iiiiiiwjir^,i3&.^--±"^^s.i s" ^^ HIGH COURT OF CHW^TTISGARH. Bll-ASPUR APPELLANT: (InJail) Criminal Appeal No.821 <rf 20021 Salbam Kanna S/o Salbam Sukka aged about 34 years R/o Balgudapara Phandeiguda P.S. Konta Distt. Dantewada, C.G. Versus RESPONDENT: State of Chhatttegarh {Criminal appeal under SecUon 374 (2) ofthe Code rfCriminal Procedure, 1973} Present: Mrs. Usha Chandrakar, counset for the appellant. MF. Qamrul Aziz, Panel Lawyer for the State/respondent. Division Bench: - Hon'ble Mr. T.P. Shamia & Hon'bte Mr. R.L. Jhanwar. JJ ORALJUDGMENT (8-2-2010) T.P.Sharma.J:- 1. Challenge in this appeal is to the judgment ofconviction & orderof sentence dated 24-5-2002 passed by the 2" Addittonal Sessions Judge, Bastar at Jagdalpur, in Sessions Trial No.39/2002, whereby & whereunder leamed Additional S^sions Ju(^e after holding the appetlant guilty for commisste)n of culpatrie homfcide amounting to murder of Salbam Kanna, convicted the eypellant under Sectton 302 of the I.P.C. and sentenced him to undergo imprisonment for Hfe. 2. Judgment is impugned on the ground that without any iota ofevtelence, the Court betow has convicted & sentenced the appellant in the aforesaid manner and thereby committed illegality. 3. Case of the prosecution, in brief, is that on the teteful day pf 22-11 -2001 at about 10 p.m. at VillageBalgudapara, PoticeStation Konta, Dlstt. Ba$tar, theappenant assaulted deceased Salbam Kanna with wooden stictc over his heiad and when deceased Salbam Kanrra fell down, the ^ T iii.l.i} s-ssg^^ss. ^ .s>',<'""' ••^, ''•ii: '"5 S '^'i.y' .-^ a("(»^'1 appellant assautted the deceased over neck with knife. On 23-11-2001 Panchayat was convened and the appetlant was called by the Panchayat. The appellant msKle extra judtcial confe^ion before the Panchayat that he has committed the murder of Salbam Kanna and tre hasalso produced the weaponsviz., woodenstick & knife befope the Panchayat. Salbam Erra (PW-1) went to the Police Statlon on seeond day and lodged F.I.R. vlde Ex.P-1. Merg was also recorded. The Investigating Officer left for the scene of occurrence and after summoning the witness^ vide Ex.P-9, inquest over the dead body of the deceased was prepared vide Ex.P-2. DesKl body was sent for autopsy to Primary Heatth Centre, Konta andautopsy was conducted by Dr. S.P.S. Shandilya (PW-5) vicle Ex.P-7 who found following injuries: - (1) Incised wound over neckofT' length 1 %" depth. (2) Trachea, esophagus, jugular vein & carotid artery were found cirt. (3) One depressed abrasion and lacerated wound over parietal region, bone beneath the injurywas found frsKstured. (4)0ne stab woundon root of penis, depth was %", scrotum was swollen. Reath was due to cardio respiratory failure as a result of excesswe haemorrhage. 4. Btood stained soil and plain soil were rwovered fr<xn Uie spot vide EX.P- 3. Spot map was prepared vide Ex.P-4. One stick & knife were sefced vide Ex.P-5. The accused was arrested vide Ex.P-6. Seized artfcles were sent for examlnation to the doctor vide Ex.P-BA. Dr. S.P.S. Shandilya (PW-5) examined the arttcles vide Ex.P-8. Sealal ctottes of the deceased were seized vide Ex.P-11. Seized articles were sent for chemicatexamination vide Ex.P-12. |5. Statements of the witnesses were recorded uncter Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed ^f' ^ isy-J before the Judicial Magjstrate First Class, Sukma, who in tum, cranmitted the case to the Court of Sesstons, Jagcfalpur, from where learned Addittonal Sesstons Judge received thecase on transfer fortrial. 6. In order to prove the guilt of the appellant, the p'osecution has examined as many as six witnesses. The accused was examined imder Section 313 of the Cr.P.C. in which he denled the circum^ances appeartng against him, pleaded innocence & felse implteation. 7. After affording opportunity of hearing to the parttes, leamed Additional Sessions Judge has convicted & sentenced the appellant as aforementioned. 8. We have heard leamedcounsel for the parties, perused the judgraent and record of the trial Court. 9. Learned counsel for theappellant vehemently argued thatconvictkan of the appellant is basedon the all^Kl extra jydiciat confession made by the accused before the Panchayat, but the evidences of Salbam Erra (PW-1) & Salbam Podda (PW-2) relating to extra judicialconfession are not safe to rely. Salbam Erra (PW-1) has specificsrtly deposed in his evidence that at the instance of and on the advise of the Panchayat, the appellant has made e)dra judicial confession which shows that the appellant has not madeany extra judicial conf^sion volurtarily. The prosecution has not acklucedany other evKlence except the evidence of extra judicialconfession. Even the exh-a judicial confesston isa weak type of evidence and is not sufficient for convlction ofthe appellant. 