DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA AND HON’BLE MR. R.N. CHANDRAKAR, JJ. Criminal Aggeal No.814 of 2005 Yashwant Kumar alias Konda — Versus - State of Chhattisgarh Sdl- ‘“ d/— T.P. Sharma Judge - 2-1 1 91 20 HIGH COURT OF CHHATTISGARH BILASPUR JUDGMENT FOR éONsmERATIoN Post for pronouncement of judqment on 9 of December. 2011 S I T. P. Sharma é> Judge v_ § ’IWMOM HON’BLE MR. JUSTICE R.N. CHANDRAKAR “r I I Sdl- \9 QweL‘.‘ ‘ R.N.Chandrakar Judge I HIGH COURT OF CHHATTISGARH BILASPUR {Appeal under section 374 of Code of Criminal Procedure, 1 973} Present: Mr. H.B. Agrawal, Senior Advocate with Mrs. Meera Jaiswal, Advocate for the appellant. Mr. J.A. Lohani. Panel Lawyer for the State/respondent. JUDGMENT (9th of December, 201 1 ) The following_iudqment of the Court was delivered by T.P. Sharma, J: - . Challenge in this appeal is to the judgment of conviction & order of sentence dated 30-9-2005 passed by the 1St Additional Sessions Judge, Raipur, in Sessions Trial No.193/2005, whereby & whereunder the Additional Sessions Judge, after holding the appellant guilty for commission of culpable homicide amounting to murder of Kumari Sheetal Bande and concealing the evidence of criminal case, convicted the appellant under Sections 302 & 201 of the IPC and sentenced him to ‘ undergo imprisonment for life & pay fine of Rs.5,000/—, in default of h payment of fine to further undergo RI for three months and to undergo RI for two years & pay fine of Rs.1,000/—, in default of payment of fine to further undergo Rl for one month, respectively. DIVISION BENCH CORAM HON BLE MR T P SHARMA AND HON B,LE MR R N §HANDRAKAR JJ Criminal Agpeal No.814 of 2005 (Reserved for judgment on 23—1 1-201 1) I APPELLANT: Yashwant Kumar alias Konda, son of Anjor I (in Jail) Das Kurre aged about 22 years Occupation Mazdoorl reSIdent of Satyam Chowk Abhanpur Bastl PS Abhanpur Dlstrlc‘t Ralpur (Chhattlsgarh) Versus . “‘5 ’ L x RESPONDENT: - State of Chhattisgarh Through Station - Incharge PS Abhanpur District Ralpur ~ (Chhattlsgarh) 2 @ 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant, and thereby committed illegality. 3. As per case of the prosecutiong’ion 26-3-2005 at about 11 a.m. unfortunate deceased Kumari Sheetal Bande, aged about 6 years, left her house for temple, she did not return back till 2 p.m., she was playing with other children of her age, the appellant who is deaf & dumb called Kumari Sheetal Bande and allured her that he will give money, he took her to a lonely place and tried to outrage her modesty. The appellant lost his mental balance and by screw driver, he caused penetrating wound over her private part till her death. When she did not return back to her house, her mother & father searched for her. Her dead body was foun‘d ’in the house of Bhaiyyaram situate at a lonely place. Missing report was lodged by her mother Pramila (PW-2) vide Ex.P-3. After recoveay of dead“ body, morgue was lodged vide Ex.P-9. Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-9, prepared inquest over the dead body of the deceased vide EXP-10. Spot map was prepared vide Ex.P-4. Bloodstained and plain paddy grass was recovered from the spot vide Ex.P-11. Dead body was sent for autopsy to Medical College, Raipur vide Ex.P-16A. Dr. V.K. Dhruv (PW-9) conducted autopsy vide Ex.P-16 and found following symptoms/injuries: - > Symptom of fresh torn was found on the body of the deceased. > Symptom of fresh torn was also found on the undergarment ofthe deceased. > Dry yellow stains were found on the undergarment of the deceased. Tongue protruded between the teeth. Dry blood was present on thigh and private parts. Contusion of 1 c.m. x 1.5 c.m. over back of chest. Abrasion over right index finger of 0.5 c.m. diameter. Abrasion over right elbowjoint of 3 c.m. x 2 c.m.. Multiple abrasions over left forearm of 4 c.m. x 4 c.m. area of 0.2 c.m. diameter. > Multiple abrasions over right forearm of 5 c.m. x 4 c.m. area of 0.2 c.m. diameter. > Vagina was torn. VVVVVV @ > Hymen was torn. > Injury found over private part. > Two slides of vaginal smear were prepared. Mode of death of the deceased was shock as a result of extensive genital tear. There was evidence of sexual assault. . During course of investigation, the appellant was taken into custody, he made discloser statement of screw driver vide Ex.P-5 and same was recovered at his instance vide EX.P-7. Clothes of the appellant were seized vide EXP—6. Nails of the appellant were cut and seized vide Ex.P—8. The appellant was sent for medical examination vide Ex.P-12A. He was examined by Dr. G.C. §harma (PW-6) vide Ex.P-12. The appellant was found competent to commit sexual intercourse, smegma was missing, abrasion was found over shoulder of 3 c.m. x 1 c.m. and stains were found over his clothes. Sealed articles of the deceased were seized vide EXP-15. . During course of investigation, the appellant was interrogated by R.Y. Tiwari (PW-10), teacher posted in Deaf & Dumb School, before Whom the appellant made extra judicial confession vide Exs.P-17 & P-18: Finally FIR was lodged vide Ex.P-ZO. initial Panchnama was also recorded vide Ex.P-21. Seized articles were sent for chemical examination. . Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation,‘charge sheet was filed before- the Court of Judicial Magistrate First Class,‘ Raipur who committed the 'case to the Court of Sessions, Raipur, from where the Additional Sessions Judge received the case on transfer for trial. . In order to prove the guilt of the accused, the prosecution has examined as many as eleven witnesses. The accused was examined under Section 313 of the CrPC in which he denied the circumstances appearing against him, pleaded innocence and false implication in the crime in question. . After providing opportunity of hearing to the parties, the Additional Sessions Judge while acquitting the appellant of the charge under Section 376 of the IPC,‘ convicted & sentenced him in the aforesaid manner. 4 9. We have heard Iearned counsel for the parties, perused the judgment impugned and record of the trial Court. 10.Mr. H.B. Agrawal, Iearned Senior Avocate appearing on behalf of the appellant, vehementiy argued that conviction of the appellant is substantially based on extra judicial confession made by the appellant before R.Y. Tiwari (PW-10). The appellant is deaf & dumb, for recording his extra judicial confession or statement assistance of expert was necessary. R.Y. Tiwari (PW-10) has not proved himself as xpert, therefore, he was not competent to record extra judicial confession of the appellant. Even otherwise, as per his evidence, he has recorded confession before the police whibh is not admissible in terms of Sections 25 & 26 of the Indian Evidence Act. Except aforesaid evidence, the prosution has not collected any evidence to connect the appellant with the crime in question. Evidence adduced on behalf of the prosecution is not suficient for conviction of the appellant. 11.Mr. H.B. Agrawal, learned SeniorAdvocate, placed reliance in the matter _ of State of H.P. v. Jai Lal and others1 in which while dealing ith the question of expert evidence in terms of Section 45 of the Evidence Act, 1872, the Supreme Court has held that expert is a person who has made a specialized study in a particular held and having voluminous experience in that field. Mr, H.B. Agrawal further placed reliance in the matter of Thanedar Singh- v. State of M.P.2 in which the Supreme Court has held that due weightage should be given to the opinion of expert. Mr. H.B. Agrawal also placed reliance in the matter of Surinder Kalir v. State of Punjab3 in which the Supreme Court has observed that extra judicial confession is weak piece of evidence and unless free from all infirmities need not be made basis for conviction. Mr. H.B. Agrawal relied upon the matter of Dilawarsab Alisab Jakati v. State of Karnataka4 in which the Karnataka High Court has held that while recording the evidence of dumb witness, the Court must record both signs as well as the interpretations of the interpreter and then only it becomes admissible under the Evidence Act. ;SCAcqCrJ—1944 SCAcqCrJ — 1632 3SCAcqCrJ—1599 l 42005 Cri. L.J.2687. C3/ d e ec f w j ; l"'l# Q2 12.0n the other hand, Mr. J.A. Lohani, learned Panel Lawyer appearing on behalf of the State/respondent, opposed the criminal appeal and submitted that the appellant has made extra judicial confession before R.Y. Tiwari (PW—10) who is expert in his field, he is teacher in the school of deaf & dumb persons, he used to teach and handle deaf & dumb persons and he is having' sufficient experience in the field. R.Y. Tiwari (PW-10) has recorded extra judicial confession in absence of police which is admissible evidence. The appellant was also harged for commission of the offence of rape, but he is lucky enough that he has been acquitted of that charge, though there was sufficient material aainst him. 13. In order to appreciate the arguments advanced on behalf of the parties, we Ffa‘i/e examined the evidence adduced on behalf of the prosecution. 14.ln the present se, homicidal death of deceased Kumari Sheetal Bande as a rsult of fatal injuries found over her body and concealing her dead body in a lonely house, have not been substantilly disputed on behalf of the appellant. On the other hand, same are established by evidence of Dr. V.K. Dhruv (PW-9) who has deposed that there was evidencegof sexual assault on the deceased, but for the reass best known to the prosecution, the prosecution has not taken proper care at the time of trial, even the prosecution has not bothered for collecting the report of the orensic Science Laboratory from the Forensic Science Laboratory during trial. The trial Court has acquitted the appellant of the harge under Section 376 of the IPC. .15.As regards complicity of the appellant in the crime in question, conviction of the appellant is sstantially based on evidence of extra judicial confession made before R.Y. Tiwari (PW-10). 