2024 INSC 487

Criminal Appeal No. 1635 of 2018 Page 1 of 10

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1635 OF 20 18

RATNU YADAV …APPELLANT

VERSUS

THE STATE OF CHHATTISGARH …RESPONDENT

J U D G M E N T

ABHAY S. OKA, J.

1. The Sessions Court convicted the appellant-accused for

the offence punishable under Section 302 of the Indian Penal

Code (for short, ‘IPC’) for committing the murder of Smt

Hemwati Bai, who was his stepmother. Appellant was

sentenced to undergo life imprisonment. By the impugned

judgment, the High Court has dismissed the appeal preferred

by the appellant.

FACTUAL ASPECT

2. The case of the prosecution in brief is that the appellant

had a land dispute with the deceased. The allegation against

Criminal Appeal No. 1635 of 2018 Page 2 of 10

the appellant is that on 2

nd March 2013, he assaulted the

deceased. After that, he caught hold of the deceased by her hair

and dragged her up to the village pond. The appellant put her

head inside the pond water. The deceased was suffocated to

death. The first informant–Darshu, PW-4, informed the police

that Hemwati Bai died due to drowning. Accordingly, a First

Information Report (for short, ‘FIR’) was registered. After the

completion of the investigation, a chargesheet was filed against

the appellant. The prosecution examined ten witnesses. There

is no direct evidence. The prosecution relied upon evidence of

PW-1, Sukhmani Bai, the village officer. The prosecution case

is that the appellant made an extra-judicial confession before

the witness. The prosecution relied upon the evidence of PW-5,

Chaprasi, the deceased's brother. According to PW-5, he saw

the appellant holding the hair of the deceased and was taking

her towards the pond. Though PW-1 was declared hostile, the

Trial Court and High Court relied upon a part of her testimony.

The Courts also believed the testimony of PW-5.

SUBMISSIONS

3. Shri Shridhar Y. Chitale, learned counsel appearing for

the appellant as amicus curiae, has taken us through the

postmortem report and testimony of relevant prosecution

witnesses. Based on the evidence of PW-9, Dr Pankaj Kishore,

his submission is that the death was due to drowning, and the

prosecution has not discharged the burden on it to prove that

it was a homicidal death. He submitted that evidence of PW-1,

who was declared as hostile, cannot be believed as in the

Criminal Appeal No. 1635 of 2018 Page 3 of 10

examination-in-chief, the witness did not depose that the

appellant made a confession of killing the deceased. However,

in the cross-examination made by the public prosecutor, the

witness purportedly stated that the appellant confessed before

her about killing the deceased. He submitted that evidence of

PW-1 cannot be believed. As regards the evidence of PW-5, he

stated that though the witness depose d that he saw the

appellant dragging the deceased towards the pond, PW-2 –

Bisoha, who was allegedly present at that time, did not support

the prosecution. Moreover, another witness, Lakhan, was

allegedly present there and was not examined by the

prosecution. He pointed out that the incident happened in the

evening and PW-10, Investigating Officer admitted that there is

a temple near the house of the deceased and other people lived

nearby. He would, therefore, submit that the prosecution has

failed to prove the appellant's guilt beyond a reasonable doubt.

4. Shri Prashant Singh, learned counsel appearing for the

respondent State, submitted that in her cross-examination

made by the public prosecutor, PW-1 has clearly deposed about

the confessional statement made by the appellant. He

submitted that evidence of a hostile witness need not be

rejected in its entirety and that the Court can always rely upon

a part of the testimony of such a witness. He submitted that

the evidence of PW-5 proves that the appellant was last seen

together with the deceased, and at that time, he was holding

the deceased by her hair. He submitted that this evidence is

sufficient to hold that the death of the deceased is homicidal.

Criminal Appeal No. 1635 of 2018 Page 4 of 10

He submitted that in view of the oral testimony of the said two

witnesses, the appellant's guilt has been established.

CONSIDERATION OF SUBMISSIONS

5. We have carefully perused the evidence of prosecution

witnesses and other documents on record. The prosecution is

relying upon the extra-judicial confession made by the

appellant before PW-1 and evidence of PW-5 of last seen

together. The case of the prosecution is that after an altercation

with the deceased in her house, the appellant held the

deceased by her hair and dragged her to the village pond. The

prosecution is relying upon a site map. It shows that a road

separates the pond and the house of the deceased. The sketch

shows the existence of a ridge around the pond and two

temples on the ridge of the pond abutting the road. The temples

are exactly opposite the house of the deceased. According to

the prosecution case, the appellant dragged the deceased by

holding her hair from her house up to the pond. Between the

house of the deceased and the pond, there is a road and ridge

of the pond. This means the appellant must have dragged the

deceased for a considerable distance. The postmortem report

records explicitly that no marks of any injury were found on

the body of the deceased. In his evidence, PW-9 Dr Pankaj

Kishore reiterated that there was no injury mark on the body

of the deceased. If the prosecution story of the appellant

dragging the deceased was true, there would have been some

injury on the body of the deceased. Therefore, the absence of

Criminal Appeal No. 1635 of 2018 Page 5 of 10

any injury marks on the body militates against the

prosecution’s case.

6. Evidence of PW-9 shows that salt water was found in the

trachea and lungs of the deceased. Perhaps to find out whether

the water found in the trachea and lungs of the deceased was

the water in the pond, samples of water from the pond were

collected and sent to the laboratory. That is what PW-10, the

Investigating Officer, has stated in paragraph 11 of his

deposition. He further stated that the Director of the State

Judicial Laboratory returned the samples without testing them

on the ground that the cause of death was established in the

postmortem notes.

7. According to PW-9, the cause of death was due to

drowning; however, he was unable to state whether the death

was homicidal or accidental. The reason is that it was difficult

for him to state whether deceased immersed in the water

herself or she was forced into water. In fact, in postmortem

notes, PW-9 stated that an expert’s opinion should be sought.

Admittedly, an expert’s opinion was not sought.

8. Now, we turn to evidence of PW-1. She was a village

Kotwal. She was a signatory to the panchnama of the recovery

of the dead body and a signatory to the sketch of the site made

by the police. In the examination-in-chief, she stated that on

the date of the incident, around 7 p.m., the appellant came to

her house and stated that his mother had died. She has not

deposed in her examination-in-chief that the appellant stated

Criminal Appeal No. 1635 of 2018 Page 6 of 10

that he had killed the deceased. A Statement under Section 161

of the Code of Criminal Procedure, 1973 (for short, ‘CrPC’) of

the witness was recorded by the police. Obviously, as the said

witness made a departure from what she ha d stated in the

police statement, at the instance of the public prosecutor, the

witness was declared hostile. The cross-examination of the

witness by the public prosecutor shows that the witness was

not confronted by showing the relevant part of her statement

recorded under Section 161 of CrPC. The witness ought to have

been confronted with her prior statement in accordance with

Section 145 of the Indian Evidence Act. However, in the cross-

examination made by the public prosecutor, the witness

accepted the suggestion given by the public prosecutor that the

appellant came to her house at 7 p.m. on the date of the

incident and told her that he had killed his stepmother by

putting her head into the village pond.

9. As regards the evidentiary value of an extra-judicial

confession, a bench of three Hon’ble Judges of this Court in the

case of Devi Lal v. State of Rajasthan

1, in Paragraph 11, this

Court held thus:

“11. It is true that an extra-judicial

confession is used against its maker but as

a matter of caution, advisable for the court

to look for a corroboration with the other

evidence on record. In Gopal Sah v. State

of Bihar [Gopal Sah v. State of Bihar,

(2008) 17 SCC 128 : (2010) 4 SCC (Cri) 466]

, this Court while dealing with extra -

1

(2019) 19 SCC 447

Criminal Appeal No. 1635 of 2018 Page 7 of 10

judicial confession held that extra-judicial

confession is, on the face of it, a weak

evidence and the Court is reluctant, in the

absence of a chain of cogent

circumstances, to rely on it, for the

purpose of recording a conviction. In the

instant case, it may be noticed that there are

no additional cogent circumstances on record

to rely on it. At the same time, Shambhu

Singh (PW 3), while recording his statement

under Section 164 CrPC, has not made such

statement of extra-judicial confession (Ext.

D-5) made by accused Babu Lal. In addition,

no other circumstances are on record to

support it.”

(emphasis added)

In paragraph 16 of the decision of this Court in the case of

Nikhil Chandra Mondal v. State of West Bengal

2, this Court

held thus:

“16. 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

2

(2023) 6 SCC 605

Criminal Appeal No. 1635 of 2018 Page 8 of 10

very nature of things, it is a weak piece of

evidence.”

(emphasis added)

10. The normal rule of human conduct is that if a person

wants to confess to the crime committed by him, he will do so

before the person in whom he has implicit faith. It is not the

case of the prosecution that the appellant ha d a close

acquaintance with PW-1 for a certain length of time before the

incident. Moreover, the version of the witness in examination-

in-chief and cross-examination is entirely different. Therefore,

in our considered view the testimony of PW-1 is not reliable.

Hence, the case of extra -judicial confession cannot be

accepted.

11. Now, we come to the testimony of PW-5. At the beginning

of his examination-in-chief, he stated that the deceased was

his elder sister. He stated that there was an altercation between

the deceased and the appellant in her house. Thereafter, the

appellant caught hold of the deceased by her hair, and he

slammed her. At that time, PW-2, Bisoha was present. The

witness further stated that by holding his mother’s hair, the

appellant took her towards the pond. At that time, one Lakhan

came there and tried to tell the appellant that he should not do

such acts with his mother. The appellant abused him and

forced him to leave. It is pertinent to note that PW-2 Bisoha did

not support the prosecution and was declared hostile. More

importantly, Lakhan, who has allegedly seen the appellant

Criminal Appeal No. 1635 of 2018 Page 9 of 10

dragging the deceased with her hair, has not been examined as

a witness.

12. As admitted by PW-10, Investigating Officer, there is a

temple near the deceased's house, and other people live nearby.

The incident happened in the evening before 7 p.m. There were

two temples on the ridge of the pond. Obviously, there must be

many people around the place of the incident. None of them

has been examined as a witness. Moreover, the officer stated

that it was not revealed during the investigation that the

deceased shouted. An adverse inference must be drawn against

the prosecution for not examining material witnesses,

including Lakhan. Considering the evidence of PW-5, Lakhan

was a very crucial witness. The prosecution has not explained

his non-examination. PW-2, Bisoha has not supported the

prosecution. Moreover, in the absence of injuries on the body

of the deceased, it is very difficult to accept the testimony of

PW-5 that by holding the hair of his mother, the appellant

dragged her to the pond. Therefore, evidence of PW-5 of last

seen together is not worthy of acceptance.

13. Considering what we have held earlier, the appellant's

guilt was not proved beyond a reasonable doubt. The appellant

was incarcerated for 11 years.

14. Hence, the impugned judgment and order dated 7

th April

2018 and 9

th July 2013 are hereby set aside. The appellant is

acquitted of the offence registered with FIR No. 68 of 2013 of

Police Station Kharora, district Raipur. The appellant shall be

Criminal Appeal No. 1635 of 2018 Page 10 of 10

immediately set at liberty unless his custody is required in any

other case. The appeal is, accordingly, allowed.

……………………..J.

(Abhay S. Oka)

……………………..J.

(Rajesh Bindal)

New Delhi;

July 09, 2024