?s:r\ '',--< "ll r • ^.t'\i' ''f>^i .,*^ ^ ft-F'^ •ifBf, W-GHCCyjKV OF CHHATTESSARH AT BILASPUR Coram: Hon'ble Mr.T.P.Sharma & Hon'ble Mr.R.L.Jhanwar, JJ. Criminal Appeal No.608 of 2008 Saradhuram Versus State of Chhattisgarh JU&6MENT FOR CONSIDERATION ,sd/-"' r<SAar^ Ige Hon'ble Mr.R.L.Jhanwar Post for Judgment Sd/- R.L. Jhanwar Judge •f ,4/12/2009 Sd4~*3 (L- HI6H COURT OF CHHATTESG/IRH AT BILASPUR Criminal Appeal No.608 of 2008 CORAM: HON'BLE MR.T.P.SHARMA <& HON'BLE MR.R.L.JHANWAR, JJ. APPELLANT (InJail) " RESPONDENT Saradhuram S/o Sarju (Sond, Aged about 30 years, Occupation-Farmer, R/o- Village-Arrathana, Aamabeda Dist- Kanker (C.6.) Versus State of Chhattisgarh Through P.5.- Aamabeda, Dist-Kanker. (CRMINAL APPEAL UNDER SECTCON 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973) Present;- Mr. H.S.Ahluwalia, counsel for the appellant. Mr.U.K.S.Chandel, Panel lawyer for the State/respondent. JU&6MENT (Passed on 4th December, 2009) The judgment of the Court was delivered by T.P.Sharma, J.:- 1. Challenge in this appeal is to the judgment of conviction <& order of sentence dated 15.2.2002 passed by the Second Additional Sessions Judge (F.T.C.), Kanker, in Sessions Trial No.198/2000 whereby & whereunder learned Second Additional Sessions Judge after holding the appellant guilty for the offence of murder punishable under section 302 of the Indian Penal Code sentenced him to undergo imprisonment for life. 2. Judgment & order are challenged on the ground that w/ithout there being credible evidence to connect the appellant in the crime in question, the Court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality. .^yfcy^fe; 3. Case of the prosecution, in brief, is that on the fateful day of 4/5.3.2000, deceased 6agru was sleeping in his courtyard (Badi) beside fire. His wife Sukho Bai (PW-1) was also sleeping another side of fire. At late night, the appellant came with axe and assaulted the deceased Sagru by axe over his temporal region on the ground of previous enmit/ of "Baiga Jobl'. ffagru instantaneously died on the spot. Wife of the deceased Sukho Bai lodged dehati nalishi vide Ex.P/11. On the basis of dehati nalishi, registered F.I.R. was written vide Ex.P/llA. After summoning the witnesses vide Ex.P/1, inquest over the dead body of deceased 6agru was prepared vide Ex.P/3. Dead body of the deceased was sent for autopsy to Primary Health Centre, Aamabeda. Autopsy was conducted by Or.Sandeep Dwivedi (PW-8) vide Ex.P/6 and found following injuries:- i) One stab wound over right chick of 1" x I" x 1" ii) One stab wound over below of left ear of I" x 3" x ^ " iii) Fracture of 2nd and 3 cervical bone. 4. Cause of death was shock as a result of internal heamorrhage and death was homicidal in nature. Sealed hairs of the deceased were recovered vide Ex.P/2. One bloodstained shirt, one bloodstained shawt and one bloodstained blanket were recovered from the spot vide Ex.P/5. The appellant was taken into custody on 6.3.2000. He mude disclosure statement of axe vide Ex.P/4 and the same was recovered at the instance of the appellant from the place where he used to keep paddy vide Ex.P/4A. Seized articles were sent for chemical analysis to FSL where presence of human blood over axe was confirmed. 5. Statements of the witnesses were recorded under Section 161 of the Code of Cn'minal Procedure, 1973 (hereinafter referred to as 'the Code') and after completion of investigation, charge sheet was filed in the Court of Chief Judicial Magistrate, Kanker, uvho in turn committed the case to the Court of the Sessions Judge, Bastar at Jagdalpur from where Second Additional Sessions Judge (F.T.C.), Kanker received the same on transfer for trial. 6. In order to prove the guilt of the appellant/accused, the prosecution examined as many as 11 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code where he denied the circumstances appearing against him and innocence and false implication is claimed. 7. Learned Second Additionat Sessions Judge after affording opportunity of hearing to the parties, convicted and sentenced the accused/appeltant as aforementioned. 8. We have heard Mr.H.S.Ahluwalia, counset for the appellant and AAr.U.K.S.Chandel, Panel lawyer for the State/respondent and perused the judgment impugned as also record of the Court below. 