Himachal Pradesh High Court
State Of H.P vs Man Singh on 7 January, 2025
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
Neutral Citation No. ( 2024:HHC:16962 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 60 of 2014
Reserved on: 18.12.2024
Date of Decision: 07.01.2025
State of H.P. …Appellant.
Versus
Man Singh ...Respondent.
Coram
Hon’ble Mr Justice Vivek Singh Thakur, Judge.
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes
For the Appellant/State : Mr. J.S. Guleria, Deputy Advocate
General.
For the Respondent : Ms. Suman Thakur, Advocate.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment
dated 28.10.2013, passed by learned Additional Sessions Judge,
Chamba, District Chamba, H.P., vide which the respondent
(accused before learned Trial Court) was acquitted of the
commission of an offence punishable under Section 302 of Indian
Penal Code (in short ‘IPC‘). (Parties shall hereinafter be referred to in
the same manner as they were arrayed before the learned Trial Court
for convenience).
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Neutral Citation No. ( 2024:HHC:16962 )
2. Briefly stated, the facts giving rise to the present appeal
are that the police filed a challan against the accused before the
learned Trial Court for the commission of an offence punishable
under Section 302 of IPC. It was asserted that Pawan (since
deceased) was returning to his home on 2.3.2012 at about 5.00 PM.
He fell on the way. The informant Uttamo (PW1) was told about
this fact on 03.03.2012. He informed the police. An entry
(Ex.PW11/A) was recorded in the Police Station. ASI Parvesh Kumar
(PW11), HHC Raj Kumar, Constable Naresh Kumar and HHG
Ranjeet Singh were sent to the spot in an official vehicle bearing
registration No.HP-73-0919, which Constable Suresh Kumar was
driving. An entry (Ex.PW11/A) was recorded in the Police Station.
ASI Parvesh Kumar (PW11) prepared the inquest report
(Ex.PW11/B). He filed an application (Ex.PW11/C) and sent the dead
body to the Regional Hospital, Chamba, for postmortem
examination. Dr Navdeep Joshi (PW19) conducted Pawan Kumar’s
postmortem examination. He found multiple injuries on the body.
In his opinion, the deceased died due to a head injury leading to
intracranial haemorrhage, shock and death. He preserved the
viscera and handed it over to the police official accompanying the
dead body. ASI Parvesh Kumar (PW11) photographed the spot
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Neutral Citation No. ( 2024:HHC:16962 )
(Ex.PW11/D1 to (Ex.PW11/D6). The dead body was handed over to
Uttamo (PW1). Uttamo (PW1) found, on enquiry, that the accused
had murdered the deceased. He had called Nirmala Devi (PW2) and
confessed to the commission of the crime. He had also called her
when she was admitted to the hospital and he admitted to the
commission of crime. This call was recorded by Sanjeev Kumar
(PW8). Uttamo (PW1) filed an application (Ex.PW1/A) to take action
in the matter. The police registered the FIR (Ex.PW16/A). Padam
Chand, Additional Superintendent of Police (PW23), conducted the
investigation. He visited the spot on 18.04.2012 and prepared the
site plan (Ex.PW23/A). Laxmi Devi (PW3) handed over one mobile
phone, which was handed over to her by Uttamo (PW1). This
mobile set contained a recording of a conversation between Man
Singh (accused) and Nirmala Devi (PW2). Padam Chand (PW23)
seized the mobile phone vide memo (Ex.PW3/A). He arrested the
accused on 19.04.2012 vide memo (Ex.PW23/B). The accused
showed the place of the incident. The site plan (Ex.PW23/C) was
prepared on the spot. The mobile phone was sealed in a parcel with
three impressions of seal ‘D’. The seal impression was taken on a
separate piece of cloth. Further investigation was conducted by
SI/SHO Shakti Singh Pathania (PW18). He filed an application
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Neutral Citation No. ( 2024:HHC:16962 )
(Ex.PW6/A) before Tehsildar, Chamba, for preparation of the spot
map where the dead body was found. Sushil Kumar (PW6)
conducted the demarcation (Ex.PW6/B) and prepared the tatima
(Ex.PW6/C). The Jamabandis (Ex.PW10/A and Ex.PW10/B) were
issued by Anil Joshi (PW10). The case property was sent to SFSL,
Junga, for analysis. The result of analysis (Ex. PX) was issued, in
which it was shown that viscera contained 94.96 mg % of alcohol
in it. The call detail records were issued by Devinder Verma (PW22).
The voice sample of the accused was taken, and the call records and
voice samples were sent to CFSL, Chandigarh; however, these were
not received by CFSL, Chandigarh and were subsequently sent to
CBI, Dehli for analysis through ASI Jai Chand (PW20). The
statements of the remaining witnesses were recorded as per their
version, and after the completion of the investigation, the challan
was prepared and presented before the learned Chief Judicial
Magistrate, Chamba, who committed it to learned Sessions Judge,
Chamba, who assigned it to learned Additional Sessions Judge, Fast
Track Court, Chamba (learned Trial Court).
3. The learned Trial Court charged the accused with the
commission of an offence punishable under Section 302 of IPC, to
which he pleaded not guilty and claimed to be tried.
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Neutral Citation No. ( 2024:HHC:16962 )
4. The prosecution examined 23 witnesses to prove its
case. Uttamo (PW1) is the father of the deceased and the informant.
