LONG NOTE
CHHATTISGARH HIGH COURT
Sunil Kumar Sinha and Radha Shyam Sharma, JJ.
Meghanath —Appellant
versus
State of Chhattisgarh —Respondent
Criminal Appeal No. 1230 of 2002 and Criminal Appeal No. 73 of 2009
Decided on 19.2.2013

IMPORTANT POINT
Statement of one of the accused recorded under Section 313 CrPC admitting material parts of prosecution case cannot be used against other co-accused.

Headnote:(i) Indian Penal Code, 1860—Sections 302/34, 318/34—Prosecution of appellant accused persons for aborting the fetus of A1 and thereafter brining it—Conviction by trial Court —Appeals against conviction—No eyewitness to incident—Case based on circumstantial evidence—A1 made extra judicial confession in village panchayat and she also confessed in her statement recorded under Section 313 CrPC that A2 administered some medicine upon her due to which she delivered the child and later on said child was committed to death by him and buried—However it was not proved beyond reasonable doubt that A1 had confessed before panchayat taking name of A2 as assailant of her newly born child—Again statement of one of accused recorded under Section 313 CrPC admitting material parts of prosecution case cannot be used against other co-accused—Hence confessional statement of A1 under Section 313 CrPC held to be not a substantive evidence against appellant—There being no substantive evidence against A2, conviction of A2 based upon confessional statement of A1 could not be sustained.

       Held: In appreciation of the evidence of these witnesses, we find that none of the independent witness i.e. Leelaram (PW15), Punnilal (PW16) and Manharan (PW17), had deposed that Ganga Bai (A1) had also stated in the Panchayat that her newly born child was committed to death by Meghanath (A2) and Meghanath (A2) had buried the child in the mud of pethu. Manharan (PW17) had lodged the FIR. (Ex.-P8) and the merg intimation (Ex. P12). They were the first hand information to the police. In these two documents also, there is no mention about the fact that Ganga Bai (A1) had confessed before the Panchayat that her child was committed to death by Meghanath (A2). We note that the first information report was registered against Ganga Bai (A1) only and the name of Meghanath (A2) was missing in the FIR (Ex.P8). This omission was fatal to the prosecution. If appellant- Ganga Bai (A1) would have told the facts in Panchayat that her child was committed to death by Meghanath (A2), these facts must have been mentioned in the FIR. (Ex.P8) and merg intimation (Ex.P12) which were lodged by Manharan (PW17) who admittedly had attended the village Panchayat. We are of the view that in the above facts and circumstances of the case, the evidence of Dhanau (PW9) does not assume much importance and it was not proved beyond all reasonable doubt that Ganga Bai (A1),. had confessed before the Panchayat taking the name of Meghanath (A2) as the assailant of her newly born child.

        On perusal of the above judgments, it would appear that though conviction per se cannot be based upon statement made under Section 313 Cr.P.C., but the contents of the above statement which supports the case of the prosecution can be used against the accused for rendering conviction. This indicates about the accused who himself has made the statement. But the legal position with relation to co-accused would be different. In Jitender Kumar v. State of Haryana it was held that statement of one of the accused recorded under Section 313 Cr.P.C., admitting material parts of prosecution case cannot be used against other co-accused. However, statement having become part of judicial record could be used against the accused himself for convicting him, if prosecution had proved its case in accordance with law.

       In the instant case, the statement of appellant Ganga Bai (A1) would show that she had made allegations against appellant- Meghanath (A2) in so much that Meghanath (A2) has committed murder of her child. This cannot be the sole basis for conviction of Meghanath (A2). However, the legal consequence of the above material has to be looked into in light of the procedural law.

       Now let us talk about the value of the confession of a co-accused.

       Confessions of co-accused are not evidence as defined in Section 3 and no conviction can be founded thereon, but if there was other evidence on which a conviction can be based, they can be referred to as lending assurance to that conclusion and for fortifying it (Vide: Nathu v. State of Uttar Pradesh4 and Kashmira Singh v. State of Madhya Pradesh.5

       In State of M.P. Through CBI and Others v. Paltan Mallah and Others, it was held that extra-judicial confession of co-accused could be admitted in evidence only as a corroborative piece of evidence. In the absence of any substantive evidence against the accused, extra-judicial confession made by co-accused loses its significance and there cannot be any conviction based on it.

        In the instant case, we have not believed the extra-judicial confession made by appellant- Ganga Bai (A1). About her confessional statement in her examination under Section 313 Cr.P.C. we may only say that her such confessional statement would not be substantive evidence against the present appellant. In the instant case, we find no substantive evidence against appellant- Meghanath (A2). They are only of corroborative nature. Therefore, conviction of Meghnath (A2) based upon confessional statement of Ganga Bai (A1) cannot be sustained.

       (ii) Indian Penal Code, 1860—Sections 302/34, 318/34—Prosecution of appellant accused persons for aborting the fetus of A1 and thereafter burying it—Conviction by trial Court—Appeals against conviction—No evidence on record to show that A1 had participated in commission of murder of her newly born child—Nothing more could be attributed to A1 than that she showed the place dead body of her infant child was lying—Only on this evidence, A1 could not be convicted under Section 302/34 IPC —At the most, A1 would be convicted under Section 318 IPC for concealment of birth by secret disposal of dead body—Appeal partly allowed.

       Held: There is no evidence on record to show that Ganga Bai (A1) had participated in commission of murder of her newly born child. The evidence on record would show that she had delivered a male child which was alive at the time of delivery and the dead body of the said child was recovered from the pethu. The case of the prosecution is that Ganga Bai (A1) had shown that place where the dead body of the child was lying. There is no evidence to show as to who threw the dead body at that place. It is not a case that the dead body of the infant was recovered on the discovery made by Ganga Bai (A1). Therefore, nothing more can be attributed to Ganga Bai (A1) than that she showed the place where the dead body of her infant child was lying. Only on this evidence, Ganga Bai (A1) cannot be convicted under Section 302/34 IPC .

       The confessional statement of Ganga Bai (A1) and pointing out the place of the dead body would show that any how she had knowledge that the dead body of her child was lying at a particular place and that place was shown to the villagers after the Panchayat. Section 318 IPC is titled as concealment of birth by secret disposal of dead body. It provides that whoever, by secretly burying or otherwise disposing of the dead body of a child, whether such child die before or after or during its birth, intentionally conceals or endeavours to conceal the birth of such child, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. It is a case in which at the most Ganga Bai (A1) has concealed the birth of child by secret disposal of the dead body. We are of the view that in the above facts and circumstances of the case, Ganga Bai (A1) would be liable for punishment under Section 318 IPC.

       For the foregoing reasons, the appeal is partly allowed. The conviction and sentences awarded to appellant Meghanath (A2) under Sections 302/34 and 318/34 IPC are set aside. He is acquitted of the charges framed against him. It is stated that appellant Meghanath (A2) is on bail since 13.8.2008. His bail bonds are discharged. The conviction and sentences awarded to appellant- Ganga Bai (A1) under Section 302/34 IPC are also set aside. She is acquitted of the above charges. However her conviction under Section 318/34 IPC is altered to Section 318 IPC simplicitor and the sentence awarded under this Section is maintained. It is stated that appellant Ganga Bai (A1) is in jail since 24.1.2002. Thus she has already undergone the sentence awarded to her. She be released forthwith, if not required in any other case.