HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No.650 of 2005 APPELLANTS: 1. Bhauram @ Shivdayal aged 55 years, S/o (In Jail since 14.11.03) \ Ram Lal Kashyap. 2. Balram @ Bhurwa Kashyap aged 21 years, S/o Tirithram 3. Shantilal, S/o Bhauram @ Shivdayal, aged . 21 years. All are R/o village Khaira, Police Station Pamgarh, District Janjgir-Champa (C.G.) RESPONDENT: Veirsus State of Chhattisgarh, Through Police Station Pamgarh, District Janjgir-Champa {Criminal appeal under Section 374 (2) of Criminal Procedure Code} Present: Mr. C.R. Sahu with Mr. Gurudev I. Sharan, counsel for the appellants. Mr. D.K. Gwalre, Govt. Advocate for the State/respondent. Division Bench: - Hon'ble Mr. T.P. Sharma and Hon'ble hflr. R.N. Chandrakar, JJ JUDGMENT (30-11-2011) T.P. Sharma. J: - 1. Challenge in this appeal is to the judgment of conviction and- order of sentence dated 29-7-2005 passed by the 3 Additional Sessions Judge (FTC), Janjgir, in Sessions Trial No.51/2004, whereby and whereunder the Additional Sessions Judge after holding the appellants guilty for commission of culpable homicide amounting to murder of four persons namely Mohan, Darasram, Rathbai & Guddu @ Laxminarayan and for causing injury by sharp edged weapon in sharing common intention to Jagram, convicted the appellants under Sections 302', 302, 302, 302 & 323 read with Section 34 of the IPC and sentenced each of them to undergo imprisonment for life & pay fine of Rs.200/-, in default of payment of fine to further undergo Rl for one month; imprisonment for life & pay fine of Rs.200/-, in default of payment of fine to further undergo Rl for one month; imprisonment for life & pay fine of Rs.200/-, in default of <>"" ...J, ^•.svssi^ payment offine to further undergo Rl for one month; imprisonment for life & pay fine of Rs.200/-, in default of payment of fine to further undergo Rl for one month; and Rl for one year & pay fine of Rs.100/-, in default of payment of fine to further undergo Rl for fifteen days, respectively. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellants, and thereby committed illegality. 3. As per case of the prosecution, 12 of November, 2003 was black day for unfortunate deceased Mohan, Darasram, Rathbai & Guddu @ Laxminarayan when at about 2.^0 p.m. while they were collecting paddy crop in field at Village Khaira for bringing the same to their barn along with injured Jagram Kashyap (PW-8) & Satyanarayan Kashyap (PW-6) - son of deceased Darasram, Janki Bai (PW-7) - daughter-in-law of deceased Darasram & Santosh Kurmi (PW-9) - son of deceased Mohan, accused/appellants Bhauram @ Shivdayal, Balram @ Bhurwa Kashyap, Shantilal, Harish Chand, & one Sheetal came to the field. Appellant Bhauram was holding Chimta & Trishul, appellant Shantilal was holding stick, Sheetal & Balram were holding axe and Harish Chand was holding stick attached with rope like hunter (korra). They shouted 'maro maro'. Appellant Bhauram was leading the troop of accused/appellants. They firstly assaulted Mohan, then other deceased and witnesses tried to flee from the spot on which they assaulted Rathbai & Darasram and lastly they assaulted Guddu @ Laxminarayan, and caused their instantaneous death. They also chased Jagram and assaulted him by stick & axe. Some how, Satyanarayan Kashyap (PW-6), Janki Bai (PW-7), Jagram Kashyap (PW-8) & Santosh Kurmi (PW-9) succeeded in fleeing from the spot and they saved their lives. 4. After incident, the accused/appellants went to the village and made extra judicial confession within the hearings of villagers namely Amritlal Kaushik (PW-2), Mahajan Kashyap (PW-3), Malech Ram (PW-4), Komal Kashyap (PW-5) & Hari Prasad Mishra (PW-10) that they have committed murder of four persons namely Mohan, Darasram, Rathbai & Guddu @ Laxminarayan. 5. Satyanarayan Kashyap (PW-6) immediately went to Police Station Pamgarh, 20 Kms. away from the .place of incident and lodged FIR at ;^'Bis& 'S '"'"^j ^ •"<s^ 4.45 p.m. vide Ex.P-11. Morgues were recorded vide Exs.P-12 to P-15. Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Exs.P-2 to P-5, prepared inquests over the dead bodies of the dec^ased persons vide Exs.P-6 to P-9. Spot map was prepared vide Ex.P-16. Patwari prepared spot map vide Ex.P-17. Pair of chappal, cycle seat, terry cotton lungi, bundle of paddy, one cycle with bag, another Avon cycle, one Titan wrist watch, one bag containing broken coconuts, eight pieces of sickle, one steel glass and one gudaku tin were seized from the spot vide Ex.P-26. One bundle of rope, rice bread, shawl and bundle of paddy were seized from the spot vide Ex.P- tl' 27. Bundle of paddy was ..seized from the spot vide Ex.P-28. Bloodstained and plain soil WCFC recovered from the spot where dead bodies of deceased persons were found vide Exs.P-29 to P-32. 