^h HIOH COURT OF CHHATTISGARH AT BILASPUR DIVISIONBBNCH CORAM: HON'BLEMR. T.P.SHARMA& HQN'BLE MR. R.L. JKANWAR. JJ. Criminal Appeal No. 552/2004 APPELLANT (IN CUSTODY) VBRSUS RE8PONDENT Panka Viz Panku, S/o Jhijhara Viz Jhijharoo, Aged about 42 years R/o VUlage BohUe phiphaMpani Police Station Kukdiir, District Kabirdham (C.G.). The State of Chhattisgarh Through P.S. Kukdur District Kabirdham (C.G.). MBMORANDUM OF APPEAL UNDER SECTION 374 (2) OF THB CODE OF CRIMINAL PROCEDURB. isent:- Mr. Sudhir Verma, Advocate for the appellant. Mr. Arun Sao, G.A. for the State/respondent. ORAL-JUDOBBIBNT (Passed on 13/09/2010) The foUowins iurifirmftnt ofthe Court was passed bv T.P. Sharma. J:- 1. Challenge in fhis appeal is to fhe judgment of conviction and order of sentence dated 27/4/2004 passed by Additional Sessions Judge (F.T.C.) Kawardha in Sessions Trial No. 176/2003 whereby and where under after holding the appellant guilty for the offence of commission of culpable homicide amounting to murder of Mehattar convicted ftie appellant under Section 302 ofthe Indian Penal Code and sentenced life imprisonment and fine of Rs. 200/- in default of payment of fine amount additional rigorous imprisonment for 3 months. 2. Conviction is impugned on the ground fhat without any iota of evidence sufficient for conviction of fhe appeUant, Court below has convicted and sentenced fhe appellant as aforementioned and fhereby committed an megaUty. 3. Brief case of the prosecution is, Mehattar (since deceased) uncle of appellant was residing at wUlage PhiphUpani Police Station Kukdur District Kabirdham. AppeUant was having suspicion that his iincle Mehattar (since deceased) was having Ulicit relation with his wife Sukariya Bai. On fateful day of 21/9/2003 between 3 to 5 P.M. appellant went to fhe house of Mehattar where son of Mehattar Veersingh was present He demanded bow and arrow from son of Mehattar. PW8 Veersmgti was ill and who directed to take bow and arrow from fhe room then appellant took out the bow and arrow and went towards field Mehattar (since deceased) was present near the place where country made Uquor was used to prepare. He saw fhe appellant and reached towards forest fhen he shot arrow to Mehattar. Mehattar feU down then he further assaulted him by axe Mehattar died. AppeUant came to his house .^\ v^y ^- along with axe and bow, he hidden bow and axe in his ^ house. VUlagers caine to know about tiie incident. Appellant made extra judicial confession to PW1 Chaitram, PW2 Panuram and also to tfae member of Panchayat fhereafter PW1 Chaitram went to fhe police station and lodged Mai^g intimation vide Ex. P-1 on fhe basis of Marg mtimation agam numbaiy Marg intimation was recorded vide Ex. P-15. Dehatinalshi was recorded vide Ex. P-10. First Information report was lodged vide Ex. P-9. Rojnamcha was-i^ecorded vide Ex. P-6C. Affcer summoning the witnesses vide Ex. P-5 inquest over the dead body of deceased was prepared vide Ex. P-6. Dead body was sent for autopsy to Primaiy Healfh Center, Pandariya. Autopsy was conducted by FW3 Dr. V.P. Jaiswal vide Ex. P-8 and found foUowing injuries.:- (1)- Arrow penetrated in the chest. (2)- Part of scalp to the extent of 8 x 3 c.m. was depressed. (3)- Fracture ofleft mandible bone. (4)- After removing the arrow having injury was examined and found incised wouad of 2.5 x 2 x 1.5 c.m. over rigtit side of the chest On Intemal Examination:- Fracture of parietal bone of8 x 3 c.m. was found. Deafh was homicide in nature. 4 4. Appellant was taken in to custody on 25/9/03. He v , ' made discloser statement of Axe and bow vide Ex. P-2. Bow was recovered at fhe instance of appellant vide Ex. P-3. Axe was recovercd at ftie instance of appeUant vide Ex. P-4. Spot map was prepared vide Ex. P-11. P&twari also prepared spot map vide Ex. P-15. Cloths of the accused were seized vide Ex. P-7. Sealed cloths of fhe deceased and arrow were seized vide Ex. P-14. 5. After recording the statements of the witnesses under Section 161 ofthe Code ofCnminal Procedure, 1973 (in short the Code') and on completion of the investigation, charge sheet was filed against the accused/appeUant in the Court of ChiefJudicial Magistrate, Kabirdham, who in tum committed the case to fhe Court of Sessions, Rajnandgaon from where the leamed Additional Sessions Judge, received the same on transfer for triaL 6. In order to prove the guilt of the appellant/accused prosecution examined as many as 10 witnesses. Accused was examined under Section 313 of the Code in which he denied the circumstances appearing against him and claimed innocency and false implication in crime in questicm. 