Lokesh @ Ballu Tiwari vs The State Of Chhattisgarh

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

CRA No. 800 of 2017

Lokesh @ Ballu Tiwari S/o Shri Bhagwati Prasad Tiwari, aged about 45 years, R/o village Kanpa, Chowki Khandsara, Police Station and District Bemetara, Chhattisgarh.

---- Appellant

Versus

State of Chhattisgarh, through the Officer in Charge of Police Station - Bemetara, District Bemetara, Chhattisgarh.

---- Respondent

For Appellant :- Mr. Roop Naik, Advocate. For State :- Mr. S. S. Baghel, Dy. Govt. Advocate.

Division Bench

Hon'ble Shri Justice Sanjay K. Agrawal &

Hon'ble Shri Justice Sanjay Kumar Jaiswal

Judgment On Board (30.01.2024)

Sanjay Kumar Jaiswal, J

1. In this Criminal Appeal presented under Section 374 (2) of the Code

of Criminal Procedure, 1973, the judgment dated 09.02.2017

passed by the Sessions Judge, Bemetara, District Bemetara,

Chhattisgarh in Session Case No.09/2013 "Chhattisgarh State

against Lokesh alias Ballu Tiwari" has been challenged, under

which, the appellant/accused Lokesh alias Ballu Tiwari has been

convicted for the offense punishable under Section 302 of the Neutral Citation 2024:CGHC:3397-DB

2 CRA No. 800 of 2017 Indian Penal Code and sentenced to undergo life imprisonment and

pay fine of Rs 1,000/-(one thousand rupees), in case of non-

payment of fine, to undergo additional rigorous imprisonment for

six months.

2. It is an undisputed fact that appellant Lokesh alias Ballu Tiwari is

the husband of deceased Uma Tiwari, who have three children of

whom Rinki Tiwari (PW-4) is the eldest daughter and other children

are Kumari Namrata alias Chhoti (PW-6) and Kumari Bhuri alias

Rajnikanta (PW-7). Appellant's brother Lalit Tiwari (PW-15) resided

in Raipur. The appellant lived with his wife Uma Tiwari in village -

Kanpa, district - Bemetara.

3. The case of prosecution, in nutshell, is that the Appellant always

doubted the character of his wife and used to argue and fight with

her. Therefore, Uma Tiwari had sent her elder daughter Rinki Tiwari

(PW-4) to her uncle Lalit Tiwari (PW-15) in Raipur. On the date of

incident i.e. 20/11/2012, at around 10.00 a.m., the appellant killed

his wife Uma Tiwari in the house by an axe. Then he went to Raipur

and made an extra-judicial confession in front of his brother Lalit

Tiwari (PW-15) and his elder daughter Rinki Tiwari (PW-4) that he

had murdered his wife Uma Tiwari. Thereafter, on the information

of Village Kotwar Ghasiya Ram (PW-2) in Police Station - Bemetara,

Marg - Intimation was recorded vide Ex. P-5, Panchnama of dead

body was conducted vide Ex. P-2 and First Information Report was

registered vide Ex. P-6. Pursuant to the memorandum statement of

appellant Ex. P-13, an axe and the clothes of appellant were Neutral Citation 2024:CGHC:3397-DB

3 CRA No. 800 of 2017

recovered from him and sent to the State Forensic Science

Laboratory for chemical examination. The axe and the clothes on

which blood was found could not be determined as to whether it

was human blood or not. The Police completed the remaining

investigation and filed the final report.

4. A total of 23 witnesses were examined by the prosecution in

support of its case and 29 documents were exhibited along with

photographs from Article-A/1 to Article-A/5. No defense witness

has been examined on behalf of the appellant.

5. The trial Court after appreciating the oral and documentary

evidence available on record, convicted the appellant / accused for

the offence as mentioned in the opening paragraph of the judgment,

against which this appeal has been preferred questioning the

impugned judgment of conviction and order of sentence.

6. Learned counsel for the Appellant argues that there is no direct

evidence against the Appellant in the case. The conviction of

appellant is based on three circumstantial evidences. The first

circumstance is the extra-judicial confession, the second is the

seizure/recovery of the axe used in the incident and the clothes of

the Appellant in which blood was found and the third circumstance

is the reason for assault by the Appellant doubting the character of

his wife Uma Tiwari. All three circumstantial evidences have not

been proved beyond reasonable doubt by the prosecution. All three

circumstantial evidences are weak pieces of evidence and the

prosecution has failed to establish the same. The conviction of the Neutral Citation 2024:CGHC:3397-DB

4 CRA No. 800 of 2017

appellant by the trial court is not based on clear and reliable

evidence. Since the case is not proved, the conviction and sentence

do not deserve to be sustained. Therefore, by accepting the appeal,

the judgment in question be set aside and the appellant should be

acquitted. In support of his contention, learned counsel for

appellant relied upon the judgments of the Hon'ble Supreme Court

in the matter of Sahadevan and another v. State of Tamil Nadu

(2012) 6 SCC 403, Balwinder Singh v. State of Punjab 1995

Suppl. (4) SCC 259 and Balwan Singh v. State of Chhattisgarh

and another (2019) 7 SCC 781.