9. Leamed counsel appearing for the appellant vehemently argued that the present case rests on the evidence of eyewitness, extra-judicial confession and disclosure statement made by the accused. Statement of only solitary witness/relative of the deceased Sukho Bai (PW-1) is not worth of reliance. Extra-judicial confession is a weak type of evidence and in the present case, two persons have made contradictory statements relating to extra-judicial confession, therefore, extra-judicial confession is not safe to rely and in absence of any substantial evidence, recovery of axe of no use. 10. Learned counsel placed reliance in the matter of Dhaniram 6otani Kenwqt v. State of Madhya Pradesh in which this Court has held that confessional statement made to police is not admissible in evidence and is hit by Section 25 of the Evidence Act. Learned counsel further placed reliance in the matter of Niranjan Prasad and others v. State of Madhya Pradesh2 in which the Apex Court has held that conflict between ocular evidence and medical evidence is fatal to the prosecution. Learned counsel also placed reliance in the matter of Mahadeo Kundalik Vaidya '2009 Cri.L.J.1799 ^996 Cri.L.J.1987 •^ ~'-®lsl ^ ^ J ^^' and others v. State of Maharashtra in which the 1-ligh Court of Bombay has held that conflict between ocular evidence and medical evidence is fatal to the prosecution. Learned counsel further placed reliance in the matter of Moti etc. State of U.P. in which the Apex Court has held that time of death being a material factor to verify the presence of the eye-witnesses it was obligatory for the prosecution to have clarified the discrepancy between the medical evidence and the oral evidence. 11. On the other hand, learned State counsel supported the judgment impugned and argued that the prosecution has proved its case beyond all shadow of doubt. The evidence of eyeuvitness Sukho Bai (PW-1) inspires confidence and trustworthy. Her presence at the time of incident was natural. She has categorically deposed that the appellant is the person who has caused fatal injury to the deceased. Learned counsel further argued that the appellant has made disclosure statement before Dansai (PW-2) and Mani Ram (PW-3). Ramsahai Darru (PW-7) has also categorically deposed in his evidence that bloodstained axe has been recovered at the instance of the appellant from the place where he used to keep. 12.Learned counsel placed reliance in the matter of State of Rajasthan v. Teja Ram and others in which the Apex Court has held thdt presence of blood over the weapon is adverse circumstances. Failure of the serologist to detect the origin of the blood due to disintegration of the serum in the meanwhile does not mean that the blood stuck on the axe would not have been human blood at all. Learned counsel further placed reliance in the matter of State of Madhya Pradesh v. bharkole alias &ovind Sin9h and others in which the Apex Court has held that conflict between ocular and medical evidence not to be given primacy over ocular evidence. 32001 Cri.L.J.4306 42003 (2) Crimes 62 (SC) 5(1999) 3 SCC 507 62005 Cri.L.J.108 13. In order to appreciate the contentions of the parties, we have examined the evidence available on record. In the present case, homicidal death of the deceased fiagru as a result of fatal injury is not substantially disputed by the appellant, otherwise it is also established by the evidence of Dr.Sandeep Dwivedi (PW-8) who has deposed that on 6.3.2000 at about 4.30 he has examined dead body of deceased 6agru and found the injuries (Ex.P/6) as mentioned in para 3 of the said judgment. He hcs also deposed that injury was sufficient for causing death. This fact is supported by dehati nalishi (Ex.P/11) and F.I.R. (Ex.P/llA). These evidence are sufficient to establish the fact that Sagru died as a result of ante mortem fatal injury sufficient for causing death. 14.In order to establish the complicity of the accused/appellant in the crime in question, the case of the prosecution rests on the following sets of evidence; i) birect evidence of Sukho Bai (PW-1) ii) Extra-judicial confession made by the appellant iii) t5isclosure of the fact relating to axe and presence of blood over axe. Sukho Bai (PW-1) is close relative and wife of the deceased. She has deposed that on the date of incident she was sleeping beside fire. Out <^f her house, her husband deceased (Sagru was also sleeping in another side of fire. At late night the appellant whom she knows came with axe and assaulted her husband. She informed the incident to younger brother of the deceased and lodged the report. befence has cross-examined this witness. In her detail cross-examination, she has admitted that herself and the deceased were sleeping beside burning fire and her husband was Baiga but at that night nobody came for treatment. She has denied the suggestion that she do not know that who has assaulted her husband and she has also denied the suggestion that the appellant has not assaulted her husband and other person has assaulted her husband. She has specifically deposed in para 3 of her cross-examination that at the time of incident ,^S?"B^ ;it^tf she was sleeping and she has only seen the appellant while he was running from the spot. In her evidence, she has specifically deposed that she was sleeping near her husband near fire, the appellant came and assaulted her husband by axe and accused is the person who has assaulted the deceased and except the appellant, nobody has assaulted the deceased at the time of incident. 