16.As per evidence f Dashraj Bande (PW—1) — father of the deceased, his six years aged Sheetal was missing and finally her dead ody was found, the dead bo was hidden under paddy gss in a lonely house. As per para 3 o his evidence, previously, the appellant used to pass comments in filthy language and gesture. Pmia (PW-2) —- mother of the deceased, has deposed that on the fateful day, he dughter left her house at 11 a.m., she was plang with Kiran, Puja & Sonia. 17..Y. Tiwar (PW-10), teacher working in eaf & db school, has deposed in is evidence tha he was called by police and at the instance ‘ r in c g ca é a on F c ub o b dy ra f " ral r a yi R i d um h t 6 @ of police, he interrogated the appellant and recorded his version vide Ex. P-17. On second day, again he interrogated the appeiiant and recorded his version vide Ex.P-18. Defence has cross—examined this witness at length. In para 6 of his cross-examination, he has admitted the i suggestion of defence that at the time of interrogation with the appeliant, only he and the appellant were present, no police ofhcer was present. He has denied the suggestion in para 7 that he has recorded the statement of the acoused under the direction of police. He has specifically deposed that deaf & dumb person can understand his symbolic Iahguage. As per para 5 of his cross-examination, he is teacher in deaf & dumb school and he understands the symbolic language of deaf & dumb persons, even he is head of the school. 18.As pé‘r evidence of R.Y. Tiwari (PW-10), he is teacher in deaf & dumb school, he uséd to teach deaf & dumb persons, he was head of the schooltand he has interrogated the appellant in symbolic language which the appellant understands. He has recorded the version of the accused/ appellant vide Exs.P—17 & P-18. He has specifically deposed that at the time of such interrogation, except himself and the appellant, no police was present. His evidence clearly reveals that he has interrogated the appellant at the instance of police, but at the time of interrogation, police or other perso is not present. He was expert in the field and he used to teach the students f deaf & dumb. 1 9.As held by the Supreme Court in Jai Lal’s case (supra), expert is a persn who has made a specialized study in a particular field and having voluminous experience in that field. in he present case, R.Y. Tiwari (PW-10) has not stated anything that he was not having any experience in his field, inter alia, he has specincally admitted that he is teacher in deaf & dumb school and his students understand his symbolic language and even other deaf & dumb persons also understand his symbolic language. This shows his expertise in his field. He has recorded the l statement of the appellant. . " .As held y the Supreme ourt in the matter of Thanedar Singh (supra), due weightage should be given to the opinion of expert. .As held by the Supreme Court in the matter of Dilawarsab Alisab (supra, at th ime of rerding the evidence of dumb itness, the Court is required to record signs given by him and the interpretations of the ns o o t l i 20 b C l 21 ) e t co w l 7 interpreter, but in the present case, the Court has not recorded the evidence of the appellant. ‘ ‘ 1 22.Exs.P-17 & P-18 are the statements of the accused/appellant recorded by the expert in which the appellant has specifically deposed that he took the deceased to a lonely place Where he caused injury by sharp knife/screw driver on private part of the deceased girl till her death. This evidence is unrebutted. This is extra judicial confession. 23.As held by the Supreme Court in the matter of Surinder Kaur (supra), although extra judicial confession is weak piece of evidence and unless free from all infirmities it cannot be made basis for conviction, but in the the present case, extra judicial confession is free from all infirmities. 24.Extrajudicial confession is also evidence, once it is proved to be true, 4 same may be sufficient for conviction of the accused. Evidence of R..Y. Tiwari (?W—10) is corroborated yvell by previous conduct of the appellant, } as deposed by Dashraj Bande (PW-1) — father of the deceased. The trial g Court has rightly relied upon the evidence of R.Y. Tiwari (PW-10).; Evidence of R.Y. Tiwari (PW-10) is sufficient for drawing inference that f3 the appellant has caused homicidal death of the deceased with intent to commit murder and also concealed the evidence of criminal case. ‘ 25.After appreciating eVidence appreciating available on record, the Additional Sessions Judge convicted and sentenced the appellant as aforementioned. 26.While convicting and sentencing the appellant under Sections 302 & 201‘ of the IPC for causing brutal murder of six years’ aged girl to satisfy his V lust and concealing the evidence of criminal case, the trial Court has not committed any illegality. 27.Conviction & sentences imposed upon the appellant are based on credible, clinching and legal evidence sustainable under the law. On close scrutiny of evidence, we do not find any illegality or infirmity in the judgment impugned. W 28.Consequently, the appeal is devoid of merit, same is liable to be r dismissed and it is x hereby dismissed. w/ ‘ r Sci/f” ’ ' “sdl- T i “’7 T. '35:;erma ‘1 x mN-Chand‘akm '1 1 Soma \\ M/ Judge . [