as an extra-
judicial confession is concerned, it is considered as a weak type of evidence
and is generally used as a corroborative link to lend credibility to the other
evidence on record. In Chandrapal V. State of Chhattisgarh (supra), this
Court reiterated the evidentiary value of an extra-judicial confession in the
following words : (SCC OnLine SC para 11) :
"11. At this juncture, it may be noted that as per Section 30
of the Evidence Act, when more persons than one are being
tried jointly for the same offence, and a confession made by
one of such persons affecting himself and some other of such
persons is proved, the court may take into consideration such
confession as against such other person as well as against
the person who makes such confession. However, this court
has consistently held that an ex extra-judicial confession is a
weak kind of evidence and unless it inspires confidence or is
fully corroborated by some other evidence of clinching
nature, ordinarily conviction for the offence of murder
should not be made only on the evidence of extra-judicial
confession. As held in State of M.P. V. Paltan Mallah , the
extra-judicial confession made by the co-accused could be
admitted in evidence only as a corroborative piece of
evidence. In absence of any substantive evidence against the
accused, the extra-judicial confession allegedly made by the
co-accused loses its significance and there cannot be any
conviction based on such extra-judicial confession of the co-
accused."
30. However, in the present case, there is evidence of last seen duly
corroborated by Ramkali Bai (PW/8). Ramkali Bai (PW/8) was approached by
deceased Sampatiya Bai along with appellant Dhanuva in the evening of
31.05.2015. She has admitted that Sampatiya Bai was drunk and she was
accompanied by Dhanuva Baiga. After 31.05.2015, Sampatiya Bai was not
seen. In the postmortem report, Ex.P/44, it is mentioned that death occurred
prior to 3-5 days. Postmortem was carried out on 03.06.2015 at 04:00 p.m.
31. Since deceased was last seen alive in the company of the deceased on
31.05.2015, then reasonable inference could be drawn against the accused and
onus can be shifted on the accused under Section 106 of the Evidence Act, as
held by Supreme Court in Nizam Vs. State of Rajasthan [(2016) 1 SCC 550].
32. When this evidence of last seen is examined in the light of the extra-
judicial confession, made by the appellant in front of Titra Singh (PW/10), at
the house of Chhotelal (PW/7), Padma Singh (PW/11), who was also present at
the house of Chhotelal (PW/7), are corroborated with the evidence of Chhotelal
(PW/7) and this witness has denied in his cross-examination that Dhanuva had
given extra judicial confession either under pressure or under the influence of
alcohol, his evidence is credible to correlate the evidence of last seen and there
being a motive in regard to the land of Sampatiya Bai, when all these aspects are
corroborated, then conviction of the appellant in view of the law laid down by
Supreme Court in Baskaran and another Vs. State of Tamil Nadu, [(2014)
5 SCC 765] and also in the light of the law laid down in Aftab Ahmad Ansari
alias Aftab Ansari Vs. State of West Bengal (AIR 2014 SC 2587) , cannot
be said to be illegal.
33. Hon'ble Supreme Court in Criminal Appeal Nos.1076-1077 of 2015,
Krishna Kumar and another Vs. The State of Haryana, in para 9 & 10,
held as under :-
"9. In the decision in State of UP v. Satish (2005) 3 SCC 114,
this Court held thus:
"The last seen theory comes into play where the time gap
between the point of time when the accused and the deceased
were seen last alive and then the deceased is found dead is so
small that possibility of any person other than the accused
being a part of the crime becomes impossible. It would be
difficult in some cases to positively establish that the deceased
was last seen with the accused when there is a long time gap
and the possibility of other person coming in between exists. In
the absence of any other positive evidence to conclude that the
accused and the deceased were last seen together, it would be
hazardous to come to a conclusion of guilt in those cases."
(Emphasis added)
10. This position was reiterated by this Court in Hatti Singh v.
State of Haryana (2007) 12 SCC 471. A survey on the
authorities on this issue, would reveal that this position is
being followed with alacrity. Bearing in mind the said position
regarding the applicability of the 'last seen' theory we will
have to examine the evidence of last seen available in the case
on hand."
34. In view of the aforesaid discussions and legal aspects, we do not find any
ground to interfere in the impugned judgment. As such, conviction of the
appellant is, hereby, maintained.
35. Accordingly, appeal fails and is dismissed.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
A.Praj.
