HIGH COURT OF CHHATTISGARH AT BILASPUR‘ Criminal Appéal No.203 of 2003 CORAM: HON'BLE MR.T.P.$HARMA & ‘ HON'BLE MR.R.L.JHANWAR, J'J'. APPELLANT Mukundi Yadaw s/o Amer Singh Vadaw, ‘ f S’ra‘h‘on Palar'i Dis’r. Raipur‘ (6.6.) (In Jail): I aged 3O years village Dhour‘abha‘fu, P.S. ‘ Palar‘i, Dist — Raipur (C.G.) Versus J RESPONDENT Sm’re of Chha‘r’risgar‘h Throughz- Police VCRMINAL APPEAL UNDER SECTION 374 (2) OF THEICODE OF CRIMINAL s - PROCEDURE, 1973) « Present '- Ms. Nirupama Bajpai, counsel for The appellant Mr.V.V.5.MurThy, Depufy Advocafe General for fhe S’raTe/respondenl. ORAL JUDGMENT (Passed on 05*“ January, 2010) The oral juagmen’r of The Courf was delivered _by T.P.$harma, J5- Challenge in this appeal is ’ro The judgmem‘ of convic’rion and order of senTence da‘led 28.10.2002 passed in Sessions Case No. 304 of 2002 by fhe 2"d Additional Sessions Judge, Balodabazar whereby and whereunder offer holding The appellanf guilfy for ‘rhe offence punishable under Sec’rion 302 and for causing homicidal deafh amounting to murder‘ of Sukwari Bai, the learned 2"d Additional Sessions Judge convicted the appellant under Section 302 and sentenced to imprisonment for life and fine of Rs.500/— and in default to undergo additional rigorous imprisonment for 5 months. 2. Judgment d order are challenged on the ground that without any clinching and credible evidence, the Court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality. 2 @ 3. Brief facts of The prosecution is, on fafeful day 28.05.002 at abouf 12.00 p.m. of noon The oppeHom‘ was cuf’ring branches of Tree belonging fo The deceased Sukwari Boi. The deceased Sukwar‘i Bai r'esisfed The oc‘l’ion of The oppelIanT and Tried To Take The branches of The Tree and also abused The I VappeIlanT. ThereafTer TherappeIIanT assaulTed her by axe over her neck. The appeHahT immediaTely wenT To NaroTTamIal P.W.1 and made disdosure sTaTemenT ThaT he has killed Sukwari Bai. Then NaroTTamlal P.W.1 wenT To Police ouTposT Gidhpuri and lodged F.I.R. vide Ex.P.1. Merg inTimaTion was also recorded. InvesTigaTion Officerrproceeded. for The sb‘oT where afTer summoning? The wiTnesses vide Ex.P.2A, inquesT over The dead body was prepared vide Ex.P.-3. Dead body was senT for auTopsy To Primary HealTh CenTer, Palgri vide Ex.P.IOA. AuTopsy was conducTed by Dr. F.R.Nirala P.W.4 vide Ex.P.10 and found The following injuries afTer examinaTion: 1) One incised wound Through and Through over The neck of 2" x %u x 411’ ‘ 3) Skin facial Tissue, exTra jugular vein, Trachea and oesophagus were also cuT. 4) Incised wound of 2" x 1 %” x 2" over jusT below righT ear. 5) Skin facial Tissue and bone of neck were also cuT. Cause of deaTh was shock as a resulT of‘injury over neck region and excessive hemorrhage and deaTh was homicidal in naTure. RegisTered FIR. was recorded vide Ex.P.13. SpoT map was prepared vide Ex.P.4. The appellanT was Taken inTo cusTody vide Ex.P.5. He made disclosure sTaTemenT of axe in Ex.P.5 and The same was recovered aT The insTance of The appellanT vide Ex.P.6. BloodsTained cloThs of The appellanT were seized vide Ex.P.S. Seized larTicles were senT for chemical examinaTion vide Ex.P.14 and vide reporT Ex.P.17 The Forensic Science LaboraTory, Raipur confirmed The blood sTains over axe and cloTh are of The appellanT. STaTemenTs of The wiTnesses under Secajon 161 of The Code of Criminal Procedure (for shorT 'The Code’) were recorded. AfTer compleTion of invesTigaTion, charge sheeT has been filed before The CourT of Judicial MagisTraTe FirsT Class, Baloda Bazar who in Turn 2) One exiT wound of 2" x %" over righT jaw. v \K commiTTed The case To The CourT of Sessions Judge. 2 4. In order To prove The guiH of the appellant/accused, The prosecuTion examined as many as 16 wiTnesses. STaTemenT of The accused/ appel|anT was also recorded under SecTion 313 of The Code where he denied The circumsTances appearing againsT him and innocence and false implicaTion is claimed. 5. Learned Sessions Judge afTer' affording opporTuniTy of hearing To The parTies, convicTed and senTenced The accused/appellanT as aforemenTioned. 6. We have heard Ms. Nirupama'Bajpai, counsel for The appeHanT and Mr.V.V.§.,MurThy, DepuTy AdvocaTe General for The STaTe/respondenT and perused The judgmenT impugned and record of The CourT below. 7. Learfned counsel appearing for The appellanT vehemenTly argued ThaT This case is based on exTra judicial confession made by fhe accused/appellanT " and oTher circumsTances. In case of circumsTanTiaI evidence, The prosecuTion is required To prove all chain of circumsTances linked wiTh each oTher and shall be sufficienT for drawing an inference ThaT The appellanT has only commiTTed The offence. ExTra judicial confession is a weak Type of evidence and is noT safe To rely§and can safely be inferred in absence of any corroboraTive evidence. She furTher argued ThaT exTra judicial confession made by The accused / appellanT in The presenT case is noT sufficienT for drawing any inference and The prosecuTion is noT proved all chain of’circumsTances To exclude The possibiliTy ThaT none oTher Than The accused / appellanT only commiTTed The offence. ‘ 8. On The oTher hand, learned STaTe counsel vehemenTly opposed The argumenTs while submiTTing ThaT in The presenT case exTra judicial confession made by The appellanT before NaroTTamlal