Nirmala Devi (PW2) is the sister-in-law of the accused, to whom
the extra-judicial confession was made. Laxmi Devi (PW3) is the
Pradhan of Gram Panchayat, to whom the mobile phone
containing the call recording was handed over. Bago (PW4) is the
wife of the deceased. Omi (PW5) and Durgo (PW7) proved that the
accused suspected that the deceased had illicit relations with his
(accused’s) wife. Sushil Kumar (PW6) conducted the demarcation
and prepared a report and the tatima. Sanjeev Kumar (PW8)
recorded the conversation between Nirmala Devi (PW2) and the
accused. Karam Chand (PW9) is the witness to the extra-judicial
confession made by the accused. Anil Joshi (PW10) issued the
Jamabandi of the place where the dead body was found. ASI
Parvesh Kumar (PW11) conducted the initial investigation after the
police were informed of the discovery of the dead body. Constable
Avdhesh Kumar (PW12) carried the case property to RFSL,
Dharamshala. HC Pawan Kumar (PW13) was working as MHC, who
sent the case property to RFSL, Dharmshala. HC Kuldeep Chand
(PW14) was working as a regular MHC with whom the case
property was deposited. HC Ramesh Chand (PW15) was officiating
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Neutral Citation No. ( 2024:HHC:16962 )
as MHC, who sent the voice sample and the disputed recording to
CFSL, New Delhi. ASI Man Chand (PW16) registered the FIR. HHC
Gian Singh (PW17) proved the entries in the daily diary. SI/SHO
Shakti Singh Pathania (PW18) conducted the investigation partly.
Dr Navdeep Joshi (PW19) conducted the postmortem examination
of the deceased. ASI Jai Chand (PW20) carried the disputed
recording and the sample initially to CFSL, Chandigarh and
thereafter to CBI, Delhi. Kulwant Singh (PW21) got the voice
sample recorded as per the directions of the learned Chief Judicial
Magistrate Chamba. Devinder Verma (PW22) proved the call detail
record. Padam Chand (PW23) conducted the initial investigation.
5. The accused, in his statement recorded under Section
313 of Cr.P.C., denied the prosecution case in its entirety. He denied
that he had any conversation with Nirmala Devi (PW2) or that any
such conversation was recorded by Sanjeev Kumar (PW8). He
stated that the deceased died due to a fall after consuming
excessive alcohol. Witnesses deposed against him falsely. No
defence was sought to be adduced by the accused.
6. The learned Trial Court held that the prosecution case
was based upon extra-judicial confession and the motive of the
accused to kill the deceased due to his suspicion of the deceased
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Neutral Citation No. ( 2024:HHC:16962 )
having illicit relations with his (accused’s) wife. Both these
circumstances were not established beyond a reasonable doubt.
The statement of Durgo Devi (PW7) regarding the illicit
relationship and the threat advanced by the accused to kill the
deceased was not believable because she had not taken any steps
after coming to know of such a threat. She even did not narrate this
fact to any person. She was closely related to Uttamo (PW1).
Similarly, the statement of Bago (PW4) was also not believable, as
she had not made any complaint to any person. Omi (PW5) was the
relative of the deceased Pawan. The prosecution version that the
accused made an extra-judicial confession to Nirmala Devi (PW2),
which was recorded by Sanjeev Kumar (PW8), was also not proved.
It was established on record that the accused has a strained
relationship with Nirmala Devi (PW2). The accused had no reason
to make any confession to witness Nirmala Devi (PW2). There was
a delay in reporting the matter to the police, which was not
properly explained. The prosecution case was not proved beyond a
reasonable doubt. Hence, the accused was acquitted.
7. Being aggrieved from the judgment passed by the
learned Trial Court, the State has filed the present appeal asserting
that the learned Trial Court appreciated the evidence in a slipshod
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Neutral Citation No. ( 2024:HHC:16962 )
and perfunctory manner. The learned Trial Court failed to view the
prosecution evidence in its proper perspective, and it had set
unrealistic standards to evaluate the direct and cogent prosecution
evidence. The reasoning of the learned Trial Court was manifestly
unreasonable, and the learned Trial Court erred in discarding the
well-reasoned and consistent testimonies of the prosecution
witnesses. The faulty investigation could not have been used to
discard the prosecution case. The accused had confessed to
Nirmala Devi (PW2), who was his real sister-in-law. It was also
proved before the Court that the accused suspected the deceased of
having an illicit relationship with his (accused’s) wife; therefore,
the accused had a motive to kill the deceased. This fact was not
appreciated by the learned Trial Court. Sanjeev Kumar (PW8) also
proved the conversation between the accused and Nirmala Devi
(PW2), which was also recorded by him. All this evidence pointed
towards the guilt of the accused; therefore, it was prayed that the
present appeal be allowed and the judgment passed by the learned
Trial Court be set aside.
8. We have heard Mr. J.S. Guleria, learned Deputy Advocate
General for the appellant/State, and Ms. Suman Thakur, learned
counsel for the respondent/accused.
