HIGH GOURTOR CHHATTISGARH : BILASPUR DIVISION BENCH: HON'BLESHRI T.P.SHARMA AND HON'BLE SHRI R.L.JHANWAR. JJ. Griminal ADReal No. 763 / 2003 APPELLANT (in iail cUstodv) RESPQNDENT Kunwer Singh son of Alkhu Ram, aged about 22 years, resident of village Biretara, P.S. - Gunderdehi, Distt. - Durg (Chhattisgarh) VERSUS State of Chhattisgarh through: |P.S. Gunderdehi, Distt.—Durg(Chhatfisgarh) CRIMINAL APREAL UNDER SECTION 374 (2) OR CR.P.C. Appearance: Shri V.P.Gupta, counsel for the appellant. Shri Arun Sao, G.A. for theState. • m ORALJUDQMENT (Passeddn 13.09.2010) Per T.P.Sharma. J. Challenge in this appeal is to thejudgment of conviction and order ofsentence dated 05.04:2002 passed in Sessions Case No.307/2002 by the learned Sesslons Judge, Durg, whereby and wheFeunderafterhGilding the appellant guilty fpr commission of culpable homicide amountilng to murder of his wife Saroj Bai, the learned Sessions Judge Convictgd the appellant under SeGtion 302 of the I.P.C. and sentenced him ;to life imprisonment with fine of Rs.500/- and ih default to undergo R.I|. !for 3 months. ; 2. The conviotion of the appellant is Impugned on the grouiiicl that without iota of eviderice for commission of culpable homicide amounting to murder of his wife, the Court below has convifcted and sentencgd the appellant as aforesaid and therebycommjtted illegality. ^y !.!lli.Ail- z -^ 3. Brieffacts ofthe prosecution arethaton fateful i.e. 27.07.2002 the appellant was sitting with hls wife in his house where he caused fatal injury pver the neck of his wife bysickle and caused her death. After hearing the sounds, relatives and other persons gathered there. They called Kotwar Jrithudas P.W.1. The appellant made extra judioial confession befor^ Jethudas P.W.1 and Qendlal P.W.3. P.W.1 Jethudas went to police stgtion and lodged incident of report (Dehati Nalishi) Ex.P.1 and also merg intimation vide Ex.P.2. Final merg intimation was recorded vide Ex.P.11 and F.I.R.vide Ex.P.12 by P.W.7 Roshanlal. After summoning the witnesses vide Ex.P.3, inquest over the dead body was prepared vide Ex.P.4. Mapwas prepared vide Ex.P.5. Dead body was sentfor autopsyto Assistant Surgeon, GovernmentHospital, Gunderdehi vide EX.P.14A. P.W.8 Dr.P.Misbra conducted autopsy vide Ex.P.14 and fQund the following [njuries: 1. Incised wound over breast of 3 x 1 x 1 cm. was found. 2. 3/4thofneckwasfouhdGut. Neck was hanging. 3. Traohea and all big vessels inoluding muscle of neck are found cut. Mode ofdeath was shook as a result offatal injury. The appellant was taken ihto custody. He made disclosure statement of siokle vide Ex.P.6,thesame was recovered at the jnstance of the appellant vide Ex.P.8. Bloodstained and plain soils wece recovered from the spot vide Ex.P.7. Sealed clothsofthedeceasedvtdeEx.P.10. Again spotmapwas prepared vide Ex.P.16 by Patwari. Seized articlesweresentforchemical exarnination to E.S.L. vide Ex.P.19 and presence of blood was confirmed overthe cloths and weapon pfoffence being used by the appellant vide Ex.P.21.' . ! ; ! : ' : • ~ 4. Statementsof wltnesses were recorded under Section 161 of the Cr.P.C. (for short 'the Code'). After cotnpletion of investigation, charge sheet was filed before the J.M.F.C.who in turn committed the case to the learnedSessions Judge, Dyrg. 5. In order to prove the guilt of the appellant, the prosecution examined as many as 10 witriesses. The appellant / accused wasi also examined under Seetion 313 of the Code where he deniedi e ..• >-s-r" —•<•£•• -*.8W 'S'Mu'-"" .^ '«»SSI" - 3 ^ ciroumstances appearing against him ahd pleaded his innocence and false implication. The appellant has also adduced defence witness i.e. his mQther Smt. Khorbahrin D.W.1 who has deposed that the appellant and his wifewere steeping in one roOm and on second day morning wife ofthe appellantwas found dead, as a result of injuries. 