HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: Coram: HON'BLE MR.T.P.SHARMA & HON'BLE MR.R.N. Chandrakar, JJ. Appellant/ (In Custody) Criminal Appeal No. 280 of 2007 Ajay Kumar Nayak, aged about 27 years, S/o Jalandhar Yayak, R/o Village Mubhariya, Post Akhu Apda, P.S. Bhandari Pokhari, District Bhadrak (Orissa) at present at Quality Foundry Industries, Amasivni, Chouki Vidhansabha, P.S. Dharsinva, District Raipur(C.G.) Versus State of Chhattisgarh Acting through Officer In-charge Police Station Dharsinva Chouki Vidhansabha, District Raipur(C.G.) (CRIMINALAPPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973) Respondent Present:- Mr. Uttam Pandey, counsel for the appellant. Mr. Neeraj Kumar Mehta, Panel Lawyer for the State. ORAL JUDGMENT (Passed on 18th August, 2011) PerT.P.Sharma,J.:- 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 07.02.2007 passed by the 12th Additional Sessions Judge (FTC), Raipur, in Sessions Trial No.341/2006, whereby & whereunder learned 12th Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of K. Subramaniyam (since deceased) convicted the appellant under Section 302 of the I.P.C. and sentenced him to undergo imprisonment for life. 2. Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted & sentenced the appellant as aforementioned and thereby eommitted illegality. 3. As per case of prosecution, on fateful day of 15.05.2006 at about 9.30 p.m. deceased K. Subramaniyam @ Annaji was sleeping on bed, appellant next to neighborer of K. Subramaniyam was sleeping on sand near the room of deceased. Appellant assaulted deceased by iron rod over his head and other parts of the body and caused serious injuries. Bawan Bhagedia and Vikram Pradhan (PW/5) came to spot, whom appellant had also assaulted then they shouted. PW/3-Deepak Kumar and other persons came to the spot to whom appellant made extra judicial confession that he has caused aforesaid injuries to deceased. They took injured K. Subramaniyam @ Annaji to Ramkrishna Hospital, Raipur. PW/2-Pradeep Kumar Pradhan went to police station and lodged F.1.R. vide Ex.P/3. Injured was sent for examination vide Ex.P/16 and was examined by PW/21- Dr.S.N. Madhar'a at 11.10 pm., his condition was poor. Injured was also examined in Ramkrishna Hospital vide Ex.P/29,30,31,32 and 35 and there were many injuries found over his head and he was immediately admitted in hospital for treatment. Thereafter, he was examined by PW/19-Dr.Sandeep Dave and during course of treatment deceased died on 21.05.2006. He noticed fracture on right temporal parietal bone and subdural haematoma. Death was intimated vide Ex.P/2 and on the basis of which Ex.P/1 was recorded. After summoning the witnesses vide Ex.P/20, inquest over dead body of deceased was prepared vide Ex.P/21. Spot map was prepared vide Ex.P/15. Blood stained pillow, bed sheet and baniyan were seized vide Ex.P/4. Dead body was sent for autopsy to Dr. Ambedkar Hospital, Raipur vide Ex.P/22. Dr. V.K. Dhruw (PW/12) conducted autopsy vide Ex.P/13 and found following injuries:- Stitched wound over right temporal parietal region at length of 25 cm. 36 stitahes were found. Stitched wound over left forehead of 5 cm. 7 stitches were found. Stitehed wound over left parietal region of 9 stitehes and 5 cm. in length. i) ii) iii) iv) Stitched woundover back of the ear of 7 stitohes and 3.5 cm in length. ••/ '^^l v) Stitched wound just below the right eye of 4 stitches and 2 cm in length. vi) Lacerated wound over upper part of the left ear of 3x2 cm. vii) Compound fracture of left parietal and temporal bone of 4x3 cm. Deformity in bone of right temporal and parietal region of 11x9 cm. in size. Death was homicidal in nature. 4. During course of investigation, appellanVaccused was taken into custody. Iron rod stained with blood was seized from the appellant vide Ex.P/5. Seized articles were sent for chemical examination vide Ex.P/25. 5. Statements of the witnesseswere recorded under Section 161 of the Code of Criminal Procedure (for short the 'Code'). After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate 1 Class, Raipur, who in turn committed the case to the Court of Sessions, Raipur, from where the 12 Additional Sessions Judge, Raipur received the case on transfer for trial. 6. In order to prove the guilt of the accused/appellant, prosecution has examined as many as 22 witnesses. Statement of the accused/appellant was recorded under Section 313 of the Code where he denied the circumstances appearing against him and pleaded innocence and false implication in the crime in question. 7. Arter providing opportunity of hearing to the parties, learned Sessions Judge, convicted & sentenced the appellant as aforementioned. 8. We have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial Court. 