ilL.4^' "T ";'; ^' HIGH COURT OF CHHATTISGARH. BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARWIA AND HON'BLE MR. R.N. CHANDRAKAR, JJ. Criminal Appeal No.716of2005 Bhoj Ram - Versus - State of Chhattisgarh -t: JUDGMENT FOR CONSIDERATIQN 'BLE MR. JUSTICE R.N. CHANDRAKAR _°) c^y-t^e- Cj Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge ^ ^ Post for pronouncement ofiudamenton 9U AuHust.2011 Sd/- ^ / ^! :!iB 1 IBnl S!S: t' 888' •WCi'S ,-;s...,,.\^ '^ ^-'i.J'^'i-.. ;''l J HIGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE.MR. R.N. CHANDRAKAR, JJ. APPELLANT/: (Accused) (In Jail) RESPONDENT: Criminal Appeal No.716 of 2005 Bhoj Ram S/o Teej Ram Satnami aged gbout 42 years R/o Village Jampali P.S. & Tahsil Sakti, Distt. Janjgir-Champa (C.G.) Versus Stat%of Chhattisgarh through P.S. Sakti, DisttfJanjgir-Champa (C.G.) {Criminal appeal under Section 374 (2) of the Code of Criminal Procedure} Present: Mr. Govind Ram Miri with Mr. Yogeshwar Sharma, counsel for the appellant. Mrs. Madhunisha Singh, Panel Lawyerforthe State/respondent. JUDGMENT (24th August, 2011) The followina iudament of the Court was delivered bv T.P. Sharma. J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 11-7-2005 passed by the Additional Sessions Judge, Sakti, in Sessions Trial No.37/2005, whereby & whereunder learned Additional Sessions Judge while acquitting co-accused Pukram, after holding the appellant guilty for commission of culpable homicide amounting to murder of Dharamdas Panika, convicted the appellant under Section 302 of the IPC and sentenced him to undergo imprisonment for life & pay fine of Rs.1,000/-, in default of payment of fine to further undergo Rl for thr^e months. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant, and thereby committed illegality. 3. As per case of the prosecution, one year prior to the incident Dharamdas ,.f)anika (since deceased) solemnized marriage with daughter of appellant Bhoj Ram namely Seema @ Sonkunwar, she was pregnant, Bhoj Ram was inclined for termination of her pregnancy, Dharamdas was gp^ 'iaaft,'! ..t" SS quarrelling with his wife Seema and on account of such dispute Seema requested Laxmandas Kotwar (PW-5) & other villagers for reconciling the matter on which they convened village meeting on 29-9-2004 in the night where deceased Dharamdas did not come and thereafter, on second day morning i.e. 30-9-2004 at about 4.15 a.m. appellant Bhoj Ram along with his brother Pukram (acquitted co-accused) killed Dharamdas by axe & stick. Thereafter, at about 430 a.m. appellant Bhoj Ram knocked the door of Laxmandas Kotwar (PW-5) and made extra judicial confession before him that he has killed his enemy, the appellant was angry, then the appellant & Laxmandas Kotwar (PW-5) went to the spot where the dead body of Dharamdas was lying stained with blood on which after informing Dansai (PW-4), Laxmandas Kotwar (PW-5) went to Police Station Sakti and lodged merg vide Ex.P-8 & FIR vide Ex.P-7. The appellant made extra judicial confession before Dansai (PW-4), Laxmandas Kotwar (PW-5) & Ram Prasad Panika (PW-7). The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-1 , prepared inquest over the dead body of the deceased vide Ex.P-2. Spot map was prepared vide Ex.P-6. Sealed clothes of the deceased were seized vide Ex.P-9. Blood stained and plain soil were recovered from the spot vide Ex. P-1 1. Dead body for sent for autopsy to Community Health Centre, Sakti vide Ex. P-13. Dr. K.B. Singh (PW-8) conducted autopsy vide Ex.P-15 and found following injuries: - (1) Incised wound over right side of neck in the size of 2.5 c.m. x 1.5 c.m, x2 cm.. (2) Incised wound over left temporo occipital region in the size of 5 c.m. x 2.5 c.m. x bone deep. (3) Incised wound over right parietal region in the size of 2 c.m. x 1 c.m. x bone deep. (4) Abrasion of 2.5 c.m. x O.^c.m. over nose. (5) Contusion over back of neck in the size of 3 c.m. x 1 c.m. (6) Both lungs and brain were congested. (7) Internal organs were also congested. Mode of death was coma and death was homicidal in nature. During the course of investigation, one motorcycle belonging to deceased Naresh Pandey wasseized videEx.P-11. FIR was lodged vide Ex.P-22. Spot map was prepared vide Ex.P-24. During the course of investigation, co- /- accused Pukram was taken into custody, he made discloser statement of axe and same was recovered vide Ex.P-10. One bamboo stick was seized from the appellant vide Ex.P-12. The appetlant was also sent for medical examination vide Ex.P-18. Dr. K.B. Singh (PW-8) examined the appellant vide Ex.P-19 andfound following injuries: - (1) Abrasion of 0.3 c.m. x 0.2 c.m. over left index finger. (2) Abrasion over right middle finger of small size. (3) Abrasion over left middle finger of 0.3 c.m. x 0.1 c.m. Injuries found on the person of the appellant were simple in nature. Seized articles were sent for chemical examination and presence of blood was confirmed over axe rpcovered from co-accused Pukram and stick seized from the appellant. 4. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court of Additional Chief Judicial Magistrate, Sakti who committed the case to the Court of Sessions Judge, Bilaspur, from where learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the accused, the prosecution has examined as many as fifteen witnesses. The accused persons were examined under Section 313 of the CrPC in which they denied the circumstances appearing against them, pleaded innocence and false implication in the crime in question. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge, while acquitting co-accused Pukram, convicted & sentenced the appellant in the aforesaid manner. 7. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellant vehemently argued that conviction of the appellant is solely based on the evidence of extra judicial confession made by the appellant before Dansai (PW-4), Laxmandas Kotwar (PW-5) & Ram Prasad Panika (PW-7) which does not inspire confidence and is not trustworthy. There was no occasion for the appellant to make such extra judicial confession before the aforesaid witnesses. The appellant is not having any confidence on Laxmandas Kotwar (PW-5) or Dansai (PW-4) or Ram Prasad Panika (PW-7). On the basis of imagination '•a'K> S£v^ ^. Laxmandas (PW-5) has lodged FIR Ex.P-7 and merg Ex.P-8. The extra judicial confession is a weak type of evidence which requires corroboration from independent sources and in absence of any corroboration same is not safe to rely for conviction of the accused. Learned counsel placed teliance in the matter of Arjuna Lal Misra v. The State in which the Supreme Court has held that the retracted uncorroborated confession is not safe to rely. Learned counsel further placed reliance in the matter of Sakharam Shankar Bansode v. State of Maharashtra in which the Supreme Court has held that if evidence of witness before whom confession was made, was unreliable, in absence of other connecting circumstanee, conviction only on the ground of retracted extra judicial confession is not proper. Learned counsel also placed reliance in the matter of Baldev Singh v. State of Punjab in which the Supreme Court has held that extra judicial confession made to police and without establishing the fact that why he disclosed such facts to such person is not safe to rely without further corroboration, as the extra judicial confession is a weak type of evidence. Learned counsel relied upon the matter of Akanman Bora v. State of Assam in which the Gauhati High Court has held that the extra judicial confession is a weak piece of evidence and if it is not disclosing the name of victim, same is infirm and not safe to rely. Learned counsel further relied upon the matter of Kuhrami Mukkai v. State of M.P. in which the High Court of Madhya Pradesh has held that extra judicial confession is a very weak type of evidence unless corroborated strongly by other circumstances, same is not safe to rely, witness proving extra judicial confession contradicting FIR in witness box, confession is not reliable. Learned counsel also relied upon the matter of Shivcharan v. State of MP in which the High Court of Madhya Pradesh has held that extra judicial confession alleged to have been made to a person upon whom accused could not confide is not safe to rely in absence of other circumstances. Learned counsel placed reliance in the matter of Masoo v. State of M.P. in which the High Court of Madhya Pradesh has held that in case the weapon recovered is not connect'ed .with the crime then it is of no 1AIR 1953 SC 411 21994Cri.L.J.2189 3 (2009) 6 SCC 564 4 1988 Cri.L.J. 573 51985MPWN(59) 61982JLJSN(11) -71985MPWN(515) use, likewise the confession in presence of Kotwar whose evidence is full of discrepancy and unnatural, is not safe to rely. Learned counsel further placed reliance in the matter of Jagta v. State of Haryana in which the Supreme Court has held that the evidence about an extra judicial confession is in the naturevof things a weak piece of evidence. Absence of any explanation of injury by accused is hardly a circumstance against him. Learned counsel alsa placed reliance in the matter of Kansa Behera v. State of Orissa in which the Supreme Court has held that the prosecution is required to prove presence of blood over the object and the fact that blood found over the object was of same group of the deceased. Learned counsel relied upon the matter of Keshav v. State of Maharashtra in which the Supreme Court has held that extra judicial confession allegedly made by accused to deceased's wife is unnatural, ordinary she would have disclosed the same to her relatives, but not to her opponents, and lodged FIR immediately thereafter. 