HIGH CWRT OF GMATTI$6A§H BILASPUR Division Bench: Hon'bl: 5hri Jusiic: LC. Bhadao a Hon’blc Shri Jusfioe 5unil Kmar ship, J’J’. 'Crimind Aw! No. 87 0f 2000 Budhéam Q Munudhiya V¢rsus 11w State of Chhaffisgwh Judgmenf for cbnsiderafion Sd/- SUN'IL KUMAR SINHA Judge 7/ Harm: 5m Justice L.c. shad”, J v ‘ L.C.BHADOO Judge \ b j ”7% 5di- ‘ 08.2007 P95? for Judgmenf: 24%.2007 j ii Sd" V :y' Sunil Kumar Sinha Judge W HIeH coum' OF CHHAmseARI-I BILAsPUR WZ‘W —— .— —_— Abpurancch Shri Rqiesh Tlwari, counsel for ”the oppeiinm. 5hri wish Gupta, Dy Govt. Advoca'fe for the 5fo1'c. (DIVISION BENa-D HON'BLE 5HRI LC. BHADOO & HON'BLE 5Hkl SUNIL KUMAR $INHA, J'J. JLLDGMENI ‘ (02.08.2007) Following judgment of the Cour? wus‘delivered by Sunll Mar Siam, L (1) The challange is made 'ro the judgment of wmldion and order of san‘lonce dded 30’” November, 2000 possod by flie Special Judge under the Scheduled Castes md Scheduled Tribes (Prevention of Atrocities) Act, 1989, Bilospur in Special Criminal Case No. 28/2000, whereby, the appellant was ' convicted under Section 302 of I.P.C. aid sentenced to undergo imprisonment for life. (2) The appellant was charged for the commission of offence pmiMie under section 302 Lac. (ind semen 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of 3:3, f v ll APPEJANT Budhm @ Mumdhiya Slq Sukhimm P.5. Balao agad 40 yews, R/o. Village sonpuri, Nagur, Disfricf— Korbav(c.6.) ‘ ( Versus RESPONDWI’ The Stofe of Chhaffisgarh, through Police Karba (5.6.) f Sfafion- Babe Nagar, Districf- (3) 2 \3 Cn'minal No. 87 of 2000 Afr-ocifies) Ac‘r, 1989 (hereimffar referred fo as the Specie! Ad). The allegations are The? on 25.4.2000 of w 12 in The mid-night he committed murder of Kwan Singh. The case of the prosecution is that on account of certain previous animosity, the deceased had gone to the house of the appeiimt and had ‘assauited him on his back, on which, the appelimt chased him and when he found him in the 5am in front of house of Prem Sai, he attacked him with Taiyiaand cwsed multiple injuries, on which, the deceased died instantmeously. After the occurrence, immediately, the appellmt firstly went to the house of Sarpanch nomely— Kawal Singh Rathia (P.W.-3), where he made extra judicial confession and thereafter, he '- made such confession before many witnesses and ultimately, the report «m lodged. During the course of investigation, notices were given to the witness for inquest under Ex.-P/1, The inquest on the body of the deceased was‘ prepa'ed under Ex.-P/2. 5ite plan was prepared under Ex.-P/3. Plain soil, blood stained soil, blood stained Axe, blood stained Danda, a bow and an arrow were seized from the place of occurrence near the body of the deceased under EXP/4. The cloths of the deceased as also the appellant were also seized. Dehati Nalishi was recorded under Ex.-P/15, based on which, the F.I.R. was recorded under Ex.- P/9. The merg intimation was also recorded under EXP/16. The body of the deceased was sent for post-mortem to 100 beds hospital, Korba under requisition Ex.-P/20. The post-martem was conducted by Dr. R.K. Divya (P.W.-20), who prepwed his report under Ex.-P/21, according to which, the cause of death was shock due to massive hemorrhage as a result of injury of vital organs of left side of neck. He opined that the death was (4) s Cm ' Amal No. 87 of 2000 homicidal. In fhe post-Mam, he noficed the following hawks:- 1. Incised wound over- lef‘l cheek in size of 4 cm. x 1 i~ cm. x muscle deep, wamversely placed, head of wound was towa‘ds chin and fail was Towards angle of mandible. 2. Incisad wound over leff side of neck in size of 5 cm. x 2 onilx bone deep, obliquely placed in middle par-f, head of wound was towards upper medial pa-t and fail was foww-ds lower lateral port 3. Incised wounds over left zygomafic region - (i) size 5 cm. x 3 cm, obliquely placed, bone was cut ,(li) size 4 cm. x 3 cm. x bone deep, " mandible bone was cut, obliquely placed lateral fo 1" wound, reaching towards lal'er-al part All 1he injuries were awe morfem in nafure. In further invesfigaiion, the sfafements of witnesses were recorded and the seized articles were sent for chemical examination and the report Ex.-P/22 ww received, according to which, blood stains were found on the iron blade of the Axe, clothes of the deceased (Leary/1 3miyan& underwear) md the clothes of the appellant (loonyi d: meter). No blood stains were found on the plain soil. However, it was found on blood stained soil. After completion of usual investigation, the charge-sheet was filed. On tria, the Special Court convicted the appellmt under Section 302 I.P.C. However, he was acquitted of the cha‘ges framed under section 3 (2) (v) of the Special Act. The conviction of the appellmt is mainly based upon extra judicial confession made toqmmy witnems supported by medical evidence asalso seizure of vwious wticles etc. (5) c» <6) l 4 @ Cn'minal Amal No. 87 ofZOOO Learned counsel for me appellant wgued fhaf fhe evidence of extra judicial confession does no? appear lo be reliable. He also argued lho'r P.W.-3, Kowal Singh Ralhia has shied lha‘l he had seen lhe injury on fhe back of line appellant bur in fool, no injury was found on his back, fherefor'e, he is unreliable Md his evidence regwding extra judicial confession of fhe appellm‘r should be disbelieved.” 1(8) On fhe other hmd, learned counsel for the State opposed l‘e‘‘. these arguments andsupported the judgment of conviction and order sentence passed by the trial court. He submitted that ther‘evare many witnesses of extra judicial confession, therefore, even if the evidence of P.W.