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Neutral Citation No. ( 2024:HHC:16962 )
9. Mr J.S. Guleria, learned Deputy Advocate General for the
appellant/State, submitted that the prosecution had duly
established on record that the accused used to suspect the deceased
of having an illicit relationship with his wife. The accused had
previously quarrelled with the deceased due to this fact, the
accused had made an extra-judicial confession to Nirmala (PW2)
on two occasions. This confession was also recorded by Sanjeev
Kumar (PW8) on the mobile phone. These circumstances, taken
together, pointed towards the guilt of the accused, and the learned
Trial Court erred in acquitting the accused. Therefore, he prayed
that the present appeal be allowed and the judgment passed by the
learned Trial Court be set aside.
10. Ms Suman Thakur, learned counsel for the
respondent/accused, submitted that the learned Trial Court had
taken a reasonable view based on the evidence led before it. The
prosecution has examined the related witnesses, and their
testimonies were not satisfactory. Learned Trial Court had rightly
held that the relationship between the accused and Nirmala Devi
(PW2) was strained, and he had no reason to make an extra-
judicial confession to Nirmala Devi (PW2). The recording stated to
have been made by Sanjeev Kumar was never produced before the
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Neutral Citation No. ( 2024:HHC:16962 )
Court. As per the prosecution case, the voice sample of the accused
taken before the learned Chief Judicial Magistrate and the disputed
recording were sent to CBI. However, the result of the analysis was
not placed on record. Even no application was filed before this
Court to prove the result of the analysis, and the Court should draw
an adverse inference against the prosecution. Therefore, she
prayed that the present appeal be dismissed.
11. We have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
12. The present appeal has been filed against a judgment of
acquittal. It was laid down by the Hon’ble Supreme Court in
Mallappa v. State of Karnataka, (2024) 3 SCC 544: 2024 SCC OnLine
SC 130 that while deciding an appeal against acquittal, the High
Court should see whether the evidence was properly appreciated on
record or not; second whether the finding of the Court is illegal or
affected by the error of law or fact and thirdly; whether the view
taken by the Trial Court was a possible view, which could have been
taken based on the material on record. The Court will not lightly
interfere with the judgment of acquittal. It was observed:
“25. We may first discuss the position of law regarding the
scope of intervention in a criminal appeal. For that is the
foundation of this challenge. It is the cardinal principle of
11
Neutral Citation No. ( 2024:HHC:16962 )criminal jurisprudence that there is a presumption of
innocence in favour of the accused unless proven guilty. The
presumption continues at all stages of the trial and finally
culminates into a fact when the case ends in acquittal. The
presumption of innocence gets concretised when the case
ends in acquittal. It is so because once the trial court, on
appreciation of the evidence on record, finds that the
accused was not guilty, the presumption gets strengthened,
and a higher threshold is expected to rebut the same in
appeal.
26. No doubt, an order of acquittal is open to appeal, and
there is no quarrel about that. It is also beyond doubt that in
the exercise of appellate powers, there is no inhibition on the
High Court to reappreciate or re-visit the evidence on record.
However, the power of the High Court to reappreciate the
evidence is a qualified power, especially when the order
under challenge is of acquittal. The first and foremost
question to be asked is whether the trial court thoroughly
appreciated the evidence on record and gave due
consideration to all material pieces of evidence. The second
point for consideration is whether the finding of the trial
court is illegal or affected by an error of law or fact. If not,
the third consideration is whether the view taken by the trial
court is a fairly possible view. A decision of acquittal is not
meant to be reversed on a mere difference of opinion. What
is required is an illegality or perversity.
27. It may be noted that the possibility of two views in a
criminal case is not an extraordinary phenomenon. The
“two-views theory” has been judicially recognised by the
courts, and it comes into play when the appreciation of
evidence results in two equally plausible views. However, the
controversy is to be resolved in favour of the accused. For,
the very existence of an equally plausible view in favour of
the innocence of the accused is in itself a reasonable doubt in
the case of the prosecution. Moreover, it reinforces the
presumption of innocence. Therefore, when two views are
possible, following the one in favour of the innocence of the
accused is the safest course of action. Furthermore, it is also
settled that if the view of the trial court, in a case of
12
Neutral Citation No. ( 2024:HHC:16962 )acquittal, is a plausible view, it is not open for the High Court
to convict the accused by reappreciating the evidence. If such
a course is permissible, it would make it practically
impossible to settle the rights and liabilities in the eye of the
law.
28. In Selvaraj v. State of Karnataka [Selvaraj v. State of
Karnataka, (2015) 10 SCC 230: (2016) 1 SCC (Cri) 19]: (SCC pp.
236-37, para 13)
“13. Considering the reasons given by the trial court and
on an appraisal of the evidence, in our considered view,
the view taken by the trial court was a possible one. Thus,
the High Court should not have interfered with the
judgment of acquittal. This Court in Jagan M.
Seshadri v. State of T.N. [Jagan M. Seshadri v. State of T.N.,
(2002) 9 SCC 639: 2003 SCC (L&S) 1494] has laid down that
as the appreciation of evidence made by the trial court
while recording the acquittal is a reasonable view, it is not
permissible to interfere in appeal. The duty of the High
Court while reversing the acquittal has been dealt with by
this Court, thus: (SCC p. 643, para 9)
‘9. … We are constrained to observe that the High Court
was dealing with an appeal against acquittal. It was
required to deal with various grounds on which
acquittal had been based and to dispel those grounds.
It has not done so. Salutary principles while dealing
with appeals against acquittal have been overlooked by
the High Court. If the appreciation of evidence by the
trial court did not suffer from any flaw, as indeed none
has been pointed out in the impugned judgment, the
order of acquittal could not have been set aside. The
view taken by the learned trial court was a reasonable
view, and even if by any stretch of the imagination, it
could be said that another view was possible, that was
not a ground sound enough to set aside an order of
acquittal.'”
29. In Sanjeev v. State of H.P. [Sanjeev v. State of H.P., (2022) 6
SCC 294: (2022) 2 SCC (Cri) 522], the Hon’ble Supreme Court
analysed the relevant decisions and summarised the
approach of the appellate court while deciding an appeal
13
Neutral Citation No. ( 2024:HHC:16962 )from the order of acquittal. It observed thus: (SCC p. 297,
para 7)
“7. It is well settled that:
7.1. While dealing with an appeal against acquittal, the
reasons which had weighed with the trial court in
acquitting the accused must be dealt with in case the
appellate court is of the view that the acquittal
rendered by the trial court deserves to be upturned
(see Vijay Mohan Singh v. State of Karnataka [Vijay
Mohan Singh v. State of Karnataka, (2019) 5 SCC 436 :
(2019) 2 SCC (Cri) 586] and Anwar Ali v. State of
H.P. [Anwar Ali v. State of H.P., (2020) 10 SCC 166 :
(2021) 1 SCC (Cri) 395] ).
7.2. With an order of acquittal by the trial court, the
normal presumption of innocence in a criminal matter
gets reinforced (see Atley v. State of U.P. [Atley v. State
of U.P., 1955 SCC OnLine SC 51: AIR 1955 SC 807]).
7.3. If two views are possible from the evidence on
record, the appellate court must be extremely slow in
interfering with the appeal against acquittal (see
Sambasivan v. State of Kerala [Sambasivan v. State of
Kerala, (1998) 5 SCC 412: 1998 SCC (Cri) 1320]).”
13. This position was reiterated in Ramesh v. State of
Karnataka, (2024) 9 SCC 169: 2024 SCC OnLine SC 2581, wherein it
was observed at page 175:
“20. At this stage, it would be relevant to refer to the general
principles culled out by this Court in Chandrappa v. State of
Karnataka [Chandrappa v. State of Karnataka, (2007) 4 SCC
415 : (2007) 2 SCC (Cri) 325], regarding the power of the
appellate court while dealing with an appeal against a
judgment of acquittal. The principles read thus: (SCC p. 432,
para 42)
“42. … (1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which the
order of acquittal is founded.
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Neutral Citation No. ( 2024:HHC:16962 )
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on the exercise of
such power and an appellate court on the evidence before
it may reach its own conclusion, both on questions of fact
and law.
(3) Various expressions, such as “substantial and
compelling reasons”, “good and sufficient grounds”,
“very strong circumstances”, “distorted conclusions”,
“glaring mistakes”, etc., are not intended to curtail
extensive powers of an appellate court in an appeal
against acquittal. Such phraseologies are more in the
nature of “flourishes of language” to emphasise the
reluctance of an appellate court to interfere with acquittal
than to curtail the power of the court to review the
evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that
in case of acquittal, there is a double presumption in
favour of the accused. Firstly, the presumption of
innocence is available to him under the fundamental
principle of criminal jurisprudence that every person
shall be presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly, the accused
having secured his acquittal, the presumption of his
innocence is further reinforced, reaffirmed and
strengthened by the trial court.
(5) If two reasonable conclusions are possible on the
basis of the evidence on record, the appellate court
should not disturb the finding of acquittal recorded by
the trial court.”
21. In Rajendra Prasad v. State of Bihar [Rajendra Prasad v.
State of Bihar, (1977) 2 SCC 205: 1977 SCC (Cri) 308], a three-
judge Bench of this Court pointed out that it would be
essential for the High Court, in an appeal against acquittal,
to clearly indicate firm and weighty grounds from the record
for discarding the reasons of the trial court in order to be
able to reach a contrary conclusion of guilt of the accused. It
was further observed that, in an appeal against acquittal, it
would not be legally sufficient for the High Court to take a
contrary view about the credibility of witnesses, and it is
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Neutral Citation No. ( 2024:HHC:16962 )
absolutely imperative that the High Court convincingly finds
it well-nigh impossible for the trial court to reject their
testimony. This was identified as the quintessence of the
jurisprudential aspect of criminal justice.”
14. The present appeal has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
15. The prosecution has relied upon the extra-judicial
confession made by the accused to Nirmala Devi (PW2). It was laid
down by the Hon’ble Supreme Court in Krishan Kumar v. State of
Haryana, 2023 SCC OnLine SC 1180 that the Court can rely upon the
extra-judicial confession if it is credible and made to an
independent and unbiased person. It was observed:
“35. As noted hereinbefore, the next link in the chain of
circumstances relied on by the prosecution is the extra-
judicial confession allegedly made by the appellants to PW-
7. True that the extra-judicial confession cannot always be
taken as a weak piece of evidence, and the question of
whether it is worthy to be taken as admissible and to form a
basis for conviction in a criminal trial would depend upon
the veracity of the witness to whom the confession was
allegedly made.