15. Dr.Sandeep Dwivedi (PW-8) has deposed that one stab wound was found over right temporal region, left side of the face and fracture of cervical bone. All are adjoining injury and stab (pierce) wound can be caused by the axe. 16. As held by the Apex Court and the High Court of Bombay in the matters of Niranjan (supra) and Mahodeo (supra), conflict between oculdr evidence and medical evidence is fatal to the prosecution. In the present case, ocular evidence is well corroborated by the medical evidence. Definitely, Sukho Bai (PW-1) is wife and closed relative of the deceased. Her presence at the time of incident at night was natural. Only on the ground that she is relative, her evidence cannot be discarded. 17. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Close relation would be the last to screen the real culprit and falsely implicate an innocent person. As held by the Apex Court in the matter of Mohabbat and Ors.v. State of M.P. , reldtionship is not ground to affect credibility of witness, foundation has to be laid if plea of false implication is raised. Para 7 of the said judgment reads as under, "7. Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. AAere statement that being relatives 72009 AIR SCW 1486 r, sl| 'U014.DUIUIDX3-SSOJ3 sii| uj 'qof (s[ns5(A5"u^^) ouoj.-npDj' j.o punoj6 ai|4. uo axD Xq pssDassp SL|+ p34.|nDSSD soq 3L| +01)4. 4.U3U134.D4.S 3jnso|3sip SpDLU 3H 'p8||D3 SD(W 3L| /<|4.u3nbgsqns 4.nq 'Suipuossqo SDM pasnsoD 31)4. SIU14. +DLJ4. 4.D 'p3U3AU03 SDfVI V}Ao\y>UD(j -UOlSsJ |DJodlU34. Sllf J3AO 4.U3S3jd SDM Ajnfui •nj6og p3SD33sp 31)4. 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MDS 3l< 31UI+ BUIUJOIU 3l|4. +D 4.01)4. 33U3p!A3 SILI Uj pSSOdsp SDl| (g-Md) IOSUOQ 'p3UJ33U03 51 4.UD||3ddD Sl|4. /<q 3pDtu uojsssj.uos iDisipnf-DJ+xs spJoBsj sy •9t ,,"3|q!p3j3 puo +us6o3 si +1 j3i|4.3i|M 4.no puij. 04. 33U3plA3 3Z/|DUD pUD IjSDOjddD |nj.3JD3 D +dopD 04. SDl) 4.jno3 3i|4. 'S3SD3 i^sns uj: •3pDtU Sl UO]j.D3!|dlUI 3S|Dj. p D3|d j.1 PJD] 3q 0+ SDL| uoi+opunoj •UOSJsd J.U330UUI UD +SUID6D SU014.D63||D 3>|DUI pUD 4.1jd|n3 |Dn4.30 |D33U03 4.0U p|nOM UO)4.D|3J D 4.044. 4.0U UDIJ4. U34.J.O 3JOIU S! 4.1 'SSSU+IM D ^o A4.!|jqip3j3 pa^^o 04. JO+OD^ D 4.ou si d!i|Suoi4.D|3y •uoisjaA uoi+noasojd 3L|+ Buuaq+jnj. joj. S3SS3U4.jM 3i<+ j,o ssaups+s3J3j.U! SuipjoGaj UOI+US+UOS SL|+ l|4.1M |D3p OS|D |[Dl|S 3/V\ '3|q!pSJ3 pUD j.U36o3 3SIMJ3l|4.0 Sl qoiiim aouspiAS 31(4. pjDosip 04. punoj6 D aq +ouuo3 pasnaso 3^4. 34.D31|dlU! A|SS|D^ 0+ X|3>|1| 3JD Asi|4. pasoaaap 31)4. ^.o ^ y^s«i. " f {. ..y /• has admitted that afterwards police came to his village. Panchayat was convened first time before coming of the police, then police came to their village. Again they asked to the accused, at that time the accused was under fear. The evidence of Dansai (PW-2) clearly shows that the accused was asked on two occasions, first time before coming of the police to the village and second time before the police. 21. Admittedly, second part of the evidence i.e. extra-judicial confession before the police is not admissible in evidence and is hit by section 25 of the Evidence Act, but first part of his evidence relating to extra-judicial confession made by the appellant is admissible in evidence. Mani Ram (PW-3) has specifically deposed that when he saw the dead body at that time they have convened meeting where the appellant has admitted his guilt in extra-judicial confession, then they went to the police station and again the appellant was interrogated. 22.While dealing with the evidentiary value of extra-judicial 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-judicial confession is generally of weak type of evidence. No conviction ordinarily can be based solely thereupon unless same is corroborated in material particulars. 23.While dealing with the same question, the Apex Court in the matter of Mohd. Azad @ Samin v. State of West Bengal9 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 will nave to prove like in any other evidence. Para 22 of the said judgment reads as under:- 22. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to conl-ession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the 82009 AIR SCW 3730 92009AIR SCW 752 ^ / evidence as to the confession 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-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon the conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, 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 words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the 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 test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of conviction if it passes the test of credibility" 24.The prosecution has adduced another sets of evidence relating to disclosure statement of axe (weapon of the offence). Ramsahai Darru (PW-7), Panchayat Secretary, has deposed in his evidence that the accused was interrogated by the police where he made disclosure statement of axe beside his Dholki (place where he used to keep paddy) vide Ex.P/4. The appellant took out bloodstained axe from inside his house and same was seized vide Ex.P/4A. In his cross-examination, he has admitted that axe is common article and even found in his house. He has admitted that he took out axe from his house. These evidence are sufficient that at the instance of the appellant, bloodstained axe was recovered from him. He took out axe from his house.It shows that the appellant is the person who knew that axe was kept inside the place where he used to keep the paddy. He has not offered any explanation to show that how he knows the fact that axe was kept there or who has kept axe inside his house. Axe was examined by FSL and presence of human blood with axe was confirmed vide Ex.P/10. 10 25.In the matter of State of Rajasthan (supra), the Apex Court has held that failure of the serologist to detect the origin of the blood due to disintegration of the serum in the meanwhile does not mean that the blood stuck on the axe would not have been human blood at all. Para 25 of the said judgment reads as under:- "25. Failure of the serologist to detect the origin of the blood due to disintegration of the serum in the meanwhile does not mean that the blood stuck on the axe would not have been human blood at all. Sometimes it happens, either because the stain is too insufficient or due to heamatological changes and plasmatic coagulation that a serologist might fail to detect the origin of the blood. Will it then mean that the blood would be of some other origin? Such guesswork that blood on the other axe would have been animal blood is unrealistic and far-fetched in the broad spectrum of this case. The effort of the criminal court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension which ajudicially conscientious mind entertains with some objectivity, no benefit can be claimed by the accused." 26. In the present case, statement of solitary relative witness Sukho Bai (PW-1) inspires confidence and trustworthy and safe to rely and her evidence is supported by extra-judicial confession made by the appellant before Mani Ram (PW-3), though the evidence of extra-judicial confession is a weak type of evidence, but when it satisfies the test of credibility, then this evidence alone is sufficient for drawing positive inference. Bloodstained axe was recovered at the instance of the appellant which is also corroborative piece of evidence. Three sets of evidence adduced on behalf of the prosecution are sufficient for drawing inference that the accused is the person who has caused fatal injury to the deceased and caused homicidal death of the deceased. 27.As regards the question of motive is concerned, in case of direct evidence, question of motive losses its importance. Even otherwise, motive is aid in criminality and it can be inferred from the kind of weapon used, part of body effected and nature of injury and other circumstances. ';1 ^, 1 'rll'!""°% s ;"1:!- -,^".^^' 11 28.In the present case, the appellant went to the place of the deceased whece he was sleeping at night with axe. There was no occasion for the appellant to go to the spot at the time of incident for causing such fatal injury resulting into instantaneously death of the deceased and same is sufficient for drawing that the appellant has caused homicidal death amount to murder. 29.After appreciating the evidence available on record, learned Second Additional Sessions Judge (F.T.C.), Kanker has convicted and sentenced the appellant as aforementioned. On ciose scrutiny of the evidence available on record, conviction & sentence imposed upon the appellant is based on substantially credible and clinching evidence and same is sustainable under the law. 30.For the foregoing reasons, we do not find any substance in this appeal. The appea! is liable to the dismissed and is hereby dismissed. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge