ISHWARI LAL YADAV & ANR. versus STATE OF CHHATTISGARH on 3 October 2019

Conclusion

1. Leave granted.

2. This appeal is filed by appellant Nos. 1 and 2 in Criminal AppealNo.1068 of 2014 filed before the High Court of Chhattisgarh, Bilaspur,aggrieved by the common judgment in Criminal Reference No.4 of 2014and Criminal Appeal No.1068 of 2014. The appellants herein werecharged for offences punishable under Sections 364/34 read with 120BIPC, Sections 302/34 read with 120B IPC and Section 201 IPC. On theaforesaid charges they were tried in Sessions Trial No.98 of 2011 by thelearned Sessions Judge, Durg, and they were convicted for the offencescharged and sentenced for imprisonment for life and a fine of Rs.5,000/- was imposed for the offence under Sections 364/34 read with 120BIPC, sentence of death and a fine of Rs.5,000/- for the offence underSections 302/34 read with 120B IPC, rigorous imprisonment for fiveyears and a fine of Rs.2,000/- for the offence under Section 201 IPC. Inview of the death sentence imposed, the learned Sessions Judge made areference to the High Court in Criminal Reference No.4 of 2014.Challenging the conviction recorded and the sentence imposed on them,appellants have filed Criminal Appeal No.1068 of 2014. Vide impugnedjudgment dated 30.11.2016, the High Court has confirmed the convictionrecorded against appellants. However, the death sentence imposed bythe Trial Court is modified to imprisonment for life. It was further observedthat appellants-accused are not entitled to any remission or parole.Aggrieved by the said judgment this appeal is filed.

3. On 04.03.2010, Beeru Dewar (PW-2) had lodged a complaintwith the Police Station, Bhilai Nagar, stating that his six year old daughterKu. Manisha is missing.

4. On 23.11.2010, a child by name Chiraj Rajput was found missingfrom his house. A missing report was given in Police Station, Bhilai Nagar,District Durg. Thereafter, the parents were searching for their child.

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AOn hearing loud music being played in the house of appellants i.e. IshwariLal Yadav (A-1) and Smt. KiranYadav (A-2), they entered their house.When they entered the house they found freshly dug mound of earthand appellants herein who were claiming as “tantriks”, have admittedthat they had killed Chirag and buried him there to attain “siddhi”. Further,it is the case of the prosecution that during the investigation in the saidBcase, Mahanand Yadav (A-4), made a statement to the police that aboutseven/eight months earlier, he had kidnapped one small girl on the askingof A-1 and A-2.5.

The said girl had been killed by way of human sacrifice and herbody was buried in the compound of the appellants herein. On 24.11.2010,Cone constable of Bhilai Nagar Police Station made ‘O’ entry to the effect,that an information has been received about the kidnapped girl who hadbeen killed by way of human sacrifice and her skeletal remains wererecovered along with the cloths which she was wearing. On the saiddate a statement was recorded under Ext.P-15. On the basis of theDaforesaid statement, investigation was done and skeletal remains of thechild were recovered.

6. After recovery of the skeletal remains, DNA test was conductedand it was determined that skeletal remains found in the house of IshwariLal Yadav (A-1) and Smt. Kiran Yadav (A-2) were of Ku.Manisha whoEwas also reported to be missing. After completing investigation, theappellants herein were charged for the offences alleged against them.

7. On behalf of the prosecution, PW-1 to PW-21 were examinedto prove the guilt of accused. The Trial Court on appreciation of evidenceon record has held that the appellants and two other accused are guiltyFfor the charges framed against them, convicted and sentenced theappellants as follows :

ISHWARI LAL YADAV & ANR. v. STATE OF CHHATTISGARH[R. SUBHASH REDDY,J.]

8. On appeal, High Court has acquitted accused nos.3 and 4,namely, Rajendra Kumar Mahar and Mahanand Yadav respectively. Sofar as appellants are concerned their conviction is confirmed, the deathsentence imposed on them is modified to one of imprisonment for life foroffence under Section 302/34 and 120B, IPC. At the same time theirconviction and sentence is confirmed for the offence under Section364/34 and 120B IPC and 201 IPC.

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9. We have heard Sri Siddhartha Dave learned senior counselappearing for the appellants and Sri Sumeer Sodhi,learned counselappearing for the respondent-State of Chhattisgarh.

