I '‘ CORAM :. Hon’b Shri R.N. b Chandrakar J j v Sahdéo @ Chha Ragati Yaav, ys d e f‘S i w g’ District Birgahni, ear, resient J Polic o tatio'n Brgahni ~ Janjir, Chok, dav, Son of age about anjr-Chmpa (C.G.) Versus tate f Chtisga, District Magistate, Dtrict— thrh hpa .G.) Janjr— gi l. Shiv am aged out 2 years, Ban, det o Ve Jan, c v Janjgi, rFav eh hrmnd id Sh (cg d bo 2O /o f lag Bha I ang a Birgaani, P; S. h R ab 9 S/o hora reein f illag jgir Distrit JanjgiChmpa‘ r TS‘il Virexra Daera ing, aged Guda aut S years; resident o Vile irgan’i '‘hok, Birgaani, P.S. Jjgi, pa(C.G.) 'iistrict— Jjir— Ch Versus ' State of RESPONDENT N The Through the Distric Chhattisgarh, District~ Janjgir—Champa t Magistrate, (C,G.) And " CriminaLAQy' eal No.449 of 2004 APPELLANT 1 i about Suresh 21 Kumar years, r S/o Itwari, agedi- PS, Akaltara, /o Village Piparda,” Champa District Janjgir‘ y Versus The State of Chhattisgarh, t the District Magistrate, Jar’:jgir.Champa (C.G.) ESPONDENT hro ugh District— jIGH COURT OF CHHAITISGARH, BILASPUR Hbn’ble Shri Suni N J: le I Kumar Sinha 8 Crimgal Aggeal No. 344 of 2003 APPELLANT tu Ya m d d gia RESPONDENT S o hatrh r is oug Cam (C Crimigal Aggeal No. 3?5 of 2003 APPELLANTS ZJw h anr m R L Criminal Appeals No. 344- 012003; 375 0f2003 & 449 of2004 (Appeals under Section 3%, (2) of The Code of Criminal EzyggiqLel Apygaxanc e : Mr Avx adh Tripath1 Courwf” or the appellants 1n Cr A No / 344/9003 85 Cr A No 449/0004 , Mr ‘mgeshwar Shanna counsel for appellant No 2 Dharmendra Q Gudda and Mr Suehobn Slngh counsel for appellant NO l Shlv Ram 1n (J A No 375/2003 Mr Ashlsh Shukla Govt Advonate for the State 1n all the Cmmmal appeals \J JUDGMENT (25.08.2009) ”Following judgment 0f'the Court was delivered! by Sunil Kumar ginha, J.‘ (1) These appeals have been dlrected agalnst the Judgment and order dated 31 l 2003 passed 1n Sess1ons Tr1al No 160/2002 by the Fourth Additional Sessions Judge (F.T.C.), Janjgir (C:;G.), whereby, the appellants have been convicted u/ss 302 8a 2O 13%PC (, and sentenced to undergo rigorous imprisonment for life 8a toipay fine of Rs 100/“ in default of payment of fine to undergo RI for 1 month and R l for 5 years 8r, to pay fine of Rs 500/— in default of payment of fine to‘undergo RI. for 6 months, with a further direction to run the sentences concurrently. (2) The facts, briefly stated, are as under:— On 1.3.2002, at about 7.00 am, Sarju erasad Rathore (PW—l) saw two dead bodies lying in Mundinala near Bircahni' Chowk [He lodged Merg intimations (Ex P/l 8L. P/2) in the concerned police station The Investigating Officei reached to that place gave notices (Ex P/40 85 P/4l riminal Appeals N0. 344 of2003; 375 ot‘2003. & 449 of2004 to the Panchas and prepared 1nque§¢ reports (Ex P/42 8r, 13/43) on the deaa bodles of the deceased persons whlch were 1der1t1fled to be the bodles of Amardas @ Ammu and Anil Kumar, residents of Sadar Bazaar Champa Site plan as prepared under bx P/44A and another s1te plan was prepared by Hala tan under Ex P/15 Bld ted SO1 p1a1n 3011 a two pr of chappels were selzed om Mundinala uner EX.—P/37. During he cou of investigatio of‘t Merg, th nvesting Oficer cae to kno that the dcesed persons er asulted by the celn by lai, iron amer nd paya (th leg of the cot in the intervening night of 28.2.2002 and .3.200 in the hotel belongi to appellant Sures Kar Patel which was situated at Birgahi Chowk and their ead bodies were thrOn by tem i he nal O sch informatio he rcorded Dehatlzh P/46) t 00 p m based on wc a Frst Inomaton Rept (E 7) was lod oo stained $011 and ain 01 ere sed from the plac o occurrece (otel o appellant esh Kumar Patel) und X.~6. The dead o of the deceased perss wer sen for tir post—mortm‘ o Distric Hopital, Jnjgir unde X.— P/16 8a P/27, whe t pot—rte eaminti e conducted y r. S. Prkar (PW—4) and D. RD, Gta (PW—6), ho prepred their reports E—P/17 8 P/28. Thy noticed multiple‘grievous injuries on the Vital parts of‘the bpclies including the skull of the deceased persons and opined that the death of the deceased persons were caused by coma and haematorna due to head injuries and lthe deceased persons died homicidal death . w § / In further investigation, after taking .