c HIGH COURT OF CHHATTISGARH. BILASPUR APPELLANT: RESPONDENT: Criminal Appeal No.280 of 2004 Beduk Satnami S/o Itwari Satnami Age 35 years, R/o Village Beltara P.S. Khamahria Distt. Durg. Versus State of Chhattisgarh Jhrough P.S. KhamahriaDistt.Durg. {Criminalappeal underSection 374 (2) ofthe Code ofCriminal Procedure} Present: Mr. Vimlesh Bajpai, counselfor the appellant. Mr. S.RJ. Jaiswal, Panel Lawyer for the State/respondent. Division Bench: - Hon'ble Mr. T.P. Sharma and