10. It is contended by the learned senior counsel for the appellantsthat the prosecution has failed to prove the guilt of accused beyondreasonable doubt and inspite of the same they were convicted andsentenced for the offences alleged. It is submitted that the confessionalstatements ought not to have been relied on in absence of anycorroborative evidence to prove the guilt of the accused. It is furthercontended that there are material contradictions among the witnesses,as such the evidence is unreliable. It is further submitted that the femurbone that was preserved, was sent to CDFC Hyderabad for DNA analysis,and in fact the report relied upon by the prosecution was the FSL Report,Sagar. Even the FSL Report does not conclusively draw to the fact thatPW-3 is the mother, but, states that she is a biological relative. There arealso discrepancies with regard to the cloths found on her. Further, it issubmitted that appellants were in custody from 23.11.2010 and recoverieswere made on 24.11.2010 but disclosure statements were recordedthereafter.

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11. As such, it is submitted that, same raises a strong probabilitythat these weapons have been planted by the police. It is further submitted H

Athat even the blood which was found on the weapons, there is no proofthat it was human blood. In support of his arguments, learned counselhas relied on the judgments of this Court in the case of Aghnoo Nagesiavs. State of Bihar[1], Sahadevan & Anr. vs. State of Tamil Nadu[2],Shambu Nath Mehra vs. The State of Ajmer[3], Ronny vs. State ofMaharashtra[4], State of Goa vs. Sanjay Thakran[5,]Prakash vs. StateBof Karnataka[6 ]and Firozuddin Basheeruddin & Ors. vs. State ofKerala[7].

12. To buttress the submission that as there is strong probabilitythat the weapons seized have been planted by the police, as such recoveriescannot be relied on, learned counsel relied on the judgment in the case ofCSanjay Thakran[5]. Further, reliance is also placed on the judgment inthe case of Prakash[6]. In support of his submission that as the blood onthe weapon used in crime is not shown to be that of the deceased, itraises a grave suspicion that investigation was not fair and benefit ofdoubt is to be given to the accused.D

13. On the other hand Sri Sumeer Sodhi, learned counsel appearingfor the respondent-State has submitted that as the case relates to thegruesome murder of a minor girl of six years, for the purpose of humansacrifice and from the oral evidence on record, the prosecution has provedthe guilt of the accused beyond reasonable doubt, as such there are noEgrounds to interfere with the impugned judgment. It is submitted thatwhen a child of two years by name Chirag was missing, his parentswere on search for missing child along with family members and residentsof locality, on hearing the loud music emanating from the house of theappellants, they got suspicious and entered the house. It is submittedthat at that point of time both the appellants-accused have confessedFtheir guilt of committing the act of murder of Chirag and burying thebody in the precinct of the house. It is submitted that looking at the freshmound of mud, same was excavated and the body of Chirag was foundin two parts. At that time one of the accused in the said case also revealedcommitting of similar offence of a girl child. It is submitted that there G1 AIR 1966 SC 1192 (2012) 6 SCC 4033 1956 SCR 1994 (1998) 3 SCC 6255 (2007) 3 SCC 7556 (2014) 12 SCC 133H7 (2001) 7 SCC 596

was already a complaint of missing child of six year old daughter ofBeeru Dewar (PW-2), lodged on 04.03.2010, investigation was made.Further investigation of the police revealed that they have kidnappedand committed murder of minor girl by name Km.Manisha. She wasalso buried near to the place of Chirag. As such by excavating skeletalremains along with cloths were taken out. It is submitted that from theevidence on record it is clearly proved by confession of severalindependent witnesses, which is corroborated by other evidence on recordto prove that Manisha was murdered for the purpose of human sacrificeby appellants, as such they were rightly convicted and sentenced by theTrial Court and their sentence of death was modified by the High Courtto that of imprisonment for life without any remission or parole. As such,it is submitted that there are no grounds to interfere with the same.Learned counsel has also relied on the judgment in the case of SushilMurmu vs. State of Jharkhand[8].

14. Having heard the learned counsels on both the sides, we haveperused the impugned judgment and also the other material on record.