6. Dead body of Darasram was sent for autopsy to Primary Health Centre, Pamgarh vide Ex. P-45. Dr. Narayan Prasad (PW-23) conducted autopsy vide Ex. P-46 and found following injuries: - (1) Lacerated wound of 3 c.m. x 4 c.m. over right leg. (2) Lacerated wound of 3 c.m. x 5 c.m. over left leg. (3) Lacerated wound with fracture of right mandible. (4) Fracture with lacerated wound of 3 c.m. x 3 c.m. of parietal bone. (5) Trachea was cut. (6)Vessels of neck were cut. (7)Active bleeding from the vessels. Mode of death was shock and death was homicidal in nature. 7. Dead body of Rathbai was sent for autopsy to Primary Health Centre, Pamgarh vide Ex. P-47. Dr. Narayan Prasad (PW-23) conducted autopsy vide Ex. P-48 and found following injuries: - (1) Incised wound over base of right mandible of 2" x 1/2" x 1". (2) Neck chopped from trunk. (3) Incised wound over sterno mastoid region. (4) Incised wound on left side of sterno mastoid of 2" x 1" x %". (5) Incised wound over right parietal region of 1 Vi' x % c.m. x % c.m. (6) Lacerated wouhd over right forearm of 2 c.m. x % c.m. x % c.m.. (7) Fracture of humerus of right hand. (8) Fracture of tibia & fibula of left leg. l!!"! Mode of death was syncope and death was homicidal in nature. Dead body of Laxminarayan was sent for autopsy to the Primary Health Centre, Pamgarh vide Ex.P-49. Dr. Narayan Prasad (PW-23) conducted autopsy vide Ex. P-50 anct'found following injuries: - (1) Neck was chopped from trunk and only connected with skin. (2) Multiple abrasions over injured part of neck. (3) Trachea, esophagus, blood vessels and internal parts of neck were cut. Mode of death was shock and death was homicidal in nature. ".I- ,.fc 9. Dead body of Mohan was sent 'for autopsy to the Primary Health Centre, Pamgarh. Dr. K.K. Thawait (PW-27) conducted autopsy vide Ex.P-57 and found following injuries: - (1) Incised wound over back of neckof4" x 1 c.m. x 1 c.m. (2) Incised wound of 3" x 1" x 1" over right side of head. (3) Incised wound over back of head of 5" x 1" x 14" Mode of death was shock and death was homicidat in nature. lO.lnjured Jagram (PW-8) was also sentfor medical examination to Primary Health Centre, Pamgarh vide Ex. P-53. He was examined by Dr. R.D. Gupta (PW-24) vide Ex.P-54 and one linear incised wound of 6 c.m. over scapular region was found on his person. 11.During course of investigation, appellant Bhauram was taken into custody, he made discloser statement of Chimta & Trishul vide Ex.P-18 and same were recovered at his instance vide Ex.P-19. Accused Sheetal, aged 16 years, made discloser statement of axe vide Ex.P-20 and same was recovered at his instance vide Ex.P-21. Appellant Shantilal made discloser statement of stick vide Ex.P-22 and same was recovered at his instance vi.^ie Ex.P-23. Appellant Balram made discloser statement of axe vide Ex.P-24 and same was recovered at his instance vide Ex.P-25. 12.Bloodstained shirt was seized from appellant Shantilal vide Ex.P-36. Bloodstained clothes were seized from accused Sheetal vide Ex. P-37. Bloodstained clothes were seized from appellant Bhauram vide Ex.P-38. Sealed clothes of the deceased persons were seized vide Exs.P-40 & P- 41. Photographs were taken vide Articles A-1 to A-24. Seized articles •"^ B' were sent for chemical examination vide Ex.P-59. Presence of blood over articles & clothes seized from the accused/appellants was confirmed vide Ex.P-60. 13.Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court of Chief Judicial Magistrate, Janjgir who committed the case to the Court of Sessions, Bilaspur from where the Additional Sessions Judge received the case on transfer for trial. 14.1n order to prove the guilt of the accused persons, the prosecution has examined as many as twerity-nine witnesses. The accused were examined under Section 313 of the CrPC in which they denied the circumstances appearing against them, pleaded innocence and false implication in the crime in question. iS.After providing opportunity of hearing to the parties, the Additional Sessions Judge while acquitting one accused Harish Chand, convicted and sentenced the appellants as aforementioned. Accused Sheetal was juvenile offender and charge sheet against him has been filed before the Juvenile Justice Board. 16.We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 17.Learned counsel for the appellantsVehemently argued that conviction is based on evidence of inimical, interested and relative witnesses, their evidence does not inspire confidence and is not trustworthy. Although evidenceof relative witnesses cannot be discarded and the Court is required to scrutinize their evidence minutely, the prosecution has not examined independent witnesses to unfold the real story. Enmity between the deceased party and the appellants is not disputed. On the v^ ground of enmity and on account of land dispute the appellants have been falsely implicated in the crime in question. 