^; HIGH COURT OF CHHATTISQARH AT BII.ASPUR DIVISION BBNCH CORAM: HON'BLBMR. T.P. HON'BLBMR. R.L. JHANWAR. JJ. Criminal ApDeal No. 581/2004 APPBLLANT (IN CUSTODY) VBRSUS RESPONDBNT Parika Viz Petaku, S/o Jhijfaara Viz Jhijharoo, Aged about 42 years R/o Village Bohile phiphalipani Police Station Kukdur, District Kabirdham (C.G.). The State of Chhattisgarh Through P.S. Kukdur District Kabirdham (C.G.). MBMORANDUM OF APPBAL UNDER SECTION 374 (21 OF THE CODE OF CRIMmAL PROCEDURB. Present- Mr. Sudhir Verma, Advocate for the appeUant^ Mr. Arun Sao^ G.A. for the State/respondent ORAL-JUDGBMBNT (Passed on 13/09/2010) The followins iudfirment of the Court was oassed bv T.P. Sharma. J:- 1. Challenge in fhis appeal is to fhe judgment of conviction aad order of sentence dated 27/4/2004 passed by Additional Sessions Judge (F.T.C.) Kawardha in Sessions Trial No. 175/2003 whereby and where under after holding the appellant guilly for fhe offence of commission of culpable faomicide amounting to murder of his wife Sukariya Bai convicted the appellaiit .../ under Section 302 of the Indieai Penal Code and sentenced Itfe imprisonment and fine of Rs. 200/- in default of payment of fine aniount additional rigorous imprisonment for 3 months. 2. Conviction is impugned on the ground fhat without any iota of evidence sufficient for conviction of fhe appellant, Court below has convicted and sentenced fhe appellant as aforementioned and fhereby committed an megaUty. 3. Brief case of the prosecution is, Siikariya Bai (s&nce deceased) wife of appellant was residing wifh appell^at at Phiphlipani Police Station Kukdur EMstrict Kabirdham. AppeUant was having suspicion that his wife Sukariya Bai since deceased was having illicit relation with his uncle Mehattar. On fatefui day of 21/9/2003 between 12 to 2 P.M. Sukariya Bai had gone to watch the field. Mehattar was also fishing ia Nala near by fhat field. Appellant went to fhe field along with axe. Appellant took her wife towards foi^st fhere he assaulted his wife by axe. She fell down and died on the spot then he kept the axe near ttie field (Baber) and went to fhe house of Mehattar where son of Mehattar Veersingh was present. He demanded bow and arrow from son of Mehattar. PW9 Veersingh was Ul and who directed to take bow and arrow from fhe room then K^^:^ appellant took out the bow and arrow and went towards field Mehattar (since deceased) was present near fhe place where countiy made liquor was used to prepare. He saw the appeUant and reached towards forest fhen he shot arrow to Mehattar. Mehattar fell down then he further assaulted him by axe Mehattar died. Appellant came to his house along with axe and bow. He hidden bow and axe in his house. VUlagers came to know about fhe incident. Appellant made extra judicial confession to PW1 Chaitram, PW2 Panuram and also to the member of Panchayat thereafter PW1 Chaitram went to fhe police station and lodged Marg intimation vide Ex. P-1 on the basis of Marg intimation again numbary Marg intimation was recorded vide Ex. P-17. Dehatinalshi was recorded vide Ex. P-12-A. First Informadon report was lodged vide Ex. P-12. Rojnamcha was recorded vide Ex. P-13C. After siimmoning the witnesses vide Ex. P-5 inquest over fhe dead body of deceased was prepared vide Ex. P-6. Dead body was sent for autopsy to Prunaiy Healfh Center, PandariyeL Autopsy was conducted by PW3 Dr. V.P. Jaiswal vide Ex. P-8 aad found foUowing injuries.:- (1)- Injmy over rigtit mandible with fracture. (2)- Incised wound of4x 3 x 1 c.m. over right side of the chest. .^'••^^.^•^ I ^•, '••/-€^"'% ^IWi;'. ^ t* ^. T':"^^ (3)- Incised wound of5x2 x 1 C.M. over rigtit side of fhe maxiUa. (4)- Incised would of 2x1x1 C.M. oyer right forearm. (5)- Bone of skull was found fractured and brain matters was coming out firom the injiiry. Deathwas homicide in nature. 4. Appellant was taken in to custody on 25/9/03. He made discloser statement of Axe and bow vide Ex. P-2. Bow was recovered at tfae instance of appellant vide Ex. P-3. Axe was recovered at fhe instance of appellant vide Ex. P-4. Spot map was prepared vide Ex. P-7. Seized property were examiaed by doctor Vide Exs. P-9, P-10 8& P-11. Patwari also prepared spot map vide Ex. P-14- A. Clofhs of ftie accused were seized vide Ex. P-15. Sealed cloths ofthe deceased were seized vide Ex. P-16. Sealed articles were sent for chemical examination vide Exs.P-18,P-19&P-20. 