9. On the other hand, learned State counsel opposed the appeal and submitted that the extra judicial confession made by the appellant before Dansai (PW-4), Laxmandas Kotwar (PW-5) & Ram Prasad Panika (PW- 7) inspires confidence, it is trustworthy and the trial Court has rightly accepted such evidence free from any infirmity. 10.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalfofthe prosecution. 11.1n the present case, homicidal death of deceased Dharamdas as a result of fatal injuries found over his person has not been substantially disputed on behalf of the appellant, even otherwise, it is established by evidence of Dr. K.B. Singh (PW-8) and autopsy report Ex.P-15 that death of deceased Dharamdas was homicidal in nature. 12.As regards complicity ofthe appellant in the crime in question, conviction of the appellant is substantially teased on evidence of Dansai (PW-4), Laxmandas Kotwar (PW-5) & Ram Prasad Panika (PW-7) before whom the appellant has made extra judicial .confession of guitt. Laxmandas Kotwar (PW-5) & Ram Prasad Panika (PW-7) are brothers and residing in same premises. <. 8 AIR1974 SC 1545 x 91987 Cri.L.J. 1857 10 (2007)13 SCC 284 .- / 13.As per evidence of Laxmandas Mahant (PW-5), Seema - daughter ofthe appellant was married to deceased Dharamdas, just some hours before the incident Seema told this witness that deceased Dharamdas was giving trouble to her on which a Panchayat was convened and this witness went for calling Dharamdas, but Dharamdas did not turn up thereafter, members of the Panchayat left the Panchayat. In the morning time at about 4 a.m. the appellant knocked his door and called him at that time, he was present in his house and on being asked, the appellant made extra judicial confession before him that he has killed his enemy and told to see on which he accompanied the appellant up to the spot where the blood stained injured ctead body of Dharamdas waslying. He /<: directed his brother Ram Prasad Panika (PW-7) to watch the appellant and he went to the police station for lodging report. He todged FIR vide Ex.P-7 and merg vide Ex.P-8. 14.Dansai (PW-4) has corroborated the factum of extra judicial confession. As per his evidence, on the fateful day at about 6 a.m. when he came out from his house he saw the dead body of Dharamdas lying near his house then he went to the house of Kotwar Laxmandas Mahant (PW-5) and informed him about the same whom Kotwar Laxmandas Mahant (PW-5) told that he was informed by the appellant that he has committed murder of Dharamdas. Dansai (PW-4) has further deposed that the appellant also came to his house and made extra judicial confession that he has killed Dharamdas by stick and the appellant also told him that he is going to the police station for surrendering himself. Ram Prasad Panika (PW- 7) - brother of Laxmandas Mahant (PW-5) has also corroborated the evidence of his brother Laxmandas Mahant (PW-5). 15.0efence has cross-examined these witnesses at length. There are contradictions and omissions in fhe evidence of aforesaid witnesses and their previous statements recorded under Section 161 of the CrPC as Exs.D-1, D-2 & D-4. Dansai (PW-4) has admitted in para 2 of his evidence that when he went to Kotwar Laxmandas Mahant (PW-5) for informing the incident, Laxmandas'told him that the appellant has already stated the aforesaid thing to him. These witnesses have denied the suggestion that the appellant has not made extra judicial confession before them. Laxmandas Mahant (PW-5) has specifically admitted in para 16 of his cross-examination thaf till reaching of police to the village, the accused were present in the village, they were interrogated by the : l .ri;l:f'"-..A.^;t ,r .