15. To prove the guilt of appellants-accused, several independentwitnesses were examined. From the evidence on record it is clear thaton 23.11.2010 when there was search by the parents of the deceasedChirag Rajput for their missing child along with others of the locality, onhearing the loud music from the house of the appellants, they gotsuspicious and entered the house. Upon entering the house a freshly dugmound of earth was found in the house of the appellants and on confessionmade by the appellants body of Chirag was traced. Further, as it wasdisclosed by one of the accused that about 7/8 months earlier, they havekidnapped one small girl on the asking of A-1 and A-2 and they havehanded over the girl to Ishwari Lal Yadav and Kiran Yadav, furtherinvestigation was made in view of the complaint lodged by Beeru Dewar(PW-2) on 04.03.2010. On 04.03.2010, Beeru Dewar (PW-2) filed areport to the effect that his six year old daughter Ku.Manisha was missing.On further investigation, the skeletal remains were also recovered fromthe house of the appellants from the place adjoining from where body ofChirag was taken out. In oral evidence Beeru Dewar (PW-2), father ofthe deceased stated that when they went to the house of Ishwari LalYadav (A-1), they found the skeletal remains and they have also identifiedthe cloths of his daughter Ku. Manisha.

8 (2004) 2 SCC 338.

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8 (2004) 2 SCC 338.

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A16. Mother of the deceased Smt. Durga Bai was examined asPW-3. In her deposition, she has stated that about 1½ years earlier tothe date of statement, she had gone to Kasaridih at about 06.00 pm forbegging. Her daughter was wearing one red coloured two piece set andat about 8.00 pm when pooja was over in the temple, her daughterKu. Manisha stated that she wanted to defecate. She also stated in herBdeposition that after sometime when she went back to the place of electricpole where her daughter was defecating, she did not find her there. It isstated that at the instance of police officials they went to the house ofappellants at Ruabandha and in her presence a grave was dug whichwas inside the house of the appellants and cloths of her daughter wereClying there along with some pieces of bones. She identified the cloths tobe that of her daughter Ku.Manisha.

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17. Dilip Thakur was examined as PW-11, who was one amongstthe persons who went inside the house of the appellants in search ofother child Chirag. He has, in clear terms, stated that at that time boththe appellants Ishwari Lal Yadav and Smt. Kiran Yadav confessed thatDearlier they had sacrificed one small girl child whom they had broughtfrom Kasaridih and that she had been buried in their house.

18. PW-13 Shrikant Gawander stated that on pointing out byIshwari Lal Yadav, some mound in the courtyard was dug up and insidethe same skeletal remains were found along with red coloured frock andEred coloured underwear.

19. PW-16 is the Assistant Sub Inspector, who has recorded themerg intimation (Exhibit P-28) and (Exhibit P-29).

20. One Khuman Singh Sahu was examined as PW-21. In hisdeposition he has stated that he knows accused Ishwari Lal Yadav andFhis wife Smt. Kiran Yadav, appellants herein, who are his neighbours.He has stated that both the accused A-1 and A-2 were engaged inwitchcraft. Rajendra Kumar (A-3) and Mahanand Yadav (A-4) are thedisciples of (A-1) and (A-2). He was also one of the members in theteam in search of missing boy Chirag earlier. He too stated in hisGdeposition that the appellants have admitted that one girl by nameKu. Manisha who had been kidnapped earlier, had been sacrificed bythem. A confession is also to the effect that they have buried the girlnext to the place where Chirag’s body has been buried.

21. From the evidence on record, it is clearly established beyondHreasonable doubt that Km.Manisha is the daughter of PW-2 and PW-3

and was missing since 04.03.2010. Though, the said complaint wasrecorded in the Police Out Post Padmanabhpur, Durg, on 04.03.2010but there was no breakthrough. Only after Chirag’s case has come tolight, based on admissions by the appellants and two others, furtherinvestigation revealed that the appellants earlier also committed similaroffence of murder of Km.Manisha for their tantrik activities and buriedthe body of minor girl in their house.

22. The confessional statements made to the police by theappellants, cannot be the basis to prove the guilt of the accused but atthe same time there is no reason to discard the confessions made to theindependent witnesses at the time when Chirag’s body was found, priorto the arrival of police. It is true that extra judicial confession, is a weakpiece of evidence but at the same time if the same is corroborated byother evidences on record, such confession can be taken into considerationto prove the guilt of the accused. In the case on hand, the evidence fromindependent witnesses is in one voice and consistent. The medicalevidence on record also substantiated the case of the prosecution. Inaddition to the same, PW-2 and PW-3 who are the parents of the deceasedhave identified the cloths, which the deceased child was wearing on thedate of missing. It is also clear from the evidence that the skeletal remainswere removed. They have also found the cloth pieces, attached to skeletalremains. The colour of such cloth pieces was tallied with the descriptionin the missing report lodged by PW-2 earlier on 04.03.2010. As such it isclearly proved beyond any reasonable doubt that the appellants areresponsible for the offence alleged against them.