7. Learned counsel for the respondent/State argues that the finding of

the trial court is based on clear and reliable evidence brought on

record and the prosecution has proved its case beyond reasonable

doubt and there is no need for any interference. Therefore, the

appeal should be dismissed.

8. Heard the arguments of both the parties and perused the records.

9. The first question is as to whether the death of Uma Tiwari was

homicidal in nature, which the learned trial Court has recorded the

finding in affirmative on the basis of postmortem report (Ex.P/28)

which is proved by Dr. Satish Kumar Sharma (PW-22) and which is

the finding of fact based on evidence available on record, it is

neither perverse nor contrary to the record and we hereby affirm the

said finding.

Neutral Citation 2024:CGHC:3397-DB

5 CRA No. 800 of 2017

10. Now, the next question is, whether the trial Court has rightly

held the appellant to be the author of crime in question ?

11. The case of the prosecution is based on the extra judicial

confession given by the appellant to Rinki Tiwari (PW-4) & Lalit

Tiwari (PW-15) and the memorandum statement of the appellant

(Ex. P-13) based on which the axe has been seized vide Ex. P-14.

12. We shall now consider the said pieces of evidence found

proved by the trial Court which have been the basis of appellant's

conviction, one by one.

Extra Judicial Confession

13. It is the settled principle of criminal jurisprudence that extra

judicial confession is a weak piece of evidence. Wherever the Court,

upon due appreciation of the entire prosecution evidence, intends

to base a conviction on an extra judicial confession, it must ensure

that the same inspires confidence and is corroborated by other

prosecution evidence. If, however, the extra judicial confession

suffers from material discrepancies or inherent improbabilities and

does not appear to be cogent as per the prosecution version, it may

be difficult for the Court to base a conviction on such a confession.

In such circumstances, the Court would be fully justified in ruling

such evidence out of consideration. [See : Sahadevan and another

v. State of Tamil Nadu1]

1 (2012) 6 SCC 403 Neutral Citation 2024:CGHC:3397-DB 6 CRA No. 800 of 2017

14. In the matter of Sahadevan (supra), their Lordships of the

Supreme Court further considered the earlier decisions including

Balwinder Singh v. State of Punjab 2 and pertinently laid down the

principle in paragraphs 15.1, 15.8 and 16 as under :-

"15.1. In Balwinder Singh (supra) this Court stated the principle that: (SCC p. 265, para 10)

"10. An extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance."

15.8. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambigous and should clearly convey that the accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it. (Ref. Sk. Yusuf v. State of W.B. 3 and Pancho v. State of Haryana4.) The principles

16. Upon a proper analysis of the above referred judgments of this Court, it will be appropriate to state the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These percepts would guide the judicial mind while dealing with the veracity of cases

2 1995 Supp (4) SCC 259 3 (2011) 11 SCC 754 4 (2011) 10 SCC 165 Neutral Citation 2024:CGHC:3397-DB

7 CRA No. 800 of 2017

where the prosecution heavily relies upon an extra- judicial confession alleged to have been made by the accused :

(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.

(ii) It should be made voluntarily and should be truthful.

(iii) It should inspire confidence.

(iv)An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.

(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

(vi) Such statement essentially has to be proved like any other fact and in accordance with law."

15. The principle of law laid down in Sahadevan (supra) has

further been followed with approval in the matter of Pradeep

Kumar v. State of Chhattisgarh5 and very recently in the matter of

Pawan Kumar Chourasia v. State of Bihar6 wherein the following

principle of law has been laid down by their Lordships in paragraph

5 of the report :-

"EVIDENTIARY VALUE OF EXTRA-JUDICIAL CONFESSION

5. As far as extra-judicial confession is concerned, the law is well settled. Generally, it is a weak piece of evidence. However, a conviction can be sustained on the basis of extra-judicial confession provided that the