7. After providiag, an opportunity of hearing to tfae counsel for ftie parties and penising fhe evidence adduced by them leamed Additional Sessions Judge has convicted and sentenced the accused/appellaat as aforementioned. 8. Leamed counsel for the appellant Mr. Sudhir Verma, and leamed G.A. for the State/respondent Mr. Arun Sao are heard and perused fhe material available on record including ftiejudgment impugaed. 9. Leamed counsel for the appellant vehemently argued that in the present case accused has convicted for murder of two persons in two different session trial Nos. i.e. 175/03 and 176/03 for murder of Mehattar and Sukariya Bai on fhe basis pf evidence of PW1 Caitram, PW2 Panuram and son of deceased Mehattar PW8 Veersmgh. 10. As per case of the prosecution appeUant has made extrajudicial confession before PW1 Chaitram and PW2 Panuram but as per Para-3 of fhe cross examination of PW1 Chaitram he has clearty stated that appeflant has not made any statement before him which siiffice fhe factum of extrajudicial confession made before hun. 11. As regard the extrajudicial confession made before fhe PW2 Panuram is concemed. In para-1 of hls statement Paniiram has deposed that appellant has made extrajudicial cortfession before him. In para-3 he has admitted that no Panchayat was convened before reaching of police at his village but again he has deposed in Para-8 of his cross examination fhat Panchayat was convened thereafter police came it shows fhat he had frequently change his version and his statement does not inspire confidence. Likewise, son of deceased Mehattar PW8 Veersin^i has only stated ftiat appellant has taken bow and arrow for kllling the animal, which is notrelevant for this case. 12. Leamed counsel for the appellant placed reliance in fhe matter of State of Chhattlsaarh v. Brtteat1 in which this Court has held fhat confession made to Police Officer is not admissible in evidence. Recovery of the ardcle which was known to eveiyone is not admissible under Section 27 offhe Evidence Act. 13. On fhe other hand leamed counsel for fhe State/respondent opposed the appeal and submits that conviction of the appellant is based on extrajudidal confession made by appellant before PW1 Caitram & PW2 Panuram. He has voluntarily given extrajudidal confession which is admissible in evidence. Evidence of PW8 Veersingh is relevant evidence and corroborative evidence for this case. He has taken bow and arrow from the house of deceased Mehattar and has caused murder of Mehattar by arrow. '2004 (1) M.P.H.T. 42 (C.O.) 14. In order to appreciate the ai^uments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 15. In the present case homicidal deafh as a result of fatal tnjury foiind over ftie body of deceased Mehattar has not been substantially disputed on beh^lf of fhe appellant on the ofher hand, ofherwise also established by fhe evidence of PW3 fDr. V.P. Jaiswal and aiitopsy report Ex. P-8 which reveal fhe fatal injuiy found over ^ the chest of the deceased Mehattar and death was homicidal m nature. 16. As regard fhe compUcity of appeUant in crime in question, conviction of the appeUant is based on extrajudicial confession made by the appellant and corroborative circumstances thatjust after causing fhe death of Mehattar he has taken bow and arrow from the house of Mehattar. As per evidence of PW1 Caitmm present appellant made extrajudicial confession to him that he has committed murder of his wife Sukariya Bai and other person Mehattar but in Para-3 of his cross examination he has deposed that present appellant has not made any confessional statement or any statement before him relating to commission of murder of any person therefore, ftie evidence of PW1 Caitram is not -'rf ^-. ^^.;? relevant relating to confessional statement made by fhe appellant. 17. As per evidence of PW2 Panuram he has deposed in his evidence that appellant made confessional statement before him and elder persons of fhe village fhat he has killed Sukariya Bai and also to Mehattar in forest by axe, bow and arrow. In Para -3 of his cross examination he has deposed that before coming of Police meeting was not convened and he was not present any meeting but m Para-8 of his cross examination he has specifically deposed that at moming time Panchayat was convened hunself, Cheti^m and Bichhi Baiga and other persons were present in that Panchayat. Present appellant has made confession beforc them that he has kiUed Sukariya Bai and Mehattar. Defence has agam cross examined this witness. In Para-9 of his cross exammation he has specifically admitted fhat appellant has made confession before hun in Panchayat fhat he has killed Sukariya Bai and Mehattar. Virtually fhis witness has not changed hls version but has explained the statement in detail. As per his evidenee present appellant has made extrajudicial confession before him that he has killed Sukariya Bai and Mehattar. 