18.0n the other hand, learned State 'counsel opposed the appeal and submitted that this is a case of brutal murder of four persons and injury to fifth person. The accused persons have committed brutal murder offour persons at the field, they gathered, armed with weapons and went to the field where the deceased persons and their relatives were collecting crop for bringing the same to their barn, they shouted 'maro maro" and had \ ^, brutally assaulted the deceased persons after chasing them which shows their common intention and grave intention of committing murder. The Court has taken liberal view in sentencing the appellants. This is a fit case for capital sentence ^and the trial Court has rightly convicted the appellants. 19.1n order to appreciate the arguments advanced on behalf of the parties, we haveexamined the evidence adduced on behalf of the prosecution. 20.1n the present case, homicidal death of deceased Mohan, Darasram, Rathbai & Guddu @ Laxminarayan as a result of fatal injuries found over their bodies has not been su^istantially disputed on behalf of the appellants. Likewise, simple injury found over the body of Jagram (PW- 8) has also not been substantially disputed on behalf of the appellants. On the other hand, it is established by evidence of Dr. Narayan Prasad (PW-23), autopsy reports Exs.P-46, P-48 & P-50, evidence of Dr. K.K. Thawait (PW-27), autopsy report Ex.P-57, evidence of Dr. R.D. Gupta (PW-24) and medical e?camination report Ex. P-54 that death of the deceased persons was homicidal in nature and that the injury found over the body of Jagram (PW-8) was simple. 21.As regards complicity of the appellants in the crime in question, conviction is substantially based on evidence of eyewitnesses Satyanarayan Kashyap (PW-6), Janki Bai (PW-7), Jagram Kashyap (PW-8) & Santosh Kurmi (PW-9). All witnesses are relatives of the deceased persons. As per their evidence, they were present on the spot and they were collecting crop along with the deceased persons. 22.As per evidence of Satyanarayan Kashyap (PW-6), accused Bhauram, Shantilal, Harish Chand & Balram along with one Sheetal came to the field. Bhauram was holding Trishul, Harish Chand & Shantilal were holding betel axe & stick and Bqjram was holding axe. They shouted 'maro maro, kato kato'. Firstly, they assaulted Mohan, thereafter they assaulted Rath Bai, then they assaulted Darasram who w-as fleeing from the spot and then they assaulted Laxminarayan. They also assaulted Jagram (PW-8) - injured witness who has substantially corroborated the evidence of Satyanarayan Kashyap (PW-6). Janki Bai (PW-7), Jagram Kashyap (PW-8) & Santosh Kurmi (PW-9) have also corroborated the evidence of Satyanarayan Kashyap (PW-6). Satyanarayan Kashyap s.S'.t^ 'lll!'!, (PW-6) has lodged FIR vide Ex.P-11 and morgues vide Exs.P-12 to P-15 within two hours fifteen minutes of the incident at Police Station Pamgarh which is 20 Kms. away from the place of incident. 23.The prosecution has also^examined Ashok Kumar Chauhan (PW-1), Amritlal Kaushik (PW-2), Mahajan Kashyap (PW-3), Malech Ram (PW- 4), Komal Kashyap (PW-5) & Hari Prasad Mishra (PW-10) who have deposed that they were present in the village, appellant Bhauram along with other accused persons came to the village and loudly told to villagers that they have committed murder of four persons. Bhauram was holding Chimta and Sheetaj' was holding stick. On being asked, they named four deceased persons and told that they have committed murder of these four deceased persons in the field on which the villagers rushed to the spot where they saw the dead bodies of said four persons. 24.Defence has cross-examined Mahajan Kashyap (PW-3), Malech Ram (PW-4), Komal Kashyap (PW-5) & Hari Prasad Mishra (PW-10) at length, but has not been able to elicit anything in their cross-examination to discredit their testimony that appellant Bhauram has not made extra judicial confession before them that they have committed murder of aforesaid four persons and that the appellants were not present at the time of such extra judicial confession made by Bhauram. Evidence of these witnesses is sufficient to prove the fact that appellant Bhauram has made extra judicial confession relating to commission of murder of Mohan, Darasram, Rathbai & Guddu @ Laxminarayan. Although appellant Bhauram has not specifically made confession before any person, but all aforesaid witnesses have heard the extra judicial confession made by appellant Bhauram. 25.While dealing with propriety and evidentiary vatue of extra judicial confession made by accused within the hearings of other persons, the Supreme Court in the matter of Saldev Singh v. State of Punjab has held that extra-judicial confession is generally of weak type of evidence. No conviction ordinarily can be based' solely thereupon unless same is corroborated in material particulars. -1 2009 AIR SCW 3730 CE ": ^'.•J??R^iS 'i^;i:p-,^ •~-Si<ffs" 26.While dealing with same question, the Supreme Court in the matter of Mohd. Azad @ Samin v. State of West Bengal has held that if extra- judicial confession made voluntarily and truly in a fit state of mind then it can be relied upon and confession will have to be proved like in any other evidence. Para 22 ofthe said judgment reads as under:- "22. An extra-judicial confession, if voluntary and true and made in a fit'state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. - The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the wjtness who gives the evidence. It is not open to any coi-irt to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon the conviction can be founded thereon if the evidence about the confession comes from the mouth of 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 of attributing an untruthful statement to the accused, the words 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. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of conviction if it passes the test of credibility." 27.The Supreme Court in the matter of Shiva Karam Payaswami Tewar v. State of Maharashtra has held that statement may be oral or written, the admission of guilt would amount to a confession whether it is communicated to another or not. 28.While dealing with same question, the Supreme Court in the matter of State of Punjab v. Harjagdev Singh has held that every inducement, threator promise does not vitiate a confession. Normally extra-judicial confession is a weak type of evidence and shall not be relied upon without further corroboration from other sources. 22009AIRSCW752 32009AIRSCW1226 42009AIRSCW4133 f', v '•\': y ^.^ ./«' 29. Extra judicial confession is also a kind of evidence and once it is proved to be true, same may be sufficient for conviction of accused persons. 30. Defence has also cross-examined Satyanarayan Kashyap (PW-6). Janki \ Bai (PW-7), Jagram Kashyap (PW-8) & Santosh Kurmi (PW-9) at length, but there are some trifle contradictions and omissions. However, substantially, they have deposed that these all accused persons have brutally committed murderjsf aforesaid four persons in their field. They are relative witnesses. Enmity between the parties is also not disputed. Enmity is a double-edged weapon and may be used for false implication or for commission of offence. @n the ground of relationship, evidence of witnesses cannot be discarded. Even otherwise, relatives are the last persons to spare the real culprits and implicate falsely the innocenf persons. 3l.While dealing with evidentiary value of inimical, interested and relative witnesses, the Supreme Court in the matters of Dalip Singh and others v. The State of Punjab , Ashok Kumar Chaudhary & Ors. v. State of Bihar , Hari v. State of Maharashtra and Mohabbat and Ors. v. State of M.P. has held that statements of relative witnesses cannot be discarded only on the ground of their relationship. The Courts are required to scrutinize their evidence with great care and caution. 32.Presence of aforesaid witnesses in the field for collecfing crop along with their relatives was not unnatural. As per their evidence, the appellants came along with weapons, they shouted, chased, assaulted and caused death of the deceased persons. Their detailed evidence corroborated by evidence of each other, extra judicial confession made by appellant Bhauram, promptly lodged FIR Ex.P-11 and morgues Exs.P-12 to P-15 inspire confidence, they are trustworthy and safe to rely upon. There is discrepancy relating to weapc^p used by each of the appellants, but the fact remains that all appellants gathered and proceeded to the spot, they chased the deceased persons and caused homicidal death. This shows their active participation in commissioFi of offence. They were holding deadly weapons and they used deadly weapons which is sufficient to establish that all the accused persons were having knowledge of their 5AIR1953SC364 6 2008 AIR SCW 3739 72009AIRSCW2250 8 2009 AIR SCW 1486 Soma 10 intention and in furtherance of their common intention they have committed murder of four persons. 33.After appreciating evidence available on record, the Additional Sessions Judge has convicted ^ sentenced the appellants under Sections 302, 302, 302 & 302 of the IPC for committing murder of four deceased persons and also under Section 324 read with Section 34 of the IPC for causing simply injury by sharp edged weapon to Jagram (PW-8). Conviction & sentences imposed upon the appellants are based on credible, clinching and reliable evidence sustainable under the law. 34. On close scrutiny of evidenp^, we do not find any illegality or infirmity in the judgment of conviction and order of sentence requiring any interference. 35.This is a case of brutal murder of four persons and it was a black day for the aforesaid four persons. The appellants are lucky enough because they have not been sentenced to capital punishment. With this observation, the appeal being devoid of merit, is liable to be dismissed and it,is hereby dismissed. —— - -— — SdA T.P. Sha'rnia Judee Sd/- R.N. Chandrakar Judge