‘the accused/appellants into custody, their memorandum statements (Ex P/3 13/4 P/‘J 8t P/33) were recorded u/s 27 C Q w k Paw oo saln 1 nd ars fr d t rse n he e Itiga f m w ea we sa U acused/applats th hm a e ) 12 ng h um n d w h n t a n u n e masz EX a 2 hih i fri or x P/4 doe Bld pl $1 w eiz e f n h f Sur er EP/3 bdies on e t he e t t s a r E re he smom xaons wre b D R abha r u’p w a x. t e grimmi Agupaxs No. 3449;"2QQL32_5 'of2qg3 & 449 (mom 1 of the Evidence Act-V and paua of cot (3 Nos.) and‘liron hammer were seized at tm: instance of the accused pegsons under EXP/5 P/6 P/H 87 P/34 Cloths of the accused persons were also selzed The selzed artlcles were sent for the1r chemlcal exammahon to Forenmc Selence Laboratory, Ralpur forn where ’ a report Ex. P/59 was obtalned‘ Accordlng to the F S L ret‘nr‘r blood stains were found on the pava 8c the hammer selzed Irom accused/appellants bahdeo and Sur sh w“ After completion of usual 1nvest1gat10n the chatge- sheet was flled 1n the Court of Chlcf Jud1c1al Maglstrate Janjglr who 1n turn cornmv d the matter to the concerned Qesswns court, from WJ egc, 1t was recelved on transfer by the Fourth Addltxonal sessmns Judge (F T C ) Janlglr (C G) who conducted the trial 01d conv1ctcd and sentenced the /, _ ) accused/appellants as aforementloned (3) The prosecution came with a case based on two sets of evidence; One Ishwari YadaV (PW—9) who also narrated the story‘ to Laxminarayan (PW-S). The other was the eye—witness account of sole eye~witness W. ,J . “c / was the extra—judicial confessgon made by appellant Suresh Kumar before Rajesh Kumar Tiwari (PW~7), Gulab (PW~lO) Ganesh Prasad Sahu (PW ll) 8L Dharrnendra (PW—15) ‘ 1n whlch he allegedly confessed that he along w1th the other appellants namely Shw Ram Dharmendra O Gudda and Sahdeo O Chhotu Yadav had commttted the murder of the deceased persons (4) The sole ere—witness § , namely lshwarl Yadav (PW—9) turned hostile and he did not suppor’ the case of tlie prosecution Even @ Criminal A eals No. 344 of2003' 375 (#2003 & 449 0f2004 ’5 Laxminarayan (PW—S) also turned hostile and denied that the incident was disclosed to him by Ishwari Yadav (PW~9) J v 5) The learned Sessions Judge con (EX.~P/42 & P/48) that the dead bodies of the deceased persons were found in the nala. The deceased persons had susteined many injuries. The hm) Autopsy Surgeons namely Dr. RS Prabhakar (PW-4) and br. RD. Gupta (PW—6) also notic¢d multiple grievous injuries on the vital parts of the bodies, including the (7) V‘Learned counsel for» the appellants argued that the sole‘eye- Witness lshwarj Yadav (PW-9) has turned hostile as he haslnot supported the case of prosecution at trial, Even the witness to \\ 5) has also turned hostile and denied that the incident Was \\ disclosed to him. They further argued that the evidence of extra— whom he allegedly narrated the story namely Laxminarayan (i?W» ,;./ , .. . ym o ' I ' Cunnna [meals NO )4‘-\/' L v: J5 01mm); &449 0f2004 a m; :9: “ssmn made b§ a u “I mt Suresh Kumar before the above witnesses ls shaky and unreliable. They also argued that even otnerw1se also conv1ct1u- V fhe othCJ appellants cannot be sustained on the basis of sb-calleci extrajudicial confession fnade I? by co~accused Suresh Kumaz‘ as the same was not a substantive evidence against them within the meaning’pf Section 3O of. the Evidence Act. at (8) On the other hand, Mr. Ashish Shukla, learned Gbvt. Advocate appearing on behalf of the State, opposed these arguments and supported the Jud ment and order passed by the Tecons Court. /,, (9) Wt haVe heard the learned counsel for the/parties at length and have also perused the records of the sessions case. (JO) In State of UP ~vs- MK Anthony (1 985) 1 SCC SOS/the Apex Court held that “there is neither any rule of law nor’iof‘ prudence that ev1dence furnished by extra Jud1c1al confession cannot be relied upon unless corroborated by some other credible evidence. The courts have conSIdered the eVidence of extra Judicial confessmn a weak piece Oi eVidence If the evidence about extra Judioial confessiOn, comes from the mouth ‘of witness/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 for attributing an untruthful statement to the accused, the words Ti 7 Criminal Appeals No. 344 of‘2003; 375 of2003 & 449 0f2004 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, then after subjecting the evidence of the Witness to a rigorous test on the touchstone of credibility if it passes the test, the extra judicial confession can be accepted and can be the basis of a conViction 1n such a Situation to go 1n search of corroboration itself tends to cast a shadow of doubt over the ev1dence 1f the eVIdence of