10.0n the other hand, learnedState couns^ opposed theappealand submitted that the extra judicial confession once proved is sufflcient for \ drawing inference that the appellant has commltted the offence. In the \ present case, the appeitant has made extra judicial confesslon voluntarily —^1——'-'^^ lra£...c-—---^ before the Panchayatand even he has produwd the weapons of offence before Uie Panehayat which are sufficient for convicBon of the appellant. 11.1n order to appreciatethe arguments advancal on behalf of the parties, we have examined the evidence adduced on behalfof the prosecution. 12.1n the present case, homlcidaldeath of the decea^ as a resutt of ante- mortem fatal injuries has not been substantially disputed by the appetlant, otherwise alsoestablished by the evidence of Dr. S.P.S. Shandilya (PW-5) and the autopsy report Ex.P-7 which reveal thrt fatal injuries found over neck and head of the deceased were sufflclent for causing his death andthe death was homicidal in nature. l3.As regards complicity of theappellant in ttiecrime in question, conviction of the appetlant is based on the extra judicial confession made by the appellarrt before the Panchayat. Salbam Erra (PW-1) has depo^d in his evidence that mrther of the deceasedtold him that her son has dled, then he went to the spot and calted the meeting. Entire villagers gathered in the meeting and in the Panchayat they asked as to who has assaulted the deceased. The appellant was also present in the meeting. The appellant has made extra judicialconfession before the Panchayat that he has killed deceased Salbam Kanna wlth wooden stick & knife. The appetlant has also produced stick & knife. They took the accused to Police Station Konta where Salbam Erra (FW-1) lodged report vlde EX.P- 1. The police has seized stick & knife vide Ex.P-5. 14-Satbam Podda (PW-2) has also deposed in his evtelence Ihat the Panchayat was convened, the appetlant was alse present in the Panchayat and membersof the Panchayat asked as towho has killed Salbam Kanna on which the appellant told that he has killai Salbam Kanna with knife & stick and he has also produced knife & stick. ~^-:''-. > *1"" '^. HWW*S»B»-A 15.0efence has cross-examined these witnesses at length. In para 7 of his cross-examination, Salbam Erra (RA/-1) hasadmitted that meeting was called with a view to enquire that asto who has kllled dweased Salbam Kanna, firstly the appellant denied that he has not killed. In para 8 of his cross-examination, this witness has further admitted thatthey were discusslng in the meeting that if name of the accused who has killed; deceased Salbam Kanna is not known, the Police will harass the villagers, then the appellant told thePanchayat that he has kllled Satbam Kanna and aiso produced stick & knife. 16.8albam Podda(PW-2) has admitted in para 3 (rf hte CToss-eiamination that it was also told in the Panchayat that in case if name of the accused is undetected, they wlll provide bloodstained rice to all the viltage. ^ then the person who has kitted deceased Salbam Kanna will die. This witness has also specifically stated that after completion of Panchaysrt he went to his house. 17.These witnesses are the rustic villagers residing in a dens^ forest not wetl acquainted with procedures & rules, but the evidences of these witnesses reveal that when they came to know that Salbam Kanna has been murdered by some person, they immediately convened the Panchayat meeting and tried to ascertain as to who has kiBed deceased Salbam Kanna. During the course of meetlng, they asked all the persons as to who has killed deceased Salbam Kanna and they also opined that in cas&the offender is undetected, the police will harass all the villagers, even they tried to ascertain the facts by their local mode that they will provide bloodstained rice to all pera>ns and the culprit who has committed the murderwill ultimately die. The Panchayat has not applied this mode only upon the appellant, but it has applied this mode ^.t"s^-:-,.^-^ . ft?^",,^ '^' ...^v' ^•••.