36. In the decision in Chattar Singh v. State of Haryana (2008)
14 SCC 667: AIR 2009 SC 378, this Court held that after
subjecting the evidence of the witness to a rigorous test on
the touchstone of credibility, the extra-judicial confession
could be accepted and it could be the basis of a conviction if
it passes the touchstone of credibility.
37. In the decision in Balwinder Singh v. State of Punjab 1995
Supp (4) SCC 259, this Court held thus:–
“An extrajudicial confession by its very nature is rather a
weak type of evidence and requires appreciation with a
16
Neutral Citation No. ( 2024:HHC:16962 )great deal of care and caution. Where an extrajudicial
confession is surrounded by suspicious circumstances, its
credibility becomes doubtful, and it loses its
importance.”
38. In Ajay Singh v. State of Maharashtra (2007) 12 SCC 341,
this Court held thus:–
“8. We shall first deal with the question regarding a claim
of extra-judicial confession. Though it is not necessary
that the witness should speak the exact words but, there
cannot be vital and material difference. While dealing
with a stand of extra-judicial confession, the court has to
satisfy that the same was voluntary and without any
coercion and undue influence. Extra-judicial confession
can form the basis of conviction if persons before whom
it is stated to be made appear to be unbiased and not even
remotely inimical to the accused. Where there is material
to show animosity, the court has to proceed cautiously
and find out whether a confession, just like any other
evidence, depends on the veracity of the witness to whom
it is made. It is not invariable that the court should not
accept such evidence if actual words as claimed to have
been spoken are not reproduced and the substance is
given. It will depend on the circumstances of the case. If
substance itself is sufficient to prove culpability and there
is no ambiguity about the import of the statement made
by the accused, evidence can be acted upon even though
substance and not actual words have been stated. The
human mind is not a tape recorder which records what
has been spoken word by word. The witness should be
able to say as nearly as possible actual words spoken by
the accused. That would rule out the possibility of
erroneous interpretation of any ambiguous statement. If
word-by-word repetition of the statement of the case is
insisted upon, more often than not, the evidentiary value
of extra-judicial confession has to be thrown out as
unreliable and not useful. That cannot be a requirement
in law. There can be some persons who have a good
memory and may be able to repost exact words, and there
may be many who are possessed of normal memory and
17
Neutral Citation No. ( 2024:HHC:16962 )do so. It is for the court to judge the credibility of the
witness’ capacity and thereafter to decide whether his or
her evidence has to be accepted or not. If the court
believes the witnesses before whom the confession is
made and is satisfied that the confession was voluntary
based on such evidence, a conviction can be founded.
Such confession should be clear, specific and
unambiguous.”
16. A similar view was taken in Ratnu Yadav v. State of
Chhattisgarh, 2024 SCC OnLine SC 1667, wherein it was observed:
“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 (2019) 19 SCC
447(2019) 19 SCC 447, 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, it is 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-judicial confession held that
extra-judicial confession is, on the face of it, 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 a 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 (2023) 6 SCC
605(2023) 6 SCC 605, 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
18
Neutral Citation No. ( 2024:HHC:16962 )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 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.”
(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 had 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.”
17. The extra-judicial confession stated to have been made
by the accused has to be appreciated as per the guidelines issued by
the Hon’ble Supreme Court.
18. Nirmala Devi (PW2) stated in her examination-in-chief
that the accused is her brother-in-law, the elder brother of her
husband. He called her on the phone on 09.03.2012 and asked her
to visit Chowgan No.4 in Chamba town. She went to Chowgan No.
4, where the accused was already present with his wife and
children. The accused confided in her and pleaded to save him
since he had murdered Pawan, son of Uttamo (PW1). He asked her
to arrange an able lawyer for him. She questioned him as to how he
19
Neutral Citation No. ( 2024:HHC:16962 )
had caused the death of Pawan. The accused replied that he had
murdered him in such a manner that he did not allow the deceased
to raise a hue and cry. The accused also told her that the deceased
had an illicit relationship with his (accused’s) wife. The accused
also asked her to arrange some place for his residence and pleaded
before her to keep his family with her. She got frightened and
thought that she would be involved in the case, if she permitted the
family of the accused to reside with her. The accused also pleaded
to make some arrangements for selling the land and told her that
he would leave the place with the family and settle down
somewhere. She returned to her room, and the accused left along
with his family members. She disclosed this fact to Uttamo (PW1).
She was admitted to the hospital as an indoor patient for 12 days.
The accused repeatedly called her on the phone and enquired
whether she had made some arrangement for a lawyer to defend
him and some place for him and his family. Sanjeev Kumar (PW8)
had visited her to enquire about her welfare. She received a
telephone call from the accused. Sanjeev Kumar (PW8) recorded
the conversation. The accused also told her that he had obtained
revenue papers, and he required her signatures on the paper to sell
the joint land. However, she refused to sell the land.