extra ‘judicial confession is reliable, trustworthy and beyond reproach the same can be relied upon and a conviction can be founded thereon.” (11) In Narayan Sinqh.Vs~ State ‘ofM.P., (1985) 4 sec 26' the Apex Court held that 1t 1s not open to any court to start With a presumption that an extra Judic1al confessmn is a weak type of eVidence and it depends upon the veracity of the witnesses to whom it is made and it is for the court to decide on: the acceptability the evidence having regard to the credibility 0i; the witnesses. -, (12) Further in Baldev Rai —V$- State of Han/and, 1991 supp (1i SCg 14 the Apex Court laid down that " An extrajudicial confession, 1f voluntary can be relied upon by the court along With other eVidence in conVicting the accused The value of the eVidence as‘to the confess1on depends upon the veracity of the Witnesses to whom it is made It is true that the court requ1res the Witness to give the actual words used by the accused as nearly as 8 Criminal Appeals N0. 344 01'2003; 375 0r‘2003 & 449 nf‘mad poss1ble but 1t 1s not an 1nvam‘ole rule Lhat the court should not accept the ovidence, if not 11x: actual words but the substance were given. It is for the court having regard to the credibility of the ‘> witness to accept the evidence or not. When thevcourt believes the witness before whom the'confession is made and it is satisfied that the confession was voluntary, conviction can be founded on such evidence. Keeping these principles in mind, the ApeV/‘LeCourt lound 1n this case that the conless1on has been properly acrepted and acted upon by the co 1rts below and there was no scope for any doubt regarding the comphc1ty of the appellant in the crime The confessron of the appellant was voluntary. The testimony of PW 4 and PW being responmhlc persons could not be doubted 1n the absence of any materlal to Show that they had been motivated to falsely implicate the appellant. The very presence of the appellant and his father with the party of lshar Dass throughout the operation up to lodging of complaint at the police station, dispel any suspicion against the prosecution case and clparly pomt to the truth lness oi the same l—ns Lordships said that therefore thev were unable to find any infirmity in the confessmn which has been accepted and relied upon by the courts belowt" ‘ as (18) In Kavita Vs. State of Taxi’iilnadu» 11 998) 6 SCC 10$, the Apex Court again reiterated the same principles that there is no doubt that convictions can be based on extra judiCial confessmn but it 1s well settled that in the v ry nature of things it is a weak piece of evidence and therefore, it is to be proved just like any 9 _ Criminal Appeals No, 344 0>F70mv 17s nfmm x! 440 nmana other fact and the valuerthereof depends upon the veracity of the witness to Whom it is made. ‘It may not be necessary that the actual words used by the accused must be given by the witness but it is for the Court to decide on the acceptability of the evidence having regard to the credibility of the Witnesses. ll (14) Further in State ofPuniab —Vs- Gurdeep Sinqh, 1999 SCC ‘x (Cri.) 1368‘, again the Apex Court emphasized that in the matter of evidence of extrajudicial confession, the evidentiary‘value of the evidence depends upon the vetacity of the Witnesses to Whom itis made and it can be treated as substantive evidence if there is! found some assuring material or circumstance and the delayin recording extra judicial confession before a person wholly unconnected with the police is always a'matter of great suspect. (15) In Gagan Kanojiai and another ~Vs~ State of Punjab, 2007 (2)'Crimes 81 (SC), the Apex Court held that the extra judicial confession can form the basis of a conviction and by way of abundant’caution, Court may look for some corroboration. (16) Therefore, on the above’principles, it is clear that there is no Q rule of law that the evidence of extra judicial confession cannot be relied on alone and for redording a conviction on such confession, there should be corroboration by some other evidence. On the contrary, if the evidence of extra judicial confession is reliable, trustworthy and is beyond the shadow of doubts, the same can be '5‘; made the sole foundations for recording conviction of the accused e t‘: lU Criminal Appeals No. 344 gfmm' 115 of 2003 & 449 of 2004 r and the Court r-y way of abundsn‘t caution, may look for some corroboration. This is all aboui H'l'e extrajudicial