18. While dealing with the evidentiaiy value of extra- judicial confession made under Section 24 of the /,'^ Evidence Act, fhe Apex Court in fhe matter of Beddeu Sirwh v. Stdte ofPunfabS has held fhat extTa-judicial confession is generaHy of weak type of evidence. No conviction ordinarily can be based solely fhereupon iinless same is corroborated in material particulars. 19. While dealing wifh the same question, fhe Apex Court in fhe matter of Mofect Asad (% Samin v. Stecte of West Benaal3 has held fhat if extra-judicial confession made voluntarily and trufh 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 ofthe saidjudgment reads as under- "22. An extea-judk^ial confessioii, if voluntaxy aad true and made m a fit state of miad, can be reUed upon by fhe court. The coiifession witl have to be proved like aay ofher fact. The value of fhe evidence as to coxifession, like aay other evidence^ depends upon the veracity of titie witaess to whom it has been made. The value of the evidence as to fhe confession depends on fhe reUabiLily of fhe witness who gives fhe evidence, It is not open to any court to start wifh a presumption ftiat extra-judicial confession is a weak type of evidence, It would depend on fhe nature of the circumslances, fhe time when fhe confessiou was xnade and fhe credibilily of -<. 22009 AIR SCW 3730 32009 AIR SCW 752 10 ^g3^f =1 20. fhe witaesses who speak to such a confession, Such a coxifession can be rcUed upon fhe conviction can be founded fhereon iffhe evidence about fhe coxifession comes from fhe mouth of witoesses who appear to be unbiased, not even reniotefy iaimical to fhe accused, and in respect of whom nothiag is brought out which may tend to iadicate that he may have a motive of attributing an untrufhful statement to the accused, fhe words spoken to by fhe witaess are clear, unaoib^uous aad uninistakabty convey that fhe accused is fhe perpetrator of fhe crime aad nofhiag is oniitted by fhe witoaess wfaich may miUtate a^ainst it, After subjecting the evidence of the witaess to a rigorous test on fhe touchstone of credibility, fhe extra-judicial confession caoi be accepted aad caa be the basis of conviction if it passes fhe test of crcdibiUty". PW8 Veersingh has deposed in his evidence that just before fhe commission of murder of Mehattar present appellaat had come to his house and demanded bow and arrow. In his cross examination he has specifically deposed fhat he has heard the sound of appellant which he recognized well and present appeUant has taken bow and arrow which has used commission of murder of Mehattar, it is relevant facts in case of murder oftwo persons. 11 -^s" 21. In the present case, conviction is substantiaUy based on evidence of PW2 Panuram before whom appellant has made extrajudicial confession. As held in case pf Steete of Chhattisgarh (Stwre^ confession made to police is not admissible and fhe facts known everybody cannot be discovered under Section 27 of the Evidence Act. In fhe present case nothing has been discovered under Section 27 of ftie Evidence Act which was known to everyone and Court below has not relied confession made by the appellaat to the Police but has relied extrajudicial confession made by the appeUant to PW2 Panuram. 22. After appreciating fhe evidence avaUable on record leamed Additional Sessions Judge (F.T.C.) Kawardha has convicted and sentenced the appellant as aforementioned. Conviction of the appellant is based on legal and clmching evidence of extrajudidal confession made by appellant to PW2 Panuram. Leamed Additional Sessions Judge (F.T.C.) Kawardha has not committed any illegality in convicting and sentencing the appellant for commission of murder of his uncle Mehattar, we do not find any illegalily in ftie conviction and sentence of fhe appeUant. Criminal appeal is devoid of merits. Consequentiy, criminal appeal is liable to be dismissed and is hereby dismissed. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge ^