1982 Supreme(MP) 141

G. G. Sohani and K. N. Shukla, JJ.
Harakchand v. State of M.P.
Cr. A. No 209 of 1980 (I); Decided on 26-2-1982.

Headnote:(1) Evidence Act, 1872 -- S. 24 - extra -- Judicial confession -- when not reliable --witnesses not disclosing such confession before investigating officer -- relations with accused also strained -- confession not reliable.

        (2) Evidence Act, 1872 -- S. 32 -- deceased statement about strained relationship with accused even before one year -- not admissible as dying declaration.

        (3) Evidence Act, 1872 - Ss. 8 and 114 -- subsequent conduct of accused adverse inference when cannot be drawn -- burnt clothes removed from deceased -- other persons also residing with deceased -- adverse inference cannot he drawn.

        (4) Evidence Act. 1872 -- S. 3 -- circumstantial evidence -- strong link not proved -- not sufficient for conviction.

        (5) Penal Code, 1860 -- S. 302 -- conviction hosed on circumstantial evidence -- no strong link proved -- conviction cannot be based on strong suspicion.

        Deceased Bhuribai was the mother of the appellant. She died as a result of burn injuries on the night intervening 7tb and 8th December 1979.

        There was no direct evidence to implicate the appellant. The main pieces of circumstantial evidence relied upon by the Court below were :-

        (l) Relations between the appellant and the deceased were strained;

        (2) Appellant had an opportunity of committing the murder;

        (3) Conduct of the appellant after the incident; and

        (4) Extra-judicial confessions made by the appellant to witnesses Nandaji (PW 2) and Ramgopal (P -N 3).

        Held : As regards strained relationship between the appellant and the deceased, prosecution examined Nandaji (PW 2) and Mishrilal (PW 4) these witnesses stated that the deceased use to tell them that the appellant wanted to take away her ornaments and on her refusal assaulted her. These incidents according to the witnesses had taken place nearly a year or so before the present incident. The statement of the deceased to these witnesses was not admissible in evidence under section 32 of the Evidence Act. Further the testimony of these witnesses is not free from suspicion. Nandaji had admitted that his relations with the appellant were inimical and there was criminal proceeding between them earlier. The conduct of these witnesses was also unsatisfactory. Both these witnesses had stated in Court that appellant has confessed })¢fore them that he had burnt his mother. However, these witnesses did not give out this story before the Investigating Officer even though they were present when the inquest report was prepared by the Investigation Officer.

        They for the first time gave out the story of enmity and appellants confession after two days i. e. on 10-12 1979 though they were present in the Village since 8-12-79. It is thus clear that the evidence about the friction between the appellant and the deceased for the ask of ornaments was not satisfactory.

        As regards the question of opportunity available to the appellant, it was cleat that the deceased and the appellant were not the only persons Li"Ving in the house on the night of the incident. Appellants wife and children also Li"Ved in the same house. Nandaji (PW 2) stated that when he reached appellants house, his wife was present there thus it could not be said that the appellant and the deceased were the only persons residing in the house when the deceased died as a result of the burn injuries.

        Prosecution tried to draw an adverse inference from the fact that the appellant did not inform his servant Dashrath (PW 8) about the death of his mother when Dashrath came for work in the morning. However, in cross-examination (Paragraph 10) this witness stated that when be came to appellants house in the morning appellants son Shantilal asked him to go to the field to fetch fuel. Moreover by itself this conduct of the appellant in asking his servant to do and bring fuel and not informing about the death of his mother is not an incriminating circumstance which can be used against him for drawing an inference of guilt. Prosecution also relied on the fact that the appellant had removed the burnt clothes from the body of the deceased and had covered it with a new cloth. The accused did Dot furnish any explanation for this but the fact that burnt clothes were removed could not be considered as a circumstance for inferring the offence of murder against the appellant. There was no proof that the clothes had been removed by the appellant himself and as already observed there were other members also in the house who could also remove the clothes from the person of the deceased. Removing of burnt clothes and covering the body with another cloth will not necessarily lead to an inference that this was done to cover up a crime. Some times a person may act in peculiar manner out of the fear of false implication also and, therefore, such conduct even if considered to be irrational will not warrant an inference of guilt.

        The last circumstances relied on by the learned Sessions Judge was the evidence of extra-judicial confession. witnesses examined for the purpose were PW 2 Nandaji, PW 3 Ramgopal and PW 4 Mishrilal. As already observed relations between these witnesses and the appellant were happy. Further these witnesses did not disclose about the confession by the appellant before the investigating officer till 10-12-79 when admittedly they were present at the time of the inquest on 8-12-79. These witnesses therefore, could not be relied on. The trial Court did not give sufficient consideration to the aforesaid infirmities in the testimony of these witnesses It will appear from the perusal of the statements of the prosecution witnesses that the appellant was generally disliked by the residents of the village and this could be a motive to prompt these witnesses to falsely implicate the appellant and get rid of him. Such evidence of extra-judicial confession cannot be given much weight.

        It is true that the deceased died as a result of burn injuries in the house itself and the appellant was unable to explain how this happened when he was also present in the house. This might raise a strong suspicion against him, but the various circumstances relied on by the prosecution did not provide a strong link to prove the charge of murder against the appellant beyond reasonable doubt. Appeal allowed.