Relevant Extract of Chhattisgarh High Court Judgment
8. It is equally settled that circumstantial evidence in the nature of extra judicial confession is always considered to be a weak type of evidence, therefore, conviction on such evidence can form basis if it passes the test of credibility and the Court is fully convinced that the extra judicial confession is made voluntary in fit state of mind without being any coercion or duress. The extra judicial confession must also be clear, unambiguous to convey that the accused is the perpetrator of the crime.
9. Turning back to the evidence available in the case in hand, the evidence of extra judicial confession has been putforth in the statements of PW-2 Rameshwar, PW-3 Firat Bai, PW-5 Narottam Das and PW-6 Dauram. PW-2 Rameshwar and PW-3 Firat Bai are the parents of the deceased. In para 2 of his statement, PW-2 Rameshwar would state that the appellant has confessed to have committed the crime in the Police Station where he was also present. PW-3 Firat Bai would state in para 2 of her statement that the appellant confessed to her at the time when she had gone to attend the 10th day ceremony after the death of her daughter Manas Bai. Strangely, both the witnesses did not inform the Police about the extra judicial confession, even though in para 11 of the statement of Investigating Officer PW-22 Guljar Khan, he has admitted that prior to the extra judicial confession made by the accused on 10.03.2004, the parents of the deceased had visited the Police Station on 3-4 occasions.
10. The next set of witnesses to the extra judicial confession are PW-5 Narottam Das and PW-6 Dauram. In para 2 of his statement, PW-5 Narottam Das would depose that immediately on the next date of the incident the Police had summoned the appellant in the Police Station, where the appellant informed the Police in his presence that he had a meeting with Narottam Das, on the date of incident, after committing murder of the deceased. Similarly, PW-6 Dauram would depose in para 1 of his statement that the appellant confessed to him regarding commission of murder on the date of incident itself. However, the IO PW-22 Guljar Khan would depose in para 10 of his statement that before appellant’s extra judicial confession on 10.03.2004, he had no clue or evidence of appellant’s involvement in the crime, although in the next breath he says that before 10.03.2004, Narottam Vaishnav, Khikhram and Chaitram had informed him about the presence of the appellant at the place of occurrence on the date of incident. If this statement of the IO is correct, PW-5 Narottam Das was interrogated before 10.03.2004, yet the IO says that he had no clue about the appellant’s involvement before 10.03.2004, meaning thereby that during interrogation of the Police prior to 10.03.2004, neither Narottam Das (PW-5) nor Dauram (PW-6) ever informed the IO about the extra judicial confession made by the appellant.
11. In addition to the above, there is enough oral evidence on record that when the Police was clueless about the perpetrator of the crime, a writ petition was filed in the High Court and when notice in the writ petition was issued, the appellant, his brother Jagdish Kashyap PW-1 and PW-6 Dauram were summoned and detained for investigation in the Police Station. There is oral evidence to the effect that the Police used third degree methods to extract the extra judicial confession from the appellant. There is also evidence to the effect that when the appellant confessed to the Police about the commission of crime, the Police summoned the villagers, informed them about the confession and directed the appellant to state before the villagers all those things which he had confessed before the Police. In our considered view, such manner of extracting extra judicial confession is neither desirable nor should be adopted by the Police. The extra judicial confession is neither voluntary nor truthful. It being a result of pressure exerted by the Police, probably to have an answer in the writ petition, the same cannot be relied upon to convict the appellant.
12. Evidence of the appellant’s presence near the place of occurrence as stated by PW-10 Badri Singh and PW-14 Chaitram Sahu is of no assistance to the prosecution, because the place of occurrence i.e. the agricultural field of PW-6 Dauram is adjoining to the agricultural field of the appellant himself. It is very natural for a cultivator to attend his agricultural field and there was nothing abnormal about it, even if the statement of these two witnesses is believed. Despite this evidence, it cannot be concluded that the appellant was the perpetrator of the crime, merely on the basis that he was seen by somebody at his agricultural field or near to it on the date of occurrence. To convict a person for committing murder, the evidence has to be of clinching nature pointing only towards the guilt of the accused to the exclusion of all other hypothesis of his innocence. There is absolute lack of such circumstantial evidence in the case in hand. The other piece of circumstantial evidence is of appellant’s memorandum statement vide Ex-P-7 and consequent recovery of the golden ear ring of the deceased vide Ex-P-8. Even if this memorandum and seizure is taken to be proved, the IO PW-22 Guljar Khan has admitted in para 15 of his statement that the golden ear ring was never put to identification to prove that it belongs to the deceased or that she was wearing the same at the time of incidence. Since the parents of the deceased have been examined, the ear ring could have been put to identification. The IO having not done so, this piece of evidence cannot be considered as a link in the chain of circumstantial evidence.