P.W.1 and Arjun Das P.W.Z is sufficienT for drawing an inference ThaT The appellanT has commiTTed The murder of Sukwari Bai. 9. In order To appreciaTe The conTenTions of The parTies, we have examined The evidence adduced on behalf of The prosecuTion. SubsTanTially, convicfion is based on exfm—judicid confession and evidence of disclosure of fact 10. In fhe presen’r case; homicidal death of fhe deceased is no‘r substantiaHy dispufed by The appellan’r o’rher'wise also esfablished by ”the evidence of Dr'. F.R.Nir'ala’ P.W.4 and aufopsy reporf Ex.P.10 which revealed ’rhaT fatal injury was found over fhe neck ’rhrough and ’rhrough and all organs of fhe‘neck were found cuT. DeaTh was homicidal in na’rure. ‘ 11. ‘As regards The complici‘ry of ’rhe appellanVaccused in‘crime in question, case ofuthe prosecution is based on extra judicial confession made by the accused before P.W.l Narottamlal and P.W.2 Arjundas. Narottamlal P.W.l who has lodged F.I.R; Ex.P.1 has deposed in his evidence that on the date of incident, he was present in his house. At about 1.00 p.m. the appellant came _. to his house and made disclosure statement that he killed Karibai @ Sukwari Bai by axe. In interrogation, the appellant stated that on the ground of dispute relating to cutting of tree he has killed the deceased. Thereafter, he took the appellant to the house of Kotwar P’W.2 Arjundas and also went to the place of incident where the dead body of the deceased was lying and thereafter lodged F.I.R. Ex.P.1. P.W.Z Arjundas: has deposed in his evidence that the accused made disclosure statement before his wife and went away from his house. After some time he again came with Narottamlal and made a disclosure statement before him that he has killed Karibai @ Sukwari Bai on the ground of dispute relating to the cutting of tree and thereafter they went to the place of incident where dead body of Karibai @ Sukwari Bai was lying and then went to the police station to lodge the report. 12. The defence has cross-examined Narottam P.W.1 in detail but has not been able to elicit anything in his cross—examination to di3credit his testimony on the ground of extra judicial statement. The defence has alSo cross- examined Arjundas P.W.Z but has not been able to extract anything so as to discredit his testimony also. '13. Nar'o‘rTamIal P.W.1 has also depoSed Tha‘r pOIice has recovered bloods’rained axe from The accused in his house. On The basis of sfafemem of accused vide Ex.P.5, The axe was recovered and sem‘ To chemical examinaTion where The Forensic Expert examined The axe and confirmed The presence of blood as ThaT of The appelianT vide reporT Ex.P.17. 14. SubsTanTiaHy The convicTion is based on exTra judicial confession made by The‘ accused/appellant The exTra judicial confession is a weak Type of evidence and once iT is proved To be True Then The same is safe To rely. 15. 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 Punjabi 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. 16. While dealing wiTh The same quesTion, The Apex CourT in The maTTer of Mohd. Azad @ $amin v. sTaTe of WesT Bengalz 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 \Tr'ue 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 confession, like any oTher evidence, depends upon The veraciTy of The wiTness To whom iT has been made. The value of The evidence a‘s 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 12009 AIR scw 3730’ .\\ 22009 AIR scw 752 i \ 25 N respec‘r of whom nofhing is broughT ou’r which hay fend To indicaTe fhaf he may have a mo'rive of a’r’rr‘ibufing an unfrufhful sfafemenf ’ro The accused, The words spoken To by The wiTness are dear, unambiguous and unmisTakably convey ThaT The accused is The perpeTraTor of The crime and noThing is omiTTed by The wiTness which may miIiTaTe againsT iT. AfTer subjecTing The evidence“ of The wiTness To a rigorous TesT on The TouchsTone of credibiIiTy, The exTra-judicial confession can be accepTed and can be The basis of convicTion if iT passes The TesT of credibiliTy" 17. In The presenT case, The evidence of NaroTTamlal P.W.1Iand Arjundas P.W.2 before whom The appelianT has made diSCIOSure sTaTemenT inspires confidence? TrusTworThy and safe To rely, The evidence of exTra judicial confession is well corroboraTed by The disclosure sTafemenT of axe recovered from The appellanT and sTains of blood were found over axe. The Iearned AddiTional Sessions Judge, relying on The prosecuTion version, has convicTed The appellanT as aforemenTioned. Sukwari Bai, aT The Time of incidenT, was noT holding any weapon and has Tried To resisT The cuTTing of Tree and has also abused The accused. The accused assaulTed her by axe on her neck and caused dangerous injury resulTing inTo insTanTaneous deaTh of Sukwari Bai, which shows The inTenTion of The appellanT for causing homicidal deaTh amounTing To murder of Sukwari Bai. v 18. On close scruTiny of The evidence, we are of The view ThaT The learned AddiTional Sessions Judge has righTly convicTed and senTenced The'appellanT as aforemenTioned in paragraph 1 (supra). We do noT find any illegaliTy or infirmiTy in The judgmenT impugned which would warranT inTerference by This CourT. </ 19. ConsequenTly, The appeal is liable To be and is dismissed. Sd/— i \ ,—’—/‘ s11?- yP. Shanna ' ‘*" R.L. Jhanwar Judge ' /£1L(}/ge/ V7 _ 5,