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Genu Modi v. State Of Assam
Factual and Procedural Background
Two appellants, convicted by the Additional Sessions Judge, Jorhat on 15.9.89 under sections 302/34 and 201 of the Indian Penal Code (IPC), appealed against their convictions. The prosecution case arose from the disappearance of Petua and Haradhan from Hatigarhgaon in June 1984. A year later, the informant, father of Petua, lodged an ejahar alleging that the appellants and three others had killed and buried the boys. The police registered a case and arrested the accused. The appellants made confessional statements under section 164 of the Criminal Procedure Code (CrPC), leading to the discovery of a human skull and bones, muffler, and trousers at a site pointed out by one appellant. The skeleton was sent for post mortem examination but the cause of death and age could not be determined. Charges under section 302 read with section 34 IPC and section 201 IPC were framed. The appellants were convicted under these sections, while three others were acquitted. This appeal challenges those convictions.
Legal Issues Presented
- Whether the prosecution has established the corpus delicti (the fact of death and criminal agency) in the absence of an eye witness and with reliance on retracted confessions and discovery under section 27 of the Evidence Act.
- Whether the retracted confessions and discovery of skeleton and other items can safely form the basis of conviction.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Rama Nand vs. State of HP, AIR 1981 SC 738 | Before proving the accused as perpetrator, homicidal death must be established; corpus delicti requires proof of homicidal death. | Used to emphasize that the fact of death caused by criminal act must be established before attributing guilt to accused. |
| R. vs. Onufrejczyk, 1985-1 QB 338 | Corpus delicti can be proved without a body or direct evidence by facts that make conviction certain. | Supported the position that circumstantial evidence can establish corpus delicti even without direct proof of death. |
| Anant Chintanan Lagu vs. State of Bombay, AIR 1960 SC 500 | Approval of the principle that corpus delicti may be established by circumstantial evidence. | Reinforced acceptance of circumstantial evidence in establishing corpus delicti. |
| Shrishail Nageshi vs. State of Maharashtra, AIR 1985 SC 866 | A retracted confession may form basis of conviction if corroborated by independent evidence. | Applied to hold that conviction based solely on retracted confession without corroboration is unsafe. |
Court's Reasoning and Analysis
The court analyzed the concept of corpus delicti in homicide cases, which requires proof of death and that the death was caused by a criminal act. The court cited authoritative definitions and precedents emphasizing that establishing homicidal death is a prerequisite before attributing guilt. The prosecution relied on retracted confessions and discovery of skeletal remains pursuant to section 27 of the Evidence Act. However, one body was never found, and the skeleton discovered could not be conclusively identified as belonging to either victim. Family members gave conflicting identifications, and the post mortem did not establish cause of death or age. The court noted absence of a recovery memorandum for the discovery. The accused denied making the disclosure statements. Given these facts, the court found it unsafe to rely on the discovery and retracted confessions, especially without corroboration. The prosecution thus failed to establish the corpus delicti beyond reasonable doubt, and the charges could not be sustained.
Holding and Implications
The appeal is allowed. The convictions and sentences imposed on the appellants are set aside, and they are to be released forthwith.
The direct effect of this decision is the acquittal and immediate release of the appellants. The court did not establish any new precedent but reaffirmed established principles regarding the necessity of proving corpus delicti and the caution required in relying on retracted confessions without corroboration.
RK Manisana, J-This is an appeal by two lifers who were convicted by the Additional Sessions Judge, Jorhat on 15.9.89 under sections 302/34 and 201, IPC in Sessions Case No 30 (J-J) 89.
2. The story of the prosecution, in brief is thus. Petua and Haradhan of Hatigarhgaon disappeared in the month of June, 1984 and they were not seen alive. Sometime in the month of June, 1985,the informant (PW 1) who is father of Petua lodged an ejahar with the Officer-in-charge of Lahdoigarh Police Station on 10.6.85 stating that he came to know from a reliable source that the two boys were killed and burried in a certain place in Tinikunia Bhakat by the two appellants and three other persons. On receipt of the ejahar, a case was registered under sections 302 and 201, IPC. The police arrested the accused persons. The appellants made confessional statements before the Magistrate under section 164, CrPC. In the confessional statement of appellant Genu Modi, it is stated that Petua was killed and his dead body was thrown to Dhansiri river. In the confessional statement of appellant Dangarbabu Modi, it is stated that Haradhan was killed and his dead body was burried at the side of the river Maleng. On the basis of the disclosure statement made by the accused-appellant Genu Modi, in presence of the witnesses and the Magistrate (PW 10) a human skull and bones, a muffler around the skeleton and a pair of trousers were dug up. The skeleton was sent to Doctor (PW 6) for post mortem examination. The Doctor could not say about the cause of death, age of the person. However, he preserved the skeleton for chemical examination. The IO (PW 9) completed the investi gation and submitted charge-sheet, under sections 302 and 201, IPC, against the two appellants and three other persons. The learned Additional Sessions Judge framed charges against the five accused persons including the appellants under section 302 read with section 34, IPC, and a separate charge under section 201, IPC. The accused pleaded not guilty. The Additional Sessions Judge convicted the appellants under section 302 read with sections 34, IPC, and 201, IPC, and acquitted other three accused on all the charges. Hence, this appeal by the two lifers.
3. There is no eye witness. Prosecution relies on the retracted confessions and the discovery of human skull and bones under section 27 of the Evidence Act. Learned counsel for the appellants has contended that 'corpus delicti' has not been established and, therefore, the appellants are entitled to acquittal.
