HIGH COURT OF CHHATTISGARH AtBILASPUR DIVISION BBHCH HON'BLE MR. T.P. SHARMA & HON'BLE MR. R. L. JHANBrAR. JJ. CR. APPEAL N0. 438/2002 APPELLAITT VERSUS RESPONDENT Poyajmi Guddi s/o Hirma Madiya aged about 35 years R/o Koyanapara Chhindwada, P.S. Darbha Distt-Bastar (C.G.). State of Chhattisgarh Through P.S. Darbha. MEMORANDUM OF CRIMINAL APPBAL U/S 374 (2) OF THB CODE OF CRIMINAL PROCEDIJSE. Present:- Shri Arun Kumar Shukla, Advocate for the appeUant. Shri D.K. Gwab~e, G.A. for the State/respondent. ORAL-ORDER (Passedon 05/01/2010) The foUowing order of the Court w^s_p_assed_ bv T.P. 1. Challenge in fbis appeal is to the judgment of conviction and order of sentence dated 15/2/02 passed by the 3rd Additional Sessions Judge, Bastar at Jagdalpiir in Sessions Trial No. 483/2001 whereby and where under after holdinj the appellant guUty for fhe commission of homicidal death amounting to murder of Chamaru, attempt to commit murder to Madavi Kosa and causing simple mji-iry by dangerous weapon to Madavi Lakfaami convicted fhe appellant under Sections 302, 307, 324 of the Indian Penal =-s F*ii-T"3< .;•i^-^'v\ 1 't 'S ^y / '^'f^y •z- — Code and ssntenced imprisoninent for Itfe, rigorous tmprisonment for 5 years and rigorous unprisonm.ent for 1 year. 2. The conviction is impugned on the ground that wifhout any credible evldence court below has convicted and sentenced the appellant aforementioned and thereby committed an Ulegality. 3. Prosecution case in brief on fateful day of 9/10/01 at about 7.30 p.m. appellant, injured PW1 Madavi Kosa deceased Chaciaru consumed liquor and some quarrel took place, appeUant annQyed and went to his house other person also proceeded for ttieir house. Agatn appeUant/accused came with Gaoadci a kuid of arrow and assaulted FW1 Madavi Kosa by arrow shot over tds chick deceased Chamaru came to the spot, appellant also assaulted Madavl Lakhami and he also shot arrow upon the Chamani and caused grievous injiuy as a result of such tnjury Chamaru died. On 10/10/01 dead body of Chamaru was found, vUlage Panchayat was convened, appeUant made extra judidal confession before the Panchavat and admitted fhat he has committed murder of Chamaru. First Information Report was lodged by PW1 Madavi Kosa vide Ex. P-1. Investigating Of&cer also recorded Marg intimation vide P-9 and proceeded for spot, after summoning the witnesses vide Ex. P-4 inquest dver the dead body of Madavi, Chamaru was prepared vide /?€F't!^. .y^.-^ "^ ^ fe/ -^- Ex, P-lO.^Dead body was sent for autopsy to Assistant Surgeon, Darbha Vide Ex. P-11. Autopsy was conducted by Dr. A.D. More PW9 vide Ex. P-20. 4. AppeUant was taken into custody he made disclosure statement of bow and Gagada (arrow) vide P-3 same were recovered at-fhe;'instance of appellant after producmg the saaie from his hbuseVide Ex. P-2, blood stauied and plain soil were recovered vide Ex. P-5, spot map was prepared vide Ex. P-6. Madavi Kosa was sent for medical exaraination. He was examined by PW9 Dr. A.D. More Vide Ex. P-18 and found one incised wound of3 x 5x 3 c.m. from left part of nose to left eair, one mcised wound of5x % x % c.m. over the left palm, one incised wound over flnger ofright harid 2 x % x 1/4 c.m., tncised wound over right p?Jm Ix % x 14 c.m. the face of the injured was deafeced, injury was grievous in natiu-e. Mad&vi Lakfaami was also sent for medical examination. She was examined by PW9 Dr. A.D. More vide P-19 and foiind one incised wound over right arm of 7 x 1 x % c.m. blood stained cloths and tvpo arrow found over the dead body ofthe Chamaru were seized vide Ex. P-12, seized article were sent for chemical examination vide P-16. Statement of fhe witnesses were recorded under Section 161 of Che Code of Criminal Procedure, 1973.(in short the Code^. Aft.er completion of fhe investigation charge sheet was filed before the Judicial Magistrate Pirst Class, Jagdalpur who in .,^fBf^ irt^l 1 'iiia ''ik y ^'y\ ^- tums cominitted to the case of Sessions Judge, Jagdalpur, Leamed Additional Sessions Judge received the case on transfer. 