6. After affording an opportunity Qf hearing to (he parties and after appreciation ofevidence available on record,the learned Sessions Judge convjcted and sentenced the as aforementioned. 7, Shri V.P.Gupta, learned counsel for the appellant and Shri Arun Sao; learned GovernmentAdvocate are heard at length.We have perused the record of CoUrtbelow and impugnedjudgment. 8. Learned counsel for the appellant vehemently argued that fhe appellant has not commltted anyoffence and prosecution has also utterly failed tQ prove the case against the accused/appellant beyond its reasonable doubt; therefore, the accused/appellant is entitled to acquittal. 9. On the other hand, learned counsel for the State opposed the appeal and submitted that in the present case, present appellant had made exfra juclicial confession before the Kotwar P.W.1 Jethudas that his wife died as a result of fatal injury in the room of appellant and both the app611antand hjs wife Were sleeping in pne room. The appellant was under obligation to offer explanation under Sectidn 106 of the Evidenee Acton the ground that Qffence has besn oommitted in secrecy but he has nat offer any explanatioh which is suffieient to draw adverse alfegation against the appellant (hat appellant is the only person who eommitted offence. 10, In order to appreciate the arguments advanced on behalf of the parties, we have minutely examined the evidence adduced by the prosecution. In the present case, homicidal death as a result of fatal injury on the neck of the deceased has not been substantially disputed on behaff of the appellant, on the ofher hand, it was also established by the evidenceof Dr.P.Mishra P.W,8 and autopsy report Ex.P.14 which i 1 k-Vt.i.i.sl. lffBKN»-..'Bni»Kii'imi«)l|)!lii']|]t.»>riS8fink)ISiilt.»;-.»»u-W.-S^W ,....( .^^s^-.a.a.i is'^-a^ '•^•'^^. •A-^f-^'L ^' '' . L •• '^ '<^^%?^./ ' "^' -;a*s' I ..^'^•..•','^' ^' illk ,..rv6'sS- ..1§:11]' ^ revealed that 3/4* part of neck was fourid cut and was hanging and even internal organs were found cuf and death was homiGidal in nature. 11. As regards the OQmplicity of the appellant in orime in question, conviction is based on extra judicial confession made by the appellant before P.W.1 Kotwar Jethudas andthe circumstances that the appellant and his wlfe were fbuhd in one room in the night andon the very next day at mQrning i.e. 3.00 a.m. wife of the appellant was found dead andno explanation has beenoffered by the appellant. 12. So far as extra judicial oonfession made by the gppellant before P.W.1 Jethudas is concerned, P.W1 Jethudas has categorically deposed that when he wentto-the rOQm of the appellant and his wife, he saw the dead body of wife of the appellant and blood was coming but and upon being asked as to why did he eommit the murder of hiswife, then the appellant replied that on account QfillicitTelation ofhiswifewithbrother-in- law. In paragraph 5 of his evidenGe, he has sJenied the suggestion that appellant has not made any extrajudicial oonfession relating to murder of his wife. This witness is Kotwar of the vlllage and has also lodged the incident pf report. Iri paragraph 2 of this witness, this witness has depQsed as under: "^ Sn^ ^ ^BT Sff f^, ^*]^ 3Wft t|?fl' ^t ^iff 'qra ^TdT, cJt ^Ef^ iRrrar l^, 'W ^cift ^ uTluiiufl ^ war:^ft ^ t i" l ! In paragraph i5 of tiis crbss-examinatiQn, he has further deposed|,;which ^Teacfe'asunaer:^.1'"';'.;'-11'.