^9, ' \^ 7 police and thereafter, the police took them to the police station. He has further admitted in para 14 of his evidence that the appellant has made extra judicial confession that he has killed his enemy. FIR Ex.P-7 and merg Ex.P-8 reveal that the appellant has made extra judicial confession before Laxmandas Mahant,(PW-5) that he has killed his enemy and then this witness wentalong with the appellant to the place where the dead body of deceased Dharamda^ was lying. Injuries have also been noticed on the body of the appellant, but as held by the Supreme Court in the matter of Jagta (supra), non-explanation of injuries is hardly a circumstance against the appellant. 16.1n the present case, axe has beeh recovered from Pukram (acquifted co- accused) and not from the appellant herein, however, the trial Court has not convicted the appellant on the basis of recovery of stick or axe, but on the basis of the extra judicial confession. In Masoo's case (supra), the appellant had travelled with Kotwar from one door to another door and made extra judicial confession before persons which was not found truthful and it was not natural. In the present case, the appellant himself has knocked the door of the Kotwar and also informed Dhansai (PW-4) whose residence was close to the place of incident. As per evidence of Dhansai (PW-4), he also went to the house of Kotwar. Kotwar is responsible person of the village and normally persons used to inform the Kotwar relating to all incidents especially the criminal incidents and the Kotwar used to help the villagers. In these circumstances, the extra judicial confession made by the appellant before Kotwar was not unnatural and shows that the villagers including the appellant were having confidence upon the Kotwar. The case of Masoo (supra) is distinguishable on facts to that of the present case. 17.As held in the matters of Arjuna Lal IVIisra (supra), Sakharam Shankar Bansode (supra), Baldev Singh (supra), Shivcharan (supra), Kuhrami Mukkai (supra), Akanman Bota (supra), Jagta (supra) and Keshav (supra), extra judicial confession is a weak type of evidence and in case of any inconsistency and infirmity in extra judicial confession or retracted extra judicial confession, the prosecution is required to adduce evidence to corroborate the factum of extra judicial confession and the infirm extra judicial confession/retracted extra judicial confession is not safe to rely without further corroboration from independent source. n ^^.. ' ^••^' :?. ,'s' 18.1n the present case, Laxmandas Mahant (PW-5) has very specifically deposed that he has lodged some portion of FIR on imagination that just few hours prior to the incident there was dispute relating to termination of pregnancy of daughter of the appellant who was married to the deceased and a Panchayat meetin^ was convened where the deceased did not come and, therefore, he has informed the police in Ex.P-7 (from 'B' to 'B') that on the ground of aforesaid enmity the appellant and his brother have caused the murder of Dharamdas. This part of evidence is definitely imagination of the witness, but it was not unfounded inter alia, it was based on previous incident of meeting and true facts. Therefore, on the basis of aforesaid imagina^ive part of FIR, the entire evidence of Laxmandas Mahant (PW-5) catihot be discarded. His evidence is well corroborated by evidence of Dhansai (PW-4) & Ram Prasad Panika (PW-7), promptly lodged FIR Ex.P-7 and merg Ex.P-8. 19.As held in the aforecited cases, the prosecution is required to prove the fact that the appellant has made true extra judicial confession before the witnesses and that the evidence ofwitnesses before whom the appellant has made extra judicial confession inspires confidence and is trustworthy. 20.While dealing the evidentiary value of retracted extra judicial confession without corroboration, four Judge Bench of the Supreme Court in the matter of Pyare Lal Bhargava v. The State of Rajasthan has held that a retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and was voluntarily made. But it has been held that a court shall not base a conviction on such a confession without corroboration. It is a not a rule of law, but is only a rule of prudence. Even uncorroborated retracted extra judicial confession may be sufficient for warrant of conviction. The Supreme Court has observed in para 7 of the judgment as follows: - "(7) The second argument also has no merits. A retracted confessionmay form the legal basis of a conviction if the court is satisfied that it was true and was voluntarily made. But it-has been held that a court shall not base a conviction on such a confession without corroboration. It is.not a rule of law, but is only a rule of prudence. It cannot even be laid down as an inflexible rule of practice or prudence that under no