5. In order to prove the guilty of the appellant prosecution exaintned as weU as 9 witnesses, accused was examined under Section ,'313 of the Code where he denied fhe circum.stances appearing against htm. and innocency and false impllcation is clauned. 6. After affordmg an opportunity of hearing to (he parties leamed Additional Sessions Judge convicted and sentenced the appeUant as aforementioned. 7. Leamed coUnsel for fhe parties are heard. Judgment impugned and record of Court below perused. 8. Leamed counsel for the appellant vehemently argued that prosecution was iinder obligation to prove its case beyond all shadow of doubts. Prosecution cannot take fhe benefits of the weakness of the defence. According to ftie case of fhe prosecution the conviction is based on the statement of fhe eye witnesses/injured wifnesses PW1 Madavi Kosa and PW2 Madavi Lakhavi and extra judicial confession inade by fhe accused to PW4 Shadev and PW5 Cheranga, the extra judicial confession is a week type of evidence and without any substantive ccaroboration fhe convection only on the basis ofextrajudicial confection would not be safe. -^ 9. On the other hand, leamed counsel for the State/respondent opposed the appeal and submits that case of tfae prosecution is based on the evidence of eye witnesses, PW1 Madavi Kosa and PW2 MadaVi Lakhavi, they are also injured and extra. judicial confession which are suffident for conviction of the appellant. - ';' 10. In order to appreciate fhe argument advanced on behatf of the parties we have exainined fhe evidence adduced on behalf of the prosecutlon. In the present case homicidal death of Chainaru is not substantially disputed by the defence/appellant otherwise also estabUshed by the evidence of PW9 Dr. A.D. More, autopsy report Ex. P-20 which reveals that two arrow was found m fhe body of deceased Chamaru, one over the 3rd inter costal area and second over fhe left thigh and stab wound over 3rd inter costal area of 4x 3 x 14 c.m. incised wound over left thigh of4 x 2 x 1 c.m. Lungs was also punchered, cause of death was shock as a resiilt of intemal hemorrhage and death was homicidal in nature, grievous injury over the body of Madavi Kosa and simple injury over fhe body of Madavi Lakhami are also not substantiaUy disputed by the appeUaitt ofherwlse also estabUshed by the evidence ofPW9 Dr. A.D. More Ex. P-18 & Ex. P-19. . - 11. As regard the complicity ofappeUant wifh crime tn question is concemed PW1 Madavi Kosa, rnjured witness has """ '-;% ^! ^ — f. specifically 'deposed that appeUant assaulted him by Gagada a kind of arrow over his chick and nose fhen he feU down his wlfe PW2 Madavi Lakhami and his brother Chamaru were also present on the spot. PW2 Madavi Lakharai" irgured witaess has also deposed that appeUant shot arrow upoiy her husband Madavi Kosa and also upon her. Defence has cross examtned these witnesses at length but has not been able to itlicit anything in their cross examtnation to discredit this part of (he testunony. Both the witnesses have deposed that appellant has assaulted Chamaru but fhey have not seen the incident. 12. PW4 Shadev.has deposed in his evldence that when he came to know fhe factum of murder of Chamaru then Panchayat was convened he is a Panch. In Panchyat, appellant made extra judicial confession that he has kUled Chamaru by arrow anofher witness of Panchavat PW5 Cheranga has deposed that m Panchayat appellant has made a disclosure statement that quarrel took place after consiuning the liquor and he has killed by arrow but he has not named fhe person whom he has kiUed. Defence has cross examiined PW4 Shadev at length but has not asked any question relating to extra judicial confession made by the appellant to fhis witness before the Panchayat. Defence has not been able to illicit anything in his cross examination to discredit the testimpny of fhis witness. FW1 Madavi