4. Question which, therefore, arises for consideration is whether corpus delicti has been proved. Ballentine Law Dictionary says :
"Corpus delicti-The body of the offence, the substance of the crime. As applied to homicide cases, it has at least two component elements: the fact of death, and the criminal agency of another person as the cause thereof."
In section 35 of the Underbill's Criminal Evidence, Sixth Edition, it is stated : "The Corpus delicti is the body or substance of the crime. It normally contains two elements : (1) the end result of an act, such as, in a homicide case, death; and (2) the fact that the end result was produced by someone's criminal act.
It is sometimes said that corpus delicti also includes the criminal agency of the accused, but this makes the corpus delicti the same as the whole charge, and it is more accurate to say that it includes only the end result and the criminal agency of someone but not of any particular person",
4A. In Wharton's Criminal Evidence, Vol. 1 at page 208, it has been stated in the following terms :
"Definition; essential elements. - The corpus delicti of a crime means the body or the substance of the crime charged. It usually includes two elements : (1). The act, (2) the criminal agency of the Act. In homicide, it consists of death as the result and the criminal agency of another as the means. To the corpus delicti, in this sense, it is requisite, first, that it be shown that the deceased died from the effects of a wound; second, that the wound was unlawfully inflicted, and that the defendant was impli cated in the crime.
The finding of a dead body establishes only the corpus. The finding of such body under circumstances that indicate a crime indicate the delicti or felonious killings. When these facts concur, the first element or the corpus delicti, the criminal act, is made to appear. Hence it is not necessary to the establishment of a complete corpus delicti that identity should be shown, because the dead body and the crime, against it complete all that is indicated by the corpus delicti. The second element is the agency in the crime."
In the above view of the matter, the term 'corpus delicti' as applied to homicide case, contains two components - (a) fact of death, and (b) death was caused by someone's criminal act. In Rama Nand vs. State of HP, AIR 1981 SC 738, the supreme Court has held that
"before seeking to prove that accused is perpetrator of the murder, it must be established that homi cidal death has been caused". Therefere, the phrase 'corpus delicti' means the facts proved make out an offence without ascertaining as to who had committed offence, that is to say, in homicide case, if homicidal death is not proved it is not necessary to ascertain as to who committed offence, and the enquiry as to who had committed offence begins after the corpus delicti or homicidal death has been established.
5. In R. vs. Onufrejczyk, 1985-1 QB 338, it has been held that even though there is no body or even trace of a body or any direct evidence as to the manner of the death of the victim, corpus delicti can be proved by a number of facts, which render the conviction of the crime certain. The Queen Bench case has received approval of the Supreme Court in Anant Chintanan Lagu vs. State of Bombay, AIR 1960 SC 500. In Rama Nand's case (supra), the Supreme Court has observed that the corpus delicti or the fact of homicidal death can be proved by circumstances which definitely lead to the conclusion that within all human probabilities, the victim has been murdered by the accused concerned. This being the position the fact that on offence has been commi tted must not necessarily be proved by direct evidence but it may be proved by circumstantial evidence and other materials admissible under the law.
6. Now coming to the case on hand, the question before us is whether the retracted confession by the alleged murderers (appellants) and the alleged discovery under section 27 can be the basis of conviction of the accused.
7. Admittedly, in the present case, one of the dead bodies was not found at all, and the prosecution case is that skull and bones of one of the dead bodies (which we shall refer to as the 'skeleton') were discovered following disclosure statement made by the accused Genu to the police. The question then is, whose skeleton it was. The evidence of PW 9, the Investigating Officer, is that accused Genu made a statement to him that the dead body of Haradhan was burried near the river Maleng after killing him, and that the accused was prepared to point the spot. Accordingly, the accused was taken to the spot and the skeleton along with a muffler and pair of trousers (which we shall refer to as the 'cloths') were dug up. Family members of Hardhan and Petua could not identify as to who, either Haradhan or Petua, used the cloths. According to PWs 2 and 3, accused Genu showed the place where the dead body of Petua was burried and from that place the skeleton and cloths were dug up. PW 4, father of Petua, and PW 2, a neighbour of Petua, identified the cloths as belonged to Petua. But, PW 5, brother of Haradhan, claims that the cloths were worn by Haradhan. PW 6 the doctor who conducted post mortem examination on the skeleton, does not help us. He, however, has stated the skeleton was of a male. There is no material to show that recovery memorandum was made by the IO in respect of the discovery of skeleton and cloths. The accused Genu in his statement under section 313, CrPC denies that he made the disclosure statement or that he pointed out the alleged spot. In view of the above discussions, we are of the opinion that it would be unsafe to rely on the disclosure statement and discovery under section 27. In other words, the prosecution has failed to prove that skeleton was of Haradhan or Petua.
8. In respect of retracted confession by an accused, it is unsafe to base the conviction on a retracted confession unless it is corroborated by trustworthy evidence. There is no definite Jaw that a retracted confession cannot be the basis of the conviction but it has been laid down as a rule of practice and prudence not to rely on retracted confession unless corroborated. In Shrishail Nageshi vs. State of Maharashtra, AIR 1985 SC 866, the Supreme Court has held that it is well established that a retracted confession by an accused may form the basis of a conviction of that accused if it receives some general corroboration form other independent sources. In the present case, there is no material to corroborate the retracted confession One of the dead bodies was not found at all. The prosecution has failed to prove that the skeleton was of Haradham of Petua. Under these circumstances, it will be unsafe to rely on the retracted confession by the accused and, therefore, the accused-appellants must be given the benefit of the doubt. Therefore, the prosecution has failed to prove the charges levelled against the accuseds.
9. For the foregoing reasons, the appeal is allowed. The convictions of the appellants and sentences awarded against them are set aside. The appellants shall be released forthwith.
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