confession made by an accused for himself which woulcl be a substantive evidgence against him. The law in‘relatio'n to the extrajudicial confession in which the maker also involves mo other accused persons and the eVidenthirV value of that'evidence qua the co—accused persons is on different footings which we shall discuss later on. (17) Now we shall examine the extra—judicial confession saili to be made by appellant Suresh Kumar before the above 4 witnesses. (18} Rajesh Kumar Ti-wari (PW—7) deposed that “On 1.3.2002, at about 9.00 a.1n., Gulab Bhavnani (PW—10) and Ganesh Prasacl Sahu (PW 11) came to his place and stated that the dead bodies of deceased Ammu Udashi and Am Sahu aic lying 1n Mundinala They Went to Mundinala and saw the dead bodies; He telephonically informedthe police regarding the dead bodies in nala. They came to know that in. the night, the deceased petisons f4 had gone for taking liquor and there was some quarrel and then they were killedl Appellant Suresh Kumar has a hotel at Birgahni Chow}; They went to his hotel and saw that the floor of the hotel was cleaned They called appellant Suresh and asked about all this. Firstly Suresh tried to avoid them but later on, he stated; that deceased Amardas @ Ammu and Anil Sahu came to his hotel in «the night, they had asked for glasses 8L water for drinking liguor, after taking liquor some quarrel took place between Dharmendra, Shiv Ram, Chhottu and the deceased persons and thereaftertthey 11 Criminal Appeals No‘ 344 of3003‘ 375 0L1003 & 449 of2004 were assaulted by the accused persons by paua of the cot and‘iron hammer and after theih Mundinala". death, their dead bodies were thrown in (19) Gulab (PW lO) also deposed that on 132002 he was present along w1th Dharmendra Udashl (PW 15) Rajesh Ku’rnar T1war1 (PW 7] and Ganesh Prasad Sahu (PW 11) Appellant Suresh made extra-Jud1c1al confess1on before them as deposed by Rajesh Kumar Tiwari (PW—7). (20) Ganesh Prasad Sahu (PW ll) is the elder brother: of deceased Anil Sahu He deposed that “On the fateful night-fiat about 8.00 p.rn., Anil Sahu left the house saying that he is goling 1n some marriave He did not return in the nlght In the morning, they came to know that the uead nodies of two persons are lying 1n Mundlnala He went to Mundinala and saw that one of the dead bodies was that of h1s brother and the other was of deceased Ammu Udashi They had gone to hotel of Suresh Patel Suresh made extra-judicial confession before them. Gulab Bhawlani (PW- lO), Rajesh Tiwari (PW—7) there”. and other persons were also present 7Q (21) Dharmendra (PW~15) is the brother of deceased Ammu. He also deposed that “Appellant Suresh made confess10n before them saying that the deceased persons were assaulted by him, Gudda‘Thakur) Shiv Ram Yadav and Chhott-u \ t extra Jud1c1al v‘.\_ \ \ ’ \ a)&1 ‘ r Criminal Appeals NO 344 01 7003 "75 0f200g & 449 0f7004 Yacim' qVd when they died, their dead bodies wéfe thrown in Mundinala". r (22) Rajesh Tiwari (PW—7) deposed in examinationji‘n—chief itself that the police party reached Birgahni Chowk after 20—30 minutes of making of the extra—judicia1 confession by Appellant Stiresh Kumar before them. The information regarding murder of the deceased persons was Given to the police by Laxminarayan (PW—5). Laxmlnarayan 1s the w1tness t3 Vxhom the eye W1tness Ishwan ‘Yadav (PW 9) had narrated about tne 1nc1dent Though many facts have been mentioned in Dehatmallshl (EX.IP./46) but the facts 1n relation to making of extrajudicial confession by appellant Suresh Kumar is not mentioned therein. If Suresh Kumar had made extra—judicial confession beforearrival of the police to the place of occurrence, as it comes in the evidenee of above 4 Witnesses, in all probability, something about such confession would have’been /’ r\ x i mentioned in this document. ai- '\. (23) Gulab (PW 10) is‘also a witness to inquest reports (Ex—W42 8a P/43) of the dead bodies of me deceased persons He did not mention at the time of inquest that appellant Suresh has made 7‘ extrajudicial confession before them, where— as, the alleged confession was made prior to reaching of the police to the place of occurrence. Ganesh Prasad Sahu (PW—ll} is also a witness of inquest (Ex.