20
Neutral Citation No. ( 2024:HHC:16962 )
19. The learned Trial Court disbelieved the statement of
this witness by holding that it was inherently improbable. This was
a reasonable view taken by the learned Trial Court. Nirmala Devi
(PW2) stated that the accused called her on 09.03.2012 and
confessed to the murder of Pawan Kumar. She informed this fact to
Uttamo (PW1). However, Uttamo (PW1) stated that he came to
know after the lapse of 14-15 days that the accused had pleaded to
save him since he had murdered Pawan. The dead body was found
on 03.03.2012, and the extra-judicial confession was made on
09.03.2012 on the 6th day. Uttamo (PW1) made a complaint to the
police on 16.04.2012, which does not corroborate the version of
Nirmala Devi (PW8) that the accused had a conversation with
Nirmala Devi (PW8), and she had narrated this fact to Uttamo
(PW1). Further, it is not established why the accused should
confess to Nirmala Devi (PW2). Nirmala Devi (PW8) stated that the
accused pleaded with her to save him, but it is not shown that she
was in a position to save the accused. She claimed that the accused
wanted her to keep his family with her, but she declined.
Therefore, the accused had no reason to subsequently make a call
to her. She claimed that the accused was the brother of her
husband and also that the accused asked her to sign some papers
21
Neutral Citation No. ( 2024:HHC:16962 )
for selling the joint land. However, it is not shown that she
possesses any joint land with the accused, which would prompt the
accused to ask her to put her signatures on some documents for
selling the land. Further, her statement that the accused intended
to sell the land and reside in some other place with his family
members cannot be reconciled with the plea of the accused that he
wanted some able lawyer to defend himself. It is nobody’s case that
the accused was suspected of the commission of any crime
involving the death of Pawan. Hence, the accused had no reason on
09.03.2012 to tell Nirmala Devi (PW2) that he had murdered Pawan
and that he should be saved.
20. Nirmala Devi (PW2) admitted in her cross-examination
that she had a matrimonial dispute with her husband for the last
two years, and she was living alone after such a dispute. She made
a statement on 11.03.2013, and as per her, she had a dispute with
her husband for two years before the date of deposition, which
means that she had a dispute with her husband on 09.03.2012 when
the accused is stated to have confessed to her. Since the accused is
the brother of her husband, he would be aware of the fact that
Nirmala Devi (PW2) had a dispute with her husband, and he would
consider her to be the last person to confide knowingly well that
22
Neutral Citation No. ( 2024:HHC:16962 )
any confession made to her would prompt her to disclose it to the
police because of the inimical relationship between her and the
brother of the accused (husband of Nirmala). Thus, the learned
Trial Court had rightly held that the confession made by the
accused to Nirmala (PW2) appears to be highly improbable.
21. Sanjeev Kumar (PW8) stated that he had gone to the
hospital to enquire about the welfare of Nirmala Devi (PW2), who
was undergoing treatment at Chamba. The accused had a
conversation with Nirmala Devi (PW2) on the phone. He admitted
that he had murdered Pawan and thrown him down the hill. He
recorded the conversation and handed it over to Uttam Chand.
22. Significantly, this conversation was never produced
before the Court. As per the statement of ASI Jai Chand (PW20), he
carried the mobile and the voice sample of the accused to CFSL
Chandigarh, but the case property was not received by CFSL
Chandigarh. He carried the same to CBI, CGO Complex New Delhi
and deposited it on 11.06.2012. Therefore, as per the prosecution,
the voice sample of the accused and the conversation recorded on
the mobile phone were both sent to the CBI office for analysis.
However, the report of analysis was not brought on record. As
rightly submitted by Ms. Suman Thakur, learned counsel for the
23
Neutral Citation No. ( 2024:HHC:16962 )
respondent/accused, no application was filed even before this
Court for producing the result of the analysis. Hence, an adverse
inference has to be drawn against the prosecution. Since the best
evidence of the caller was the result of analysis, which was not
produced, no advantage can be derived from the statement of
Sanjeev Kumar (PW8) or the call recording made by him.
23. Sanjeev Kumar (PW8) stated in his cross-examination
that he recognised the voice of the accused on the telephone, but
he did not mention how he could have identified the voice of the
accused. Further, he stated that he had visited Nirmala Devi (PW2)
to enquire about her well-being at 2:00 am when Nirmala Devi
(PW2) was alone. It is highly improbable that the accused would
have called Nirmala Devi (PW2) at 2:00 am, and Sanjeev would
have visited Nirmala Devi (PW2) at 2:00 AM in the middle of the
night to find out about her well-being. Therefore, the whole
version of the prosecution regarding the accused making a call to
Nirmala Devi (PW2) and Sanjeev recording it appears to be highly
suspicious, and the learned Trial Court was justified in discarding
it.
24. Laxmi Devi (PW3) stated that Uttamo (PW1) came to her
with the mobile phone on 07.04.2013 and told her that he had proof
24
Neutral Citation No. ( 2024:HHC:16962 )
of the murder of his son. He further said that the accused had a
conversation with Nirmala Devi (PW2) on a mobile phone, and the
conversation was recorded. She heard the conversation on her
mobile phone and retained the mobile phone with her. She
deposited the mobile phone with the police on 18.04.2012.
25. The statement of this witness is also highly suspicious.
She was Pradhan of Gram Panchayat Kella from 2005-2010. She
knew about the significance of the call recording on the mobile
phone, yet she retained the mobile phone with her instead of
immediately handing it over to the police. She stated in her cross-
examination that she had not disclosed to anyone that she had a
mobile phone having the conversation of the accused with Nirmala
Devi (PW2). She admitted that her husband was a clerk of
advocates. She had told about the conversation between the
accused and Nirmala Devi (PW2) to her husband, who advised her
to unravel the truth. Significantly, it is not shown that she had
taken any action on the advice of her husband or had visited the
advocates with whom her husband was working as a clerk to know
about the further course of action. Hence, the testimony of this
witness was rightly discarded by the learned Trial Court.