5 Criminal Appeal No. 1304 of 2018, judgment dated 16/03/2023 6 2023 LiveLaw (SC) 197 Neutral Citation 2024:CGHC:3397-DB

8 CRA No. 800 of 2017

confession is proved to be voluntary and truthful. It should be free of any inducement. The evidentiary value of such confession also depends on the person to whom it is made. Going by the natural course of human conduct, normally, a person would confide about a crime committed by him only with such a person in whom he has implicit faith. Normally, a person would not make a confession to someone who is totally a stranger to him. Moreover, the Court has to be satisfied with the reliability of the confession keeping in view the circumstances in which it is made. As a matter of rule, corroboration is not required. However, if an extra-judicial confession is corroborated by other evidence on record, it acquires more credibility. "

16. In the matter of Nikhil Chandra Mondal v. State of West

Bengal7, principles of law have been laid down by their Lordships

qua evidentiary value of extra judicial confession in paragraphs 13

& 15 as under:-

"13.The trial Court observed that where the prosecution case is entirely based on extra-judicial confession and the prosecution seeks conviction of the accused on that extrajudicial confession, the evidence of the witnesses before whom the alleged confessional statement was made, requires a greater scrutiny to pass the test of credibility.

15. It is a settled principle of law that extra-judicial confession is a weak piece of evidence. It has been held that where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. It has further been held that it is well-settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession. It has been held that there is no doubt that conviction can be based on extra-judicial confession, but in the very nature of things, it is a weak piece of evidence. Reliance in this respect could be placed on the judgment of this Court in the case of Sahadevan and Another v. State of Tamil Nadu (2012) 6 SCC 403. This Court, in the said case, after referring to various earlier judgments on the point, observed thus:

"16. Upon a proper analysis of the abovereferred

7 2023 LiveLaw (SC) 171 Neutral Citation 2024:CGHC:3397-DB

9 CRA No. 800 of 2017

judgments of this Court, it will be appropriate to state the principles which would make an extra- judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra- judicial confession alleged to have been made by the accused:

(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.

(ii) It should be made voluntarily and should be truthful.

(iii) It should inspire confidence.

(iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.

(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

(vi) Such statement essentially has to be proved like any other fact and in accordance with law."

17. In the case at hand, the key witnesses regarding extra-judicial

confession are Rinki Tiwari (PW-4) - the eldest daughter of the

deceased and Lalit Tiwari (PW-15) - the brother of the appellant. At

the time of the alleged incident, Rinki Tiwari (PW-4) was in the

house of her uncle Lalit Tiwari (PW-15) in Raipur whereas the

incident is said to have taken place in village Kanpa of Bemetara

district. Appellant's brother Lalit Tiwari (PW-15) has been a hostile

witness who has not supported the case of prosecution on the point

that his brother i.e. appellant Lokesh alias Ballu Tiwari had made

an extra-judicial confession before him regarding the murder of his Neutral Citation 2024:CGHC:3397-DB

10 CRA No. 800 of 2017

wife Uma Tiwari by an axe. Thus, the prosecution case, on the said

point, by the Appellant's brother Lalit Tiwari, does not find any

support.

18. The second important witness on the point of extra-judicial

confession is the daughter of the deceased Rinki Tiwari (PW-4) who

has stated in her court statement that her father i.e. the appellant

had come to her and told that he had killed her mother Uma Tiwari.

She has further stated that the appellant had gone to Raipur to tell

her. But, in cross-examination, she has admitted that neither she

had made any report in the Police Station nor his uncle Lalit Tiwari

(PW-15) had made any report. They had never even made any

complaint against the appellant. If we consider in the light of the

above cited judgments, Rinki Tiwari (PW-4) has not made a clear

statement that her father Lokesh alias Ballu Tiwari had come to her

and given extra-judicial confession. Rinki Tiwari's statement on this

point has not been clear as to when, where and before whom

Lokesh alias Ballu Tiwari had given extra-judicial confession. At

that time, Rinki Tiwari (PW-4) was in Raipur at her uncle Lalit

Tiwari's house and she has stated that her father i.e. the appellant

had come to Raipur only to tell the incident, but Lalit Tiwari (PW-

15) has been hostile on this point that the appellant had made an

extra-judicial confession before him. In this situation, when Lalit

Tiwari (PW-15) has been hostile, Rinki Tiwari's statement regarding

the alleged extra-judicial confession does not come within the scope

of clear evidence due to lack of clarity in her statement. Thus, in the Neutral Citation 2024:CGHC:3397-DB

11 CRA No. 800 of 2017

light of the above cited judgments, the ground of extra-judicial

confession has not been proved against the appellant.

19. The second circumstantial evidence against the appellant is

Motive. There is no clear evidence of Motive available on record

regarding the assault made by the appellant doubting the character

of his wife Uma Tiwari. Therefore, the motive which has been stated

by the prosection has not been proved.