—P/43) and is elder brother of deceased Anil Sal'fu. He also did not make mention about the alleged extrajudicial confession at the time‘of inquest. If these persons, one of whom l atg ké 1 @Ii Crimmal Appeals No. 344 of 2003: 375 01’2003 & 449 0f 20% 13 was the close relatlon of the deceased were knowmg about the meldent Why they dld not dlsclose 1t to the pohce on the above when their 161 statements were recorded on 5.3.2002. This creates a doubt about making of the extrajudicial confession by appellant Suresh Kumar before these Witnesses on l 3 2002 pr101 to reaching of the police at the scene of occurrence as claimed by them 1n their Court eVIdence. (24) PW 7 Rajesh Kurnar Tiwarl has been confronted by his police case diary statement (EX D/l) on many points but the Important one 1s that he mentioned in his case diary statement that Suresh denied to accept the inc1dent but when they asked him after pressurizmg him than he told the above 1nc1dent This portion has been marked as A to n in his case diary statement (EX D/ 1) which he did not depose before the Court Simllar is the pos1t10n of Gulab (PW 10) who also stated in his diary statement (Ex.—D/2) that firstly Suresh denied the 1nc1dent but when they asked by pressurizmg him he told about the inCident of the night This portion in his diary statement has also been marked as ‘A to A which he also did not depose before the Court Dharmendra Udashi (PW 15) was also confronted With his diary statement (EX — D/3) in which he also stated that firstly Suresh did not tell them i anvthing but when he was pressurized by them then only, he disclosed the inCident.‘The portion of his such statement hasealso 14 Criminal Appegls N0. 344 01‘2003‘ 17§ (“”9003 & 449 of2004 been marked as “A to A’ in EX.—D/3 which he did not depose béfore the Court. In appreciation of evidence of these Witnesses, firstiy it appears to be doubtful that in fact, Suresh made emy ex‘traa judicial confession before them at about 8—900 am, on 1.3.2002) as contended by these Witnesses as- nothing about such confession comes in Dehatinalishi (EXP/46! and the inquest reports (Ex.—P/42 85 13/43) which was prepared in their presence and Gulab (PW—10) 8a Ganesh Prasad Sahu (PW~11i were parties an to the inquest reports, Even if it s held for the sake of argument that appellant ESuresh made such statement before them,’ according to the versions of these witnesses in 161 statements, that was elicited after pressurizing him, which they have omitted to depose before the Court, This shows that if anything was stated by Suresh before these witnesses, that was not voluntary and} it appears to have been caused by the inducement by‘ pressurizing him by the said witnesses. ,‘x \H, 4 (25) So far as evidentiary value of’the alleged extra—judicial confession of accused/appellant Suresh Kumar against the other co—accused persons are concerned, ‘confession of a 'co'accused is not substantive “evidence” as defined in Section 3 of the Evidence Act, and can only be “taken into consideration” against the other accused. Hence a conviction of an, accused person cannot be founded on the confessions of the co-accused only, if there is no substantive evidence on record on which such conviction can be based. In Kashmira Sinqh «Vs- State of Mddhya Pradesh, AIR ('53 Criminal Agg‘eals N0, 344 0f20m' 1W 0f2003 & 449 0f2004 1952 SC 159, the Court has laid down the principles as to the use to which the confession of a co—accused can be put, and it has been held that the only limited use to which such a confession can be put is to refer to it for the purpose of lending assurance to the belief which could be attached to such other evidence, if the Court entertains a hesitation on that point, and of fortifying that belief. (26) In Nathu -Vs- State of Uttar Pradesh, AIR 1956 SC 5'6, it was held that if there is no sufficient substantive evidence upon which conviction can be based, the confession of a co—accused cannot be of any use at all, and should be left altogether out of consideration, because there can be no question of lending assurance to the belief in any evidence if that evidence in itself is insufficient for being made the basis of a conviction. (27) This appears to be aloonsistent View expressed by the Apex Court. In State of M.P. Through CBI and Others —Vs- Paltan Mullah and Others. (2005) 3 SCC 169, dealing with the same question, the Apex Court observed in Para~l8 as under:- “Another incriminating circumstance sought to hie proved against’the accused is the extra—judicial confession alleged 'to have been made by the ninth accused Paltan Mallah wherein he named A-l, A—2, A—S and A46. It is