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Neutral Citation No. ( 2024:HHC:16962 )
26. Karam Chand (PW9) stated that the accused took him
and the police to the spot on 25.04.2012 and disclosed that he was
returning to his home from Chambi and had a quarrel with
deceased Pawan. He also said that the deceased kicked him, he
(accused) dragged the leg of the deceased and pushed him against
the breast wall. The accused threw the deceased down the hill.
27. His testimony clearly shows that the statement was
made by the accused while he was in the custody of the police and
the police were present. This is also apparent from the fact that
Padam Chand (PW23) stated that the accused was arrested on
19.04.2012 vide memo (Ext.PW23/B). Section 25 of the Indian
Evidence Act provides that no confession made to the police officer
shall be proved as against the person accused of any offence.
Section 26 provides that no confession made by any person while
he is in the custody of the police shall be proved unless it is made in
the immediate presence of the Magistrate. Thus, a combined
reading of these two provisions shows that if the confession is
made to a police officer or in the custody of a police officer, such a
confession cannot be proved.
28. It was laid down by the Hon’ble Supreme Court in
Rajesh v. State of M.P., 2023 SCC OnLine SC 1202 that the confession
26
Neutral Citation No. ( 2024:HHC:16962 )
made by the accused in the custody of the police cannot be proved.
It was observed:
“23. Section 26 of the Indian Evidence Act, 1872 (for brevity,
‘the Evidence Act‘) provides that no confession made by any
person whilst he is in the custody of a police officer shall be
proved against such person unless it is made in the
immediate presence of a Magistrate. Section 27, thereafter,
is in the nature of an exception to Section 26 of the Evidence
Act. It states that when any fact is deposed to as discovered
in consequence of information received from a person
accused of any offence in the custody of a police officer, so
much of such information, whether it amounts to a
confession or not, as relates distinctly to the fact thereby
discovered, may be proved. Therefore, it is essential under
Section 27 of the Evidence Act that the person concerned
must be ‘accused of an offence’ and being in the ‘custody of
a police officer’, he or she must give information leading to
the discovery of a fact and so much of that information,
whether it amounts to a confession or not, that relates
distinctly to the fact discovered, may be proved against him.
In effect, both aspects, viz, being in ‘the custody of a police
officer’ and being ‘accused of an offence’, are indispensable
pre-requisites to render a confession made to the police
admissible to a limited extent by bringing into play the
exception postulated under Section 27 of the Evidence Act.”
29. This position was reiterated in Naresh v. State of
Haryana, (2023) 10 SCC 134: (2024) 1 SCC (Cri) 22: 2023 SCC
OnLine SC 1274 wherein it was observed at page 144:
22. In the instant case, the confessional statement of the
accused relied upon by the prosecution was admittedly
recorded after the arrest of those accused persons when
Accused 4, 5, and 6 were in police custody. Hence, the said
statement would become inadmissible, having regard to the
provisions of Sections 25 and 26 of the Evidence Act 1872.
Section 25 of the Act, in no uncertain terms, makes it clear
27
Neutral Citation No. ( 2024:HHC:16962 )
that no confession made to a police officer shall be proved as
against a person accused of any offence. Likewise, Section 26
states that any such statement is inadmissible if given while
in police custody. For this proposition, the judgment of this
Court in Indra Dalal v. State of Haryana [Indra Dalal v. State of
Haryana, (2015) 11 SCC 31 : (2015) 4 SCC (Cri) 256] can be
looked up.
10. Though PW 19 stated that the appellant again made an
extra-judicial confession at Central Bus Station in the
presence of PSI Mishra, the prosecution has not examined
PSI Mishra as a witness. According to the testimony of PW
25, the statement of PSI Mishra was not recorded during the
investigation. In any event, the alleged confession made by
the appellant before PSI Mishra cannot be proved against the
appellant in view of Section 25 of the Evidence Act, 1872.
Hence, the prosecution’s evidence regarding extra-judicial
confession cannot be believed.”
30. In the present case, confession was not only made in
the custody of the police but in the presence of the police to the
police officer. Therefore, the learned Trial Court had rightly
discarded the confession made in the presence of Karam Chand
(PW9).
31. There is no other evidence to prove the extra-judicial
confession made by the accused to Nirmala Devi (PW2), and the
learned Trial Court had taken a reasonable view while discarding
this piece of evidence.
32. The prosecution further asserted that the accused
suspected that the deceased had illicit relations with his
(accused’s) wife. Bago Devi (PW4) is the wife of the deceased. She
28
Neutral Citation No. ( 2024:HHC:16962 )
stated that six months to one year before the death of her husband,
the accused threatened her that he would kill her husband because
her husband had an illicit relationship with the wife of the accused.
The deceased was not on talking terms with the wife of the
accused.
33. Her testimony is not reliable. She claimed that the
accused threatened her 6 months to one year before the death of
her husband that the accused would kill him. She stated in her
cross-examination that she did not share this fact with anyone.
She did not inform the Pradhan or the Police about the threat
advanced by the accused. She is the wife of the deceased and would
have been concerned by the revelation made to her that her
husband had illicit relations with some woman, and he could have
been killed due to this relationship. Still, she remained silent. She
further claimed that her husband was not on talking terms with the
wife of the accused, which falsifies her version that the accused
had an illicit relationship with the wife of the accused; hence, her
testimony does not prove the prosecution’s case that the accused
suspected that the deceased had illicit relationship with the wife of
the accused.
29
Neutral Citation No. ( 2024:HHC:16962 )
34. Durgo (PW7) stated that she and her children were
present at home on 02.03.2012. Accused Man Singh, his wife and
his uncle were talking in the house. She heard their conversation.
She came to know on 03.03.2012 that the deceased Pawan Kumar
had died around 9 AM. Accused Man Singh used to suspect that
Pawan had illicit relations with his (accused’s) wife and was heard
saying that he would kill the deceased. She stated in her cross-
examination that the accused had told her 3-4 months before the
death of Pawan about the illicit relationship and his intent to kill
the deceased. She disclosed this fact to the mother of the deceased
Pawan after one month.
35. The statement of this witness is also not reliable as she
did not disclose the details of the conversation between Man Singh,
his wife and his uncle. She stated that the accused, Man Singh,
used to suspect the illicit relationship between the deceased and
the wife of the accused, and also, he used to threaten to kill the
deceased, but it is not shown that she had taken any steps in the
matter. She admitted that the wife of the accused had filed an
application with the police regarding her dispossession, and the
matter was compromised in the police station on that application.
This shows that the relationship between the wife of the accused
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Neutral Citation No. ( 2024:HHC:16962 )
and this witness was strained. She further admitted that Uttamo
(PW1) is her brother-in-law as well as the father-in-law of her
niece. This shows that she shares a close relationship with the
informant, the father of the deceased. Therefore, she should have
been alarmed, being a close relative, and should have informed
Uttamo (PW1) about the threat given by the accused and his
suspicion regarding the illicit relationship.
36. Omi (PW5) stated that the house of the accused is at a
distance of 5 minutes from his residence. The house of the
deceased was near the house of the accused at a distance of 2
minutes. The accused was employed as a labourer in his (Omi’s
brother’s) house. Two months before the death of Pawan, the
accused had asked him to advise Pawan to stop visiting his wife
since he suspected that the deceased had an illicit relationship with
the wife of the accused. The accused used to pick quarrels with
everyone and also used to suspect him (Omi) and many others of
having illicit relationships with his wife. The accused doubted
everyone.
37. The statement of this witness shows that the
prosecution evidence regarding the accused suspecting the
deceased having an illicit relationship with his wife cannot furnish
31
Neutral Citation No. ( 2024:HHC:16962 )
a motive to kill him. According to this witness, the accused not only
suspected the deceased, but this witness and many other persons
of having illicit relationships with his wife. Therefore, according to
this witness, the accused was habitual of suspecting every person
of having an illicit relationship with his wife, and it is not
explained why the accused would pick up the deceased for
murdering him.
38. As per this witness, the accused had asked him to advise
Pawan not to visit his (the accused’s) wife. However, it is not
shown that he had taken any action in the matter. He stated in his
cross-examination that he shared this conversation with his
family members but not with the deceased Pawan, his wife, any
other family member of his family, the Pradhan of the local Gram
Panchayat and the Police. Therefore, it shows that he had not taken
this threat of the accused seriously. Hence, his testimony will not
establish the prosecution case.
39. Dr. Navdeep Joshi (PW19) conducted the postmortem
examination and found that the deceased had consumed alcohol
and died due to a head injury. He stated in his cross-examination
that if a person falls from 200-300 meters in height under the
influence of liquor, he could sustain the injuries. Therefore, the
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Neutral Citation No. ( 2024:HHC:16962 )
cross-examination of this witness shows that the deceased could
have sustained the injuries in the normal course by way of an
accident, and there was unsatisfactory evidence of the homicide in
the present case.
40. There is no other evidence on record to show the
involvement of the accused, and the learned Trial Court had taken
a reasonable view while acquitting the accused. This Court will not
interfere with the view of the learned Trial Court, even if another
view is possible, or this Court would have taken a different view
had this Court been trying the matter on an original side.
Therefore, no interference is required with the judgment of the
learned Trial Court.
41. In view of the above, the present appeal fails, and the
same is dismissed.
42. In view of the provisions of Section 437-A of the Code of
Criminal Procedure [Section 481 of Bharatiya Nagarik Suraksha
Sanhita, 2023 (BNSS)], the respondent/accused is directed to
furnish his personal bond in the sum of ₹25,000/- with one surety
in the like amount to the satisfaction of the learned Registrar
(Judicial) of this Court/learned Trial Court, within four weeks,
which shall be effective for six months with stipulation that in the
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Neutral Citation No. ( 2024:HHC:16962 )
event of Special Leave Petition being filed against this judgment, or
on grant of the leave, the respondent/accused, on receipt of
notice(s) thereof, shall appear before the Hon’ble Supreme Court.
43. A copy of this judgment, along with the records of the
learned Trial Court, be sent back forthwith. Pending miscellaneous
application(s), if any, also stand(s) disposed of.
(Vivek Singh Thakur)
Judge
(Rakesh Kainthla)
Judge
7th January, 2025
(Nikita)