^ss^i^ IgBtBe'&'" i- SifKffiSa^ upon all the persons. The appellant came forward and admitted his guilt and also produced the weapons of offence. Thls cleariy reveals that the Panchayat has not induced or threatened the appellant. The Panchayat has not threatened the appellant for extra judidal confession, but tt has warned all the villagers who were present during the course of Panchayat and out ofall the villagers, the appeUant was the person who has admitted his guilt and also produced the weapons. This furtfier shows that the appellant has made extra judicial confession voluntarily and without any fear that he has killed Salbam Kanna. AUhmigh the extra judicial confesslon is a weak type of evklence, but once it is proved to be true, same would be sufficient forwarranting conviction. 18-White dealing wtth theevidentiary value of extra-judp,al confession made under Section 24 of the Evidence Act, the Apex Court in the matter of Baldev Singh v. State of Punjab has held that extra-judlciat confessipn is generatly a weak typeofevidence. No conviction ordinarily can be based sotely thereupon unless same ts corroborated in material particulars. 19.While dealing with the same quretion, the Apex Court inthe matter of Mohd. Azad @ Samin v. State of West Bengal has hehl that if extra- judicial confession made voluntarily and truth in a fit state of mind then it can be relied upon and confession will nave toprove like in anyother evidence. Para 22 of the said judgment reads as under:- "22. An e)dra-judicialconfesston, if voluntary and true and made in a frt state of mind, can be reHedupon by the court. The conf^sion will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The \ 1 2009 AIRSCW 3730 22009AIRSCW752 ~\ ^E^.. ^-. JiSitir' value of the evidence as to the confesslon depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judiciat confession is a weak type of evidence. It would depend on the nature of thecfrcumstances, the time when the confession was made and Uie credibility of the witnesses who speak to such a confession. Such a confession can be relied upon the conviction canbe founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not evenremotely inimical to the accused, and Jn respect of whom nothii^ is brought out which may tend to indicate ttiat he may have a motive of attributing an untruthful statement tothe accireed, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused Isthe perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous t^i on the touchstone of credibility, the extra-judteial confession can be accepted and can be the basis of convictfon If it passes the test of credibllity." 20.The Apex Court in the matter of Shiva KaramPayaswami Tewar v. State of Maharashtra3 has heU that statement may be oral or written, the admission of guilt would amount to a confessiCTi whether K is communicated to another or not. 2l.While dealing with thesamequestion, the Apex Court in the matter of State of Punjab v. Harjagdev Singh4 has held thatevery induoement, threat or promise does not vitiate a confession. Normally extra-judicial confession is a weak type of evidence and shall not be retied upon without further corroboration from other soure^- '3 2009 AIRSCW 1226 42009AIRSCW4tM ^ ^j fSSf l:t; tit»t8tft:s- A ii... ••• 22.Theevidences ofSalbam Erra (PW-1) & Salbam Podda (PW-2) clearly reveal that the appellant has made extra judteial confession and has admitted the guilt that he has killed deceased Salbam Kanna and also produced the weapons. The evidences of Salbam Erra (PW-1) & Salbam Podda (PW-2) inspire confidence, their evklences are trustworthy and safe to rely. 23.As regardsthe question of motlve, in the present case, injuries found over the bodyofthe deceased show that fatal injuries by ^ick & knife have been caused over neck & h^id of the deceasedwhich show grave intention of the accused of causing the murder of the deceased. Injuri^ Tound over the body of the deceased, weapons usal and parts of the body effected show that the appellant has intentionally caused the murder ofthedeceased. 24.After appreciating the evidence adduced on behalfofthe prosecution, learned Additional Sessions Judge has convictedthe appellant under Section 302 ofthe I.P.C. and sentenced him to undergo imprisonment for life. Conviction of the appellant is based on tegal, clinching and credibte evklence sustainable under the law. 25.0n ctose scrutlny of evidence, we do not find any illegalfty or irregularity in the judgment impugned. The appeal is devoid of merit, same is liable to be dismissed and it is hereby dismissed. —— ' •ssma Sd'- T.P. Sharma Judge Sd/- R.L. Jhanwar