5. After recording fhe statements of the witnesses imder Section 161 ofthe Code ofCriminal Procedure, 1973 (in short the Code') and on completion ofthe investigation, chai^e sheet was filed against the accused/appellant in the Court of ChiefJudicial Magistrate, Kabirdham, who ia tum coinmitted the case to fhe Court of Sessions, ^'o 6. Rajnandgaon firom where the leamed Additional Sessipns Judge, received the same on transfer for trial. In order to prove flie guilt of the appellant/accused prosecution exammed as many as 11 witnesses. Accused was exanained under Section 313 of the Code in which he denied the circumstances appearing against him and claimed innocency and false implication in crime in question. After providing, an opportunity of hearing to the counsel for fhe pardes and perusing the evid^ice adduced by them leamed Additional Sessions Judge has convicted and sentenced the accused/appellant as aforementioned. Learaed counsel for fhe appellant Mr. Sudhir Veraaa, and leamed G.A. for the State/respondent Mr. Arun Sao are heard and perased (he material avedlable on record including fhe judgment impugned. Learned counsel for fhe appellant vehemently argued that m fhe present case accused has convicted for murder of two persons in two different session trial Nos. i.e. 175/03 and 176/03 for murder of Sukariya Bai and Mehattar on ftie basis of evldeirce of PW1 Caitram, PW2 Panuram and son of deceased Mehattar PW9 Veersingh. 1 10. As per case of the prosecution appellant has made extr^udicial confession before PW1 Chaitram and PW2 Paiiuram but as per Para-3 of fhe cross exaininatiion of PW1 Chaiti'am he has clearly stated that appeUant has not made any statement before htm which suffice fhe factum ofextrajudicial confession made before liim. 11. As regard the extrajudicial corrfession made before fhe PW2 Panuram is concemed. In para-1 of his statement Panuram has deposed that appellant has made extregudicial coirfession before him. In para-3 he has admitted that no Panchayat was ccaivened before reaching of poUce at his village but again he has deposed in Para-8 of his cross examination that Panchayat was convened thereafter police came it shows fhat he had frequenfly change his version and his statement does not insplre confidence. Likewise son of deceased Mehattar PW9 Veersingh has only stated that appellant has taken bow and arrow for killing Ihe animal which is not relevant for this case. 12. Leamed counsel for fhe appellant placed reliance in fhe matter of State of Chhattissiarh v. Brifoal1 in which this Court has held fhat confession made to Police Ofiicer is not admissible in evidence. Reeovery of the '2004 (1) M.P.H.T. 42 (C.G.) article which was known to eveiyone is not admissible under Section 27 of fhe E^vidence Act. 13. On fhe other hand leamed eounsel for fhe State/respondent opposed the appeal and submits that conviction of the appellant is based on extr^udicial confession made by appellant before PW1 Caltram & PW2 Panuram. He has voluntarily given extrajudicial confession which is admissible in evidence. Evidence of PW9 Veersingh is relevant evidence and corroborative evidence for this case. He has taken bow and arrow from the house of deceased Mehattar and has caused murder of Mehattar by arrow. 14. In order to appreciate the ai^uments advanced on behalf of the parties, we have examined the evidence adduced on behatf of fhe prosecution. 15. In fhe present case homicidal deafh as a result of fatal injury found over the body of deceased Sukariya Bai has not been substantiaUy disputed on behalf of fhe appellant on fhe other hand otfaerwise also established by fhe evidence of PW3 Dr. V.P. Jaiswal and autopsy report Ex. P-8 which reveal the fatal injmy found over the head of the deceased Sukariya Bai and death was homicidal in nature. 16. As regard the compUcity of appellant in crime in question, conviction of liie appeUant is based on extregudicial confession made by the appeUant and corroborative circuinstances that just after causing fhe death of Mehattar he has taken bow and arrow from fhe house of Mehattar. As per evidence of PW1 Caitram present appellant made extrajudid.al confession to him that he has committed murder of his wife Sukar^a Bai and otfaer person Mehattar but in Para-3 of his cross examination he has deposed that present appellant has not made any confessional statement or any statement before him relating to commission of murder of any person fherefore the evidence of PW1 Caitram is not relevant relating to confessional statement made by fhe appellant. As per eviden<% of PW2 Panuram he has deposed in his evidence that appeUant made coiifessional statement before him and elder persons of the vUlage that he has killed Sukarfya Bai and also to Mehattar in forcst by axe, bow and arrow. fo para -3 of his cross examination he has deposed that before coming of Police meeting was not convened and he was not present aay meeting but in Para-8 of his cross examination he has specificaUy deposed that at moming time Panchayat was convened himself, Chetram and Bichhi Baiga and ofher persons were present in ftiat Panchayat. Present appellant has made confession before them that he has kffled Sukadya Bai s-. and Mehattar. Defence has again cross examined fhis witness. In Para-9 of his ctoss exaoaination he has specifically admitted that appeUant has made confession before him in Panchayat fhat he has Idlled Sukariya Bai and Mehattar. Virtually this witness has not changed his version but has explained fhe statement in detaU. As per Ms evidence present appellant has made extrajudicie^ confession before him that he has killed Sukariya Bai and Mehattar. 17. While dealing with the evidentiaiy value of extra- judicial confession made under Section 24 of the Evidence Act, fhe Apex Court in fhe matter of Baldev Sinyh v. State o/Pw^cSf2 has held fhat extra-judicial confession is generally of weak type of evidence. No conviction ordinarily can be based solely ttiereupbn unless saine is corroborated in material particulars. 18. WhUe dealing with the same question, ftie Apex Court in the matter of Mohd. Axad (% Seimin u. State of West BenoatS has held fhat vS extra-judicial confession made voluntarily and truth in a fit state of mind fhen it can be relied upon and confession will nave to prove like in any other evidence. Para 22 offhe saidjudgment reads as under:- 22009 AIR SCW 3730 32009 AIR 8CW 752 10 •^^ ^ h-^^ \..A <<22. An extra-judicial coxifession, if voluntaiy aad true aad made m a fit atate of mind, can be rclied upon by fhe coiirt, The confession will have to be proved Uke aay ofher fact The value of fhe evidence as to confession, TSke aay otiher evideace, depends upon the veracity ofthe witoess to whom it has been made, The value of fhe evidence as to fhe confession depends on fhe reUabtlity of fhe witaess who gives fhe evidence. It is not open to any court to start wifh a presumption fhat extra-judicial coiifession is a weak type pf evideiice, It would depend on ffae nature of fhe circumstaaces, the time wheai the confession was made and fhe credibiUly of fhe witnesses wbo speak to such a confession, Such a confession caa be reUed upon the conviction caa be fozmded fhereon ifthe evidence about fhe confession comes fix>m fhe xaoufh of witaesses who appear to be unbiased, not even remotefy inimical to fhe accused, aad ia respect of whom nofhiag is brought out which may tend to indicate fhat he inay have a motive of attributing an iiatrufhful stateineat to fhe accused, fhe words spoken to by fhe witaess are clear, unainbiguous aad urmiistakabfy convey fhat the accused is tihe perpetrator of the crinie and nofhing is oinitted by fhe witness which may militate ^aiast it, After subjeotiag the evidence of tfae witness to a rigorous test on the touchstone of credibiUty, fhe extea-judicial confession cani be accepted aad caa be the ^/'£^\ ' ?s^,. ^. 11 ^ ^' basis of conviction tf it passes the test of credibiMty", 19. PW9 Veersingh has deposed in his evidence that just before fhe commission of murder of Mehattar present appellant had come to his house and demanded bow and arrow. In his cross examinadon he has specifically deposed that he has heard the sound of appeMant which he recognized weU and present appellant has taken bow and arrow which has used commission of murder of Mehattar, it is relevant facts in case of murder oft(vo persons. 20. In the present case conviction is substantially based on evidence of PW2 Panuram before whom appeBant has made extrsgudicial confession. As held in case ofiState of Chheitttsaarh fSuswa) confession made to police is not admissible and the facts known eveiybody cannot be discovered iinder Section 27 of the Evidence Act. In the present case nothing has been discovered under Section 27 of fhe Evidence Act which was known to everyone and Court below has not relied confesision made by fhe appellant to the Police but has relied extrajudicial confession made by the appellant to PW2 Panuram. 21. After appreciating fhe evidence available on record leamed Additional Sessions Judge (F.T.C.) Kawardha i 12 has convicted and sentenced the appellant as aforementioned. Conviction of the appellant is based on legal and clinching evidence of extrajudicial confession made by appellant to PW2 Panuram. Leamed Additional Sessions Judge (F.T.C.) Kawardha has not committed any fflegality in convicting and sentencing the appellant for commission of miirder of his wife Sukariya Bai, we do not find any UlegaUty in fhe conviction and sentence of fhe appellant Criminal appeal is devoid of merits. Consequently, criminal appeal is liable to be dismissed and is hereby dismissed. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge •r^