circumstances such a conviction can be made without corroboration, for a court may, in a particular case, be 11AIR1963SC1094 convinced of the absolute truth of a confession and prepared to act upon it without corroboration; but it may be laid down as a general rule practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the court is satisfied that the retracted confession is true and voluntarily made and has been corrobo^ated in material particulars. The High Court having regard to the said principles looked for corroboration and found it in the evidence of Bishan Swaroop, P.W. 7, and the entry in the Dak Book, Ex PA. 4, and accepted the confession in view of the said pieces of corroboration. The finding is one of fact and there is no permissible ground for disturbing it in this appeal." 21.While dealing with same question, the Supreme Court in the matter of K.l. Pavunny v. Assistanti Collector (HQ), Central Excise Collectorate, Cochin has held that retracted extra judicial confession, if on facts found voluntary and trufhful, can form the exclusive basis for conviction. It is however a rule of prudence and practice that the court seeks assurance from other facts and circumstances to corroborate the retracted confession. 22.While dealing with same question, the Supreme Court in the matter of Aloke Nath Dutta and others v. State of West Bengal has held that extra judicial confession need not contain reproduction of exact words, Court has to arrive at the conclusion as to whether the confession was refracted or not. 23.1n the present case, evidence of Dansai (PW-4), Laxmandas Kotwar (PW-5) & Ram Prasad Panika (PW-7) is sufficient to establish the fact that the appellant has made extra judicial confession before them that he has killed his enemy and the enemy was only Dharamdas (since deceased) but none else, when he has shown the dead body of Dharamdas. This evidence is well corroborated by the promptly lodged FIR and merg. \: 24.As regards the question of motive, as per case of the prosecution, the appellant was having motive that husband of Seema @ Sonkunwar i.e. deceased Dharamdas was interested in termination of pregnancy of his wife Seema who is daughter of the appellant herein and on account of such dispute a Panchayat was convened in the previous night. Smt. Seema @ Sonkunwar (PW-15)—daughter of the appellant whom the 12 (1997)38cc 721 -13 (2007) 12 SCC 230 -'Y1 10 prosecution has declared hostile, has deposed the aforesaid facts in paras 4 & 6 of her evidence. Without any reason or dispute convening of Panchayat was not called for which itself is sufficient for establishing the fact that there was some dispute relating to termination of her pregnancy. Smt. Seema @ Sonkunwar (PW-15) has not supported the case of the prosecution. Definitely, her husband has been killed and the appellant is her father. In these circumstances, after death of her husband it was not expected from her to depose against her father. Aforesaid circumstances can be motive for commission of offence which also corroborate the factum of extra judicial confession. 25.1n the present case, extra juctipial confession made by the appellant before Dansai (PW-4), Laxmandas Kotwar (PW-5) & Ram Prasad Panika (PW-7) is well corroborated by the promptly lodged FIR and merg, and also corroborated by the factum of need of convening Panchayat and the fact that the problem was from the deceased and was related to the daughter of the appellant which was motive for the commission offence. Evidence of Dansai (PW-4), Laxmandas Kotwar (PW-5) & Ram Prasad Panika (PW-7) inspires confidence, it is trustworthy and safe to rely. Co- accused Pukram has not made any extra judicial confession and the prosecution has not collected any substantial evidence against him. Therefore, the trial Court has rightly acquitted Pukram of the charges levelled against him. 26. Evidence adduced on behalf of the prosecution relating to extra judicial confession is sufficient for drawing inference that the appellant has caused homicidal death of deceased Dharamdas with intent to cause his death. 27.After appreciating the evidence available on record, learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned. Conviction of the appellant is based on credible and clinching evidence sustainable under the law. On close scrutiny of evidence, we do not find any illegality or infirmity'-in the judgment impugned. 28.The appeal being devoid of merit is, therefore, liable to be dismissed and it is hereby dismissed. Sd/- T.P. Sha-ma Judge Sd/- R.N. Chandrakar Judge