-''""1': • 1 ^ • ^••. "?i? *6-ii ''TWT 11^ srRtiift ^ T^groft Tidt ^t ??in' ^^ ^t ^RT ^f '3RSPS Sffl" . ! If both thelines are read together, then the only inference would be possfble that upon being asked about her death, the appellant had confessed beforehim that he hascommitted the murderof his wife. Extra judicial confession, if praved, is suffipient for drawing the definite inference. While dealing with the qyestion of extra judicial confessjQn, the Apex Court inthe matterofBa/dev S/ngh v. StateofPvnjab, 2009 AIR SCW 3730 has held that extra judicial:confessioh is general ofweak type of evidehce. Np conviBtiQn ordinarily can bel based solely theFeupon ynless same is corroborated in material particulars. While dealingwith the 'l' TT! s same question, the Apex Court in the matter of Mohd. Azad @ Saminv. State of West Bengal, 2009 AIRSCW 762 has held that ifextra judicial confession madevoluntarily and truth in a fit state ofmind thenit can be relted upQnand confession Will haveto prove like ih any other evidence. Para22 of the said judgment reads as under:- "22. An extra-judicial confessipn, ifvoluntary ancj true and made and made in a fit state of mind, can be relied upon by the court. The confession will have to be proyed like any other fact. The value of the evidence as tocohfession, liKe any other evidenee, depends upon the veracity ofthe witness to whom it has been made. The value ofthe evidenee astp the ebnfession depehds on the reliabilify' ofthe witness who giveS theevidence. It is notopen to ariycoyrtto start wifh a presumption that extra-judjcial Gonfession is a weak type ofevidence. It would depend on the natureof the circumstances, the time when the confession was made and the credibility of the witnesses whospeak tosuch a confession. Such a confession can be relied upon the oonViGtion can be founded therepn if the evidence about the confession oomes from the mouth of witnesses :who appear to be unbiased, not even remotely inimical to the aecused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the wordsspoken to by the witness are clear, unambiguaus and unmistakably convey that the accused is the perpetratorof the crime and nothing is pmitted by ttie withess whieh meiymilifate against jt. After subjecting the evklence Qf the witness to a ('igorous test on the touchstone of credibility, the extra- judicial opnfession can be accepted and ean be the basis of copviction if it passes the test of credibility". 13., In the present case, the case of ttie prosecution and the evidence ofdefence witness Smt. Khorbaharinadduced on behalfoftheappellantis that on the date of incident at night the appellant and his wife were sleeping in one room together and on second day mpmfng wife of^the appellant was found dead in his room. This apart, as per medical evidence, fatal injury was found her neck. In these circumstances, it can safely be inferred that the offence has bee eommitted in secrecy and|the appellant was under obligation to offer explanation lin terms of Section 106 of the Evidence Act, but the present appellant has not offered any such explanatlbn as to how liis wife died. While dealing with the question of offence committed in secrecy, in the mattsr of Trimukh MarotiKiran v. S(ateofA41a/»aras/»fra,(2006)10 SCC 681 and Dhananjoy Chattefjee affas Dhana v. StateofW.B., (1994) 2 SCC 220 the Apex Court has held >.<: .-^' that in case of offence committed in secrecy, the person who was present inSuchplaces is ynderobligation to offer explanation. 14. Thus, the appellant, jn the present case, has made extra judicial confession before P.W.1 Jethudas and that too has not offered any explanatlon as required under Section 106 of the Evidence Act as to how death of his wife took place. If these circumstances and evidence considered together, the same would be sufficient for drawing a definife conclusion that the appellant is author ofthe crime by eausing fatalinjury to hiswife, resultedintoherdeath. 15. After appreciation of evidence available on record, learned Sessions Judge tias convieted and sentenced the appellant as aforesaid mentioned. 16. On close .sGrutiny of the evidence, we do not find any illegality or infirmity in the impugned judgment requiring interference. 17. Consequently, the appeal has no substance; the sgme is liahle to be and is herebydismissed. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge ;','^, !' i