Chandrapal vs State of Chhattisgarh (Earlier M.P.)

HELD: 1.1 It may be stated that undisputedly the entire case of the prosecution rested on the circumstantial evidence, as there was no eye witness to the alleged incident. In order to convict an accused under Section 302 IPC, the court is required to first see as to whether the prosecution has proved the factum of homicidal death. The evidence of PW-13 doctor, who had carried out the post-mortem of the two deceased, would be most relevant in this regard. He had stated in his deposition before the court, inter alia, that on 12.12.1994, he had carried out the post-mortem of the two deceased. The dead bodies of both the deceased were in decomposed state; that the knot mark present on the neck of the deceased B was ante-mortem; that the cause of death appeared to be Asphyxia due to hanging; and that the death had taken place within 8 to 10 days and the nature of death was Suicidal. The said Doctor had stated similar facts for K. He could not express any opinion whether it was a homicidal death. In the cross- examination by counsel for the accused, he had categorically admitted that he did not find any symptom of homicidal death, nor he had opined in his report given on 12.12.1994 that the deaths of the deceased were homicidal. Of course, he had stated that on the basis of the report submitted on 30.04.1995, an inference could be drawn that the deaths could be homicidal deaths. [Para 7, 8][374-C; 375-E-G; 376-B-C]

1.2 The High Court in the impugned judgment did not consider at all the evidence of doctor to come to the conclusion whether the deaths were homicidal deaths, before confirming the conviction of the appellant for the offence under Section 302 IPC. Unfortunately, the Sessions Court also observed that the statement of doctor was not important because he had expressed an opinion which was neither beneficial to the prosecution nor to the defence. When the case of the prosecution rested on circumstantial evidence, it was imperative for the prosecution to prove beyond reasonable doubt that the deaths of the deceased were homicidal deaths and not suicidal, more particularly when the line of defence of the accused was that the B and K had committed suicide, and when doctor who had carried out their post-mortems had also opined that the nature of their deaths was Suicidal. [Para 9][376-C-F]

1.3 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, an 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. 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 coaccused loses its significance and there cannot be any conviction based on such extra judicial confession of the co-accused. [Para 11][377-A-D]

State of M.P. Through CBI & Ors. Vs. Paltan Mallah & Ors. (2005) 3 SCC 169 : [2005] (1) SCR 710;

Sahadevan & Anr. Vs. State of Tamil Nadu (2012) 6 SCC 403 : [2012] (4) SCR 366; Jagroop Singh Vs. State of Punjab (2012) 11 SCC 768 : [2012] (7) SCR 91; S.K. Yusuf Vs. State of West Bengal (2011) 11 SCC

754 : [2011] (8) SCR 83; Pancho Vs. State of Haryana (2011) 10 SCC 165 : [2011] (12) SCR 1173 – referred to.

1.4 In the instant case, it is true that the co- accused V had allegedly made self-inculpatory extra judicial confession before the PW-4, and had made extra judicial confession before the other witnesses i.e., PW-5, PW-6 and PW-7 stating, inter alia, that the other three accused had committed the murder and he-V was asked to assist them in disposing the dead bodies and concealing the evidence. Though the Sessions Court relying upon the said evidence of extra judicial confession of V convicted all the four accused, however, the High Court, considering the inconsistency between the said two extra judicial confession made by the coaccused V, acquitted the three accused i.e., B, M and V from the charges levelled against them, however considered the said extra judicial confession made by V as an incriminating circumstance against the appellant C for convicting him for the offences charged against him. If such weak piece of evidence of the co-accused V was not duly proved or found trustworthy for holding the other co-accused guilty of committing murder of the deceased B and K, the High Court could not have used the said evidence against the present appellant for the purpose of holding him guilty for the alleged offence. [Para 12][378-B-F]

1.5 As per the case of prosecution, PW-1 had seen the accused C calling the deceased K and taking him inside his house on the fateful night. Apart from the fact that the said D had not stated about the time or date when he had lastly seen K with C, even assuming that he had seen C calling K at his house when he was sitting at the premises of village panchayat, the said event had taken place ten days prior to the day when the dead bodies of the deceased were found. The time gap between the two incidentsthe day when D saw C calling K at his house and the day K’s dead body was found being quite big, it is difficult to connect the appellant with the alleged crime, more particularly when there is no other clinching and cogent evidence produced by the prosecution. [Para 13][378-F-H; 379-A]

1.6 In order to convict an accused under Section 302 IPC the first and foremost aspect to be proved by prosecution is the factum of homicidal death. If the evidence of prosecution falls short of proof of homicidal death of the deceased, and if the possibility of suicidal death could not be ruled out, in the opinion of this court, the appellant- accused could not have been convicted merely on the basis of the theory of “Last seen together”. [Para 18][379-F-G]

1.7 Having regard to the totality of evidence on record, the High Court committed gross error in convicting the appellantaccused for the alleged charge of 302 read with 34 of IPC, relying upon a very weak kind of evidence of extra judicial confession allegedly made by the co-accused V, and relying upon the theory of “Last seen together” propounded by the PW-1. It is also significant to note that no evidence worth the name as to how and by whom the deceased B was allegedly murdered was produced by the prosecution. Under the circumstances, it is required to be held that the prosecution had miserably failed to bring home the charges levelled against the appellant-accused beyond reasonable doubt. The suspicion howsoever strong cannot take place of proof.The appellant is acquitted from the charges levelled against him. [Paras 19, 20][379-G; 380-A-C] Shivaji Sahabrao Bobade & Anr. Vs. State of

Maharashtra (1973) 2 SCC 793 : [1974] (1) SCR 489; Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116 : [1985] (1) SCR 88; Bodhraj & Ors. Vs. State of Jammu and Kashmir (2002) 8 SCC 45 : [2002] (2) Suppl. SCR 67; Jaswant Gir Vs. State of Punjab (2005) 12 SCC 438; Arjun Marik & Ors. Vs. State of Bihar 1994 Supp (2) SCC 372 : [1994] (2) SCR 265 – referred to.