20. The third circumstantial evidence against the appellant is the

memorandum statement made by the appellant (Ex. P-13), based

on which, the axe used in the offence and the clothes worn by the

appellant were seized vide Ex. P-14. In the case, the FSL report has

been proved in the form of Ex. P-29. It is notable that the learned

counsel for the appellant has argued that this report has been given

three years after the seized articles/property were deposited for

chemical examination. The date of seizure of the articles is stated to

be 03/12/2012 and the receipt of depositing the said articles in

the Laboratory is Ex. P-24 dated 17/12/2012, but the FSL report is

Ex. P-29 dated 31/03/2015 i.e. after about two years and three

months. In such a situation, where and in what form that articles

were there for such a long time and whether it was safe or not, on

this point, the appellant party is justified in having doubts. It is

noteworthy that in the FSL report, only blood is stated to be found

in the said axe and clothes seized on the memorandum statement

of the appellant. There is no clear FSL report as to whether the Neutral Citation 2024:CGHC:3397-DB

12 CRA No. 800 of 2017

blood was human blood or not, due to the stain having

disintegrated.

21. The Supreme Court in the matter of Balwan Singh v. State of

Chhattisgarh and another8 held that if the recovery of

bloodstained articles is proved beyond reasonable doubt by the

prosecution, and if the investigation was not found to be tainted,

then it may be sufficient if the prosecution shows that the blood

found on the articles is of human origin though, even though the

blood group is not proved because of disintegration of blood and

held in Para-24 as under:-

"24.In the instant case, then, we could have placed some reliance on the recovery, had the prosecution at least proved that the blood was of human origin. As observed supra, while discussing the evidence of PWs 9 and 16, the prosecution has tried to concoct the case from stage to stage. Hence, in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery of the weapons and tabbal, and such recovery does not help the case of the prosecution."

22. Further, the Supreme Court in the matter of Mani v. State of

Tamil Nadu9, considering the nature, scope and applicability of

Section 27 of the Indian Evidence Act, 1872, has held that

discovery is a weak kind of evidence and cannot be wholly relied

upon and has observed the following in paragraph 26 of the

judgment :-

"26. The discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious

8 (2019) 7 SCC 781 9 (2009) 17 SCC 273 Neutral Citation 2024:CGHC:3397-DB

13 CRA No. 800 of 2017

matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case. We have already held that the prosecution has failed to prove that the house where alleged bloodstains were found belonged exclusively or was possessed exclusively by the appellant, we have further pointed out that the discovery was absolutely farcical. There is one other very relevant factor ignored by both the courts that the prosecution never made any attempts to prove that the clothes belonged to the appellants. There is literally no evidence to suggest anything to that effect. Therefore, even if we accept the discovery, it does not take us anywhere near the crime. Both the courts below have ignored this very important aspect. Once these two important circumstances are disbelieved, there is nothing which would remain to support the prosecution theory."

23. Reverting to the facts of the present case, in the light of the

aforesaid discussion, it is quite vivid that the extra-judicial

confession made to Rinki Tiwari (PW-4) & Lalit Tiwari (PW-15) is not

true and voluntary. Further, pursuant to the memorandum

statement of the appellant (Ex.P/13), blood stained axe was seized

vide Ex.P/14, which was sent for chemical analysis to FSL, but

from the FSL report it is not proved that human blood was found on

the clothes and the axe which were seized from the appellant. The

FSL report is also about 2 years and 3 months after the seized

articles/property were deposited. That is why, the said report is

doubtful. In view of the decisions rendered by the Supreme Court

in the matters of Balwan Singh (supra) & Mani (supra), recovery is

of no use to the prosecution. Consequently, we are unable to

uphold the conviction of the appellant for offence under Section 302

of the IPC and the appellant is entitled for benefit of doubt.

Neutral Citation 2024:CGHC:3397-DB

14 CRA No. 800 of 2017

24. Accordingly, the impugned judgment dated 09.02.2017 passed

by the Sessions Judge, Bemetara, in Sessions Case No.9/2013

convicting and sentencing the appellant for the offence under

Section 302 of IPC, is hereby set aside/quashed and the appellant

is acquitted from the said offence. The appellant is reported to be in

jail since 18.07.2014, we direct that he be released from jail

forthwith, if not required in any other matter.

25. This criminal appeal is allowed.

26. Let a certified copy of this judgment along with the original

record be transmitted forthwith to the trial Court concerned and to

the Superintendent of Jail where he is lodged and suffering jail

sentence, for information and necessary action, if any.

Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

Khatai