SHORT NOTE
CHHATTISGARH HIGH COURT
Rajeev Gupta C.J. and Sunil Kumar Sinha, J.
Rambharosh @ Konda —Appellant
versus
State of M.P. (Now State of
Chhattisgarh) —Respondent
Criminal Appeal No. 2012 of 1996
Decided on 22.8.2012

IMPORTANT POINT
The absence of the signatures or the thumb impression of an accused on the disclosure statement recorded under Section 27 of the Evidence Act detracts materially from the authenticity and the reliability of the disclosure statement.

Headnote:(i) Indian Penal Code, 1860—Sections 302 and 201—Appellant convicted for committing murder of his aunt—Conviction was based on extra-judicial confession made before PW1 and 2, dead body of deceased seized from ghurwa on discovery statement given by appellant and appellant had motive as he would be succeeding the properties of deceased—Appellant himself had given confessional FIR statement in police station—Appeal—Confessional first information report could not be read against appellant—Extra-judicial confession evidence was unreliable—Ghurwas wherefrom dead body was recovered was on open place and recovery could not be attributed to appellant alone—Motive was also not duly proved—Conviction was liable to be set aside.

       Held: So far as the argument regarding confessional First Information Report is concerned, the Apex Court held in the matter of Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119 that “The first information report recorded under Section 154, Criminal P.C. as such is not substantive evidence, but may be used to corroborate the informant under Section 157 of the Evidence Act or to contradict him under Section 145 of the Act, if the informant is called as a witness. Where the accused himself gives the first information, the fact of his giving the information is admissible against him as evidence of his conduct under Section 8 of the Evidence Act. If the information is non-confessional, it is admissible against the accused as an admission under Section 21 of the Evidence Act and is relevant. But a confessional first information report by the accused to a police officer cannot be used against him in view of Section 25 of the Evidence Act.” The Apex Court also relied on the decisions rendered in the matters of Faddi v. State of Madhya Pradesh, AIR 1964 SC 1850; Nisar Ali v. State of U.P., AIR 1957 SC 366 and Dal Singh v. King Emperor, AIR 1917 PC 25. Therefore, the confessional first information report cannot be read against the appellant.

       Garibdas (PW1) and Vijay Kumar (PW2) are the witnesses of extra-judicial confession. Garibdas (PW1) was also a witness of inquest and seizure. He did not depose about the extra-judicial confession allegedly made by the appellant before him. He was declared hostile and was cross-examined by the Public Prosecutor. In cross-examination, Para 8, though he admitted that the appellant had made extra-judicial confession before him, but he added that the appellant said all this in the police station. Vijay Kumar (PW2) deposed that on one day in the morning, the appellant came to his house and told that he has killed his aunt (deceased). At that time Sudhiyarin Bai (PW3), Garibdas (PW1), Ghasiya Ram (PW4) and Chhedilal (PW6) etc., 7-8 persons were present there. The appellant told that he had killed his aunt by assaulting her by stone. In Para 3 in examination-in-chief, he deposed that before her death, the deceased used to sleep in the night in the house of Sudhiyarin Bai (PW3). His 161 Cr.P.C. statement was recorded on 14.2.95. In his 161 Cr.P.C. statement, he did not depose about the extra-judicial confession made by the appellant before him. On the contrary, he gave story that while the deceased was missing, Daroga had visited his village in relation to some other case and it was told to him, then Daroga said him for sending the appellant to lodge a report. Sudhiyarin Bai (PW3), Ghasiya Ram (PW4) and Chhedilal (PW6) have also not supported the facts of extra-judicial confession allegedly made by the appellant before Vijay Kumar (PW2).

       In appreciation of evidence of Garibdas (PW1) and Vijay Kumar (PW2), we find that the fact of extra-judicial confession made before Vijay Kumar (PW2) was an omission in his diary statement and Garibdas (PW1) did not prove it as he stated that the appellant told all this in police station. It has been laid down in many cases by the Supreme Court that if the evidence about extra-judicial confession comes from the mouth of witness/witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility if it passes the test, the extra-judicial confession can be accepted and can be the basis of a conviction. In light of the above facts and circumstances of the case, we find that the learned Sessions Judge erred in holding that it was proved that the appellant made extra-judicial confession before Garibdas (PW1) and Vijay Kumar (PW2). We are of the view that the fact of

       extra-judicial confession was not proved beyond all reasonable doubts.

       So far as circumstance of memorandum statement is concerned, according to the prosecution the memorandum (Ex.P5) was recorded on 14.2.95. In Ex.P5, nothing has been mentioned at the space left for endorsement of time of memorandum. There is a clear manipulation by different ball-pen in the last portion of memorandum and it has been added that (matter in other language) Apart from the above, this discovery statement does not bear the signature of the appellant. The recovery panchnama (Ex.P14), consequent to the above memorandum (discovery statement) also does not bear time. It also does not bear the signature of the appellant. Garibdas (PW1) witness of memorandum has turned hostile. He has not proved either discovery statement or the recovery of the dead body. All this creates doubt on the recovery of the dead body at the instance of the appellant. The other witness of discovery statement is Ghasiya Ram (PW4). He has deposed about the memorandum and recovery of the dead body and he also deposed about seizure of cloths and stone.

       In Jackaran Singh v. State of Punjab, AIR 1995 SC 2345, the Supreme Court held that “The absence of the signatures or the thumb impression of an accused on the disclosure statement recorded under Section 27 of the Evidence Act detracts materially from the authenticity and the reliability of the disclosure statement.” Therefore, the discovery statement made by the appellant and the seizure in consequence thereof appears to be doubtful.

       As per map (Ex.P11), the ghurwa was situated at a distance of 113 feet from the house of the appellant. It was at an open place and there is no evidence that it was in exclusive possession of the appellant. Therefore, it was accessible to other persons also. In this situation, recovery of the dead body from the ghurwa cannot be attributed to the appellant. The alleged seizure of blood-stained cloths and stone at the instance of the appellant would also not assume importance because there is no F.S.L. report to show that the blood like stains found over these articles were in fact blood much less human blood.

       Mr. Arvind Dubey, learned Panel Lawyer, has argued that the appellant alone had motive to commit murder of the deceased as he would be succeeding the entire property of the deceased. Significance of relevancy of motive would primarily depend upon the facts and circumstances of a given case. Like any other circumstance, the circumstance of motive has to be proved beyond all reasonable doubts and it should be sufficient for committing an offence like murder. On appreciation of evidence on record, we find that the evidence of ‘motive’ is shaky. Even if it is held that the appellant had motive to commit murder of the deceased, in light of the above discussion motive alone would not be sufficient to convict the appellant under Sections 302 & 201 IPC. (Paras 6 to 12)

       (ii) Evidence Act, 1872—Section 27—Discovery statement—Absence of signatures or thumb impression of accused on the disclosure statement detracts materially from the authenticity and reliability of such statement.

       Held: In Jackaran Singh v. State of Punjab, AIR 1995 SC 2345, the Supreme Court held that “The absence of the signatures or the thumb impression of an accused on the disclosure statement recorded under Section 27 of the Evidence Act detracts materially from the authenticity and the reliability of the disclosure statement.” Therefore, the discovery statement made by the appellant and the seizure in consequence thereof appears to be doubtful. (Para 10)

       Result: Appeal allowed.