Kosa and PW2 — - —~-^~^~ '€9 y Madavi Lakhami are injiired witnesses fhey have coiTOborated their injury and the fact that appellant had assaulted ttiem their evidence inspire confidence trustworthy and safe to rely. Extra judicial confession is a week type evidence and it reqiures corroboration but once it is proved to be tru'jS fhen same is suflicient for conviction, 13. While dealtng with the evidentiafy value of extra-judicial confession made under Section 24 of the Evidence Act, (he Apex Coiirt in fhe matter of Baldeu Stnfjh v. State of Pun/dhl has held fhat extra-judicial confession is generaUy of weak type of evidence. No conviction ordinarily can be based solely thereupon unless same is corroborated in material particulars. 14. While dealing with the same question, the Apex Gourt in the matter of SSohd. Azctd (% Scunin v. State of West Benaa.12 has held that if extra-judicial confession made voluntarily and truth in a fit state of mind then it can be relied upon and confession wUl nave to prove Uke m any other evidence. Para 22 offhe saldjudgment reads as under:- "2'2. An extra-judidal confession, if vohintary and frue and made in afit state ofrmfzd, can be reliedupon by the court. Tke confession will have to be proved like any otherfact. The value ofthe evidence as to confession, Uke any other evidence, depends upon the veradty of ihe witness to whom. tt has been Tnade. The value of the evidence as to the ionfessmn depends on the reliability of the witness who gives the evidenoe. li is not open to any 12009 AIR. SCW 3730 22009 AIft SCW 752 ^"B^ 1Jli a& ,4y —^ oourt, (o s(ari wrth a presumption that extra-judidal (x>nfession is a weak type of evidence. It v/auld depend on the nature of the drcumstances, the time when the confession was nw.de and the credibility ofthe witnesses who speak to such a confession. Such a oonfession can be relied upon the conviction can be founded thereon if the evidence about the oonfession comes from. the mouth of witnesses who appear to be unbiased, not even renwtely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a.nwtive of aitributing an unlruihjul siatement to the dccused, fhe words spoken to by the witness are dear, unambiguous and unmisfakably convey that the accused is the perpefrator of the crime and nothing is ondtted by the witness which may mi'ftfafe against it After subjecting ihe evidence of the witness to a rigorous test on the iauckstone of credibility, the extra-judidal confession can be accepted and can be the basis of conviction ifit passes the test of credibility 15. In the present case PW4 Shadev who is Paach of the viUage has specifically deposed fhat when he cacue to know that Chamaru has been murdered by arrow shot then Panchayat was convened. Appellant was present in that Panchayat and appeUant made extra judicial confession that he has kUled Chamaru by arrow shot. He has also supported the other part of the investigation his statement find support from FIR Ex. P-1 and also from the statement of PW5 Cheranga, the evidence of PW4 Shadev msptre confidence trustworthy. 16. After appreciating fhe evidence avaUable on record leamed Additional Sessions Judge convicted fhe appeUant for commission of (he offence purdshable under Sections 302, 307 8s 324 of the Indian Penal Code. Two arrow was found over the body of the Chamaru one-was inter costal area (chest) and has also punchared the liing. Injiuy caused by ,r-»Sia. ^:'a "^ "'^ ~%, '^ fi' -^ arrow shot itsetf shows the grave intention of committmg the homicidal death amountmg to murder of Chamaru. The convlction and sentence of the appellant are based on clinching and<;redible evidence sustamable under fhe law. 17. On close^ scruttny of fhe evidence, we do not find any illegality or infirmity in fhe finding or approach of the Court below warranting any interference. Consequenfly, fhe appeal is liable to be dismissed and is hereby dismissed. Sd/- TP.Sharma Judge r. Sd/- R.L. Jhanwar Judge :r-"|r