23. Learned counsel for the appellants has relied on a judgmentof this Court in the case of Aghnoo Nagesia[1] to buttress his contentionthat the courts below have committed error in recording a finding of guiltof the appellants based on confession. But same is a case where theappellant therein was charged under Section 302 IPC for murdering hisaunt and others and there were no eye witnesses to the murder. Theprincipal evidence against the appellant was First Information Reportwhich contains a full confession of guilt by the appellant himself. Thesaid confession was made to a police officer and the same is not provablehaving regard to Section 25 of the Indian Evidence Act. Further relianceis also placed on a judgment of this Court in the case of Sahadevan[2]. Inthe aforesaid judgment of two-Judge Bench of this Court it is held thatthe extra judicial confession is a weak piece of evidence and court mustensure that same inspires confidence and is corroborated by other AB

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Aprosecution evidence. If the totality of oral evidence on record isconsidered in the case on hand, it is consistent and inspires confidenceof the case of the prosecution to prove the guilt of the main accused.We are of the view that the aforesaid judgments would not render anyassistance to support the case of the appellants.

B24. Learned counsel also relied on the judgment of this Court inthe case of Shambu Nath Mehra[3]. In the aforesaid judgment this Courthas held that in a criminal case burden of proof is on the prosecution andSection 106 is certainly not intended to relieve it of that duty. It is heldthat on the contrary, it is designed to meet certain exceptional cases inwhich it would be impossible, or at any rate disproportionately difficult,Cfor the prosecution to establish facts which are “especially” within theknowledge of the accused and which he could prove without difficultyor inconvenience. In this case on hand it is proved by cogent evidencethat the body of Chirag was found in the house of Ishwari Lal Yadav.By applying the provision under Section 106 of the Indian Evidence ActDdefinitely it is the burden of the accused to explain the fact within theknowledge of them how the body of Chirag came to be buried in theirhouse. The judgment relied on in the case of Shambu Nath Mehra[3]also would not be helpful for the appellants. In the case of FirozuddinBasheeruddin[7] this Court has discussed the ingredients which constitutecriminal conspiracy within the meaning of Section 120B of the IPC. AsEwe are of the view that the evidence on record is not sufficient to provethe guilt of the appellants under Section 120B of IPC, as such it is notnecessary to elaborate any further.

25. The other judgments relied on by the learned counsel for theappellants in the case of Sanjay Thakran[5] and the judgment in the caseFof Prakash[6] also would not render any assistance to the case of theappellants having regard to facts and circumstances of the present case.Apart from the recoveries there is a strong and consistent evidence ofindependent witnesses to prove the guilt of the accused. The FSL Report,Sagar, conclusively establishes that PW-3 is the biological relative of theGdeceased. The said evidence if considered along with other oral evidenceof PW-2 and PW-3, it is proved beyond reasonable doubt that the skeletalremains of the body removed from the house of the appellants was onlythat of their daughter Ku.Manisha. It is also proved from the evidenceon record that the house belonged to the appellants where skeletal remainswere removed.H

26. Further, as there is no acceptable evidence on record exceptthe alleged confession to prove the offence under Sections 364/34 readwith 120B IPC, the appellants are entitled for acquittal for offencespunishable under Sections 364/34 and 120B IPC. At the same time, byburying the dead body of the deceased caused disappearance of evidenceof offence, they are rightly convicted for offence under Section 201IPC.

27. Having regard to gruesome nature of murder, the Trial Courthas imposed the punishment of death for offence under Sections 302/34read with 120B IPC but on appeal the High Court has modified thesentence to that of imprisonment for life without any remission or parole.Considering the gruesome nature of murder the sentence imposed bythe High Court is to be confirmed.

28. For the aforesaid reasons, this Criminal Appeal is partly allowed,setting aside the conviction recorded and sentence imposed for theoffence under Sections 364/34 read with 120B IPC. However, we confirmthe conviction recorded and sentence imposed for the offence underSections 302/34 and Section 201 IPC.

Devika Gujral

Appeals partly allowed.

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