-3, Kawal Singh Rathia is disbelieved, conviction, on the basis of other witnesses of extra judicial confession can well be sustained. (9) So far as the law on the point of extrajudicial confession is concerned, it is well settled that if the evidence to this effect is given by atruthful witness who appears to be unbiased, not even remotely inimical to accused md in respect of 'vd'iom nothing is brought out which may tend to indicate thatrhe may have a motive for attributing m untruthful statement to the accused, words spoken are clear, and unmistakably that the accused is the offender and nothing is omitted by the witness which may militate'against it, after subjecting the evidence to rigorous test on the touchstone of credibility, if it passed the test, it can be accepted and can be the basis for conviction. (10) In the present case, if we look into the evidence, P.W.-1, Bavarian singh has deposed that oh the fateful night Prem sei, Suknath, Bisaou and Puram came to his house. They stated that a dead body is lying in front of house of Prem Sai. Thereafter, he along with Prem Sci, Suknath, Bisaou and Puram went to the house of Panch namely- Sukh Sings and when they all were \ , 5 Cn'minal Amal No. 87 of 2000 sitting in the éalé near his house, the oppellmf came from fhe side of his house md he himseif stated that when he was sleeping in his house, the deceased aame there and assmlted him with Taryia, thereafter he chased the deceased md when he caught him in the éali in front of house of Prem 5ai, he also asswlted him with Tang/h Ratan Das Mdiant (P.W.-Z) hos aiso deposed that the appellant had visited him wearing blood stained clothes md had confessed before him that he had murdered the deceased by rag/am front of the house of Prem Sai. He further deposed that.he went to the place of occurrence and saw the body of the deceased having many injuries on it. Kawal Singh Rathia (P.W.-3) haslolso deposed that on the fateful night, when he was sleeping in the house, the appellant came there and made confession that he has murdered the deceased by causing injut'y by Tangia He had gone to the place of occurrence md had seen the dead body iying there. He‘has said in one line that there was some injury on the back of the appellmt due to which his clothes were also’blaod stained. It is on this statement, the counsel for the appellant has wgued that this witness (P.W.-3) does not appew to be reliable as in fact, no injwy was there on the back of the appeliant as has been stated by this witness. The Court beiow, in appreciation said that this witness might not have seen injuries but on the basis of wearing blood stained clothes md further on the basis of statement made by the wpellant before him, he might have deposed like this. The other witness, P.W.-9 Prem Sai has aiso deposed wout the extra judicial confession made by the appellmt. If we’appreciate the evidence of these witnesses, firstly, even after discarding the evidence of P.W.-3 Kai/val singh Rathia, (1 1) (12) @ 6 Cn'minal Aw No. 87 of 2000 fhe remaining evidence of exirajudicial confession is wrif large on record. When hue md cry wa made in m: viilage in the night itself at about 12, the villagers had gathered in mws at the place of occurrence and the appellart “gm also there, who mode confession to many of them, among whom some have been examined by the prosecution. The evidence of these witnesses appear to be reliable; it has not been brotght on record that even they were remotely inimical to the @pellant or they were having some motive for attributing an untruthful statement to the appellmt and nothing adverse has been brought on record t against these witnesses. The evidence of these witnesses, appears to be trustworthy and acceptable. (14) So far as the story setforth by the appellant that firstly, the deceased had gone to his house and had assaulted him on his back with ray/band then only, he chased him aid assaulted in the éa/i, the trial Court has discwded this story sayivg that firstly nothing was'brought on record to show that\the appellmt has also received injury. Even in his arrest memo Ex.- P/14, there is no mention about such injury on the back of the appellant. Rather, there is mention about one injury on the lower portion of the right leg. Moreover, if we look into the statement of accused/appellmt recorded under Section 313 Cr.P.C., it would appew that when the appellmt was faced with the evidence regm'ding his statement to the witnesses that firstly the decem had gone to his house and has caused injury on his .back and then, he chased him and asswlted him in front of the house of Prem Sai, vide questions No. 15 at 18, he totally i p denied about it and has simpiy said mi these are false statements That is to say that explanation or story setforth by the appellmt regwding hrstly causing wiry to him by the deceased does not find support from my material on record. Therefore, the only material which remains is the prompt extra mt‘* mm 7 @ (hkmM$g§g§dl%L87ofZxm judicial confession, according To which, he assaulfed fhe deceased wiih Tmyia, who died insfmfaneously. Tht finding of ihe Courtbelow is based upon cogent, reiiabie and frusmorfhy evidence regarding prompi' extra judiciai confession made by fhe appellant There appears fa be no illegaiify in the judgment of conviciion and order of senfence passed by ‘rhe trial Court There is no subsfance in fine appeal fhe some deserves to be dismissed and Is accordingly dismissed a‘ S\“ha ” i_.c.BHADoo // sum\K ‘“ (15) _ sci/- i Vi Judge Judge o/