9. Learned counsel for the appellant vehemently argued that conviction is based on extra judicial confession and evidence of PW/7-Kailash Boral. As per his evidence, appellant made extra judicial before him, but his evidence does not inspire confidence and trustworthy even at the time of said statement appellant was in intoxicate condition, therefore, the said alleged extra judicial confession is not safe to rely. He further argued that the aforesaid evidence is not sufficient to connect the appellant with the crime in question. Other witnesses have supported the case of prosecution but prosecution has not examined the injured Bawan Bhagedia and Vishwajeet. ^y^ ^/ lO.Learned counsel for the appellant placed reliance in the matter of C.K. Raveendran Vs. State of Kerala (2000) 1SCC 225 in which Apex Court has held that if the case of the prosecution is not proved on behalf of reasonable doubts then accused is entitled for acquittal. Apex Court has further held that extrajudicial confession made by the appellant after consuming the liquor could not be said to be voluntary or truthful extrajudicial confession. Reliance is placed on record. 11.Learned counsel for the appellant also placed reliance in the matter of Kamta^Prasad Lodhi&^)rs^ Vs. State^QLChhatt[s9arh^007 (3) 69 in which this Court has held that if extra judicial confession was found surrounded by suspicious circumstances or did not inspire full confidence of Court, Court must look for independent reliable corroboration. 12.Learned counsel for the appellant further placed reliance in the matter of Povame Bhadru Vs. State pf C.G, and Sode Mahadeo Vs. State of C.G. 2007(1 )C.G.L.J.2Q. in which this Court has held that extrajudicial confession made by the appellant under threat, cannot be relied upon. 13. On the other hand, learned panel lawyer for the State opposed the petition and submits that deeeased was sleeping on bed, appellant next to neighborer of deceased K. Subramaniyam was sleeping on sand near his room and appellant was found near the place of incident. He made extrajudicial confession before PW/7-Kailash Boral which inspires confidence and trustworthy and same is safe to rely upon suspicious extrajudicial confession made by the appellant. 14.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. 15.1n the present case, homicidal death as a result of fatal injuries found over the vital part of body of the deceased K. Subramaniyam has not been substantially disputed on behalf of the appellant, even otherwise same is also established by the evidence of Dr. Vikash Kumar Dhruw (PW-12) and autopsy report Ex.P/13, Dr. Atul Tiwari (PW/16) & medical report Ex.P/29 and Dr. Sadashiv Pillai (PW/18), Dr. Sandeep Dave v ';t ^> (PW/19), Dr. Ajit Sadani (PW/20), Dr. S.N. Madharia (PW/21) that death ofdeceased was homicidal in nature. 16.As regards complicity of the appellant in crime in question is concerned, conviction of the present appellant is substantially based on evidence of PW/7-Kailash Boral. As per his evidence he was called by Vijay and Vishwajeet then he went to place of incident where deceased was found on bed. Appellant was also found in front of place of incident upon sand, he had consumed liquor. Appellant made extrajudicial confession before him that he has assaulted (+ii'<R^i) deceased K. Subramaniya @ Annaji then PW/7-Kailash Boral admitted injured Annaji to hospital. Presence of the appellant near the place of incident has not been substantially disputed, on the other hand also established by the evidence of Pradeep Kumar Pradhan (PW/2). Defence has cross-examined Kailash Boral (PW/7). In para 2 of his cross examination he has admitted that there was no conversation with him by the appellant and appellant has not stated to him that he has caused injuries to deceased Annaji. He has specifically repeated that appellant himself told that he assaulted deceased Annaji. 17.1n the matter of C.K. Raveendran (Supra) appellant went along with witness to arrack shop and consumed liquor, whereafter appellant disclosed the entire incident and therefore, such statement cannot be said to be voluntary and truthful one and on the other hand it is the outcome of the consumption of liquor, both the witness as well as the accused, if at all he can be said to have made the statement. 18.The case of C.K.Raveendran (Supra) and the case in hand although other witnesses have not supported the evidence of PW/7-Kailash Boral but evidence of PW/7-Kailash Boral is very specific relating to extrajudicial confession made by the appellant. There is no suspicious on the evidence of PW/7-Kailash Boral. In the present case appellant was present near the place of incident and made extra judicial confession before PW/7- Kailash Boral. These two circumstances are sufficient for drawing inference that only appellant has caused homicidal death amounting to murder of deceased K. Subramaniyam @ Annaji. ^ 19. After appreciating the evidence available on record, the learned Additional Sessions Judge has convicted and sentenced the appellant as aforementioned. 20. On close scrutiny of the evidence adduced on behalf of the prosecution, we do not find any illegality or infirmity in convicting and sentencing the appellant. 21. Consequently, the appeal being devoid.of merits is liable to be dismissed and is hereby dismissed. vi|;')y Sd/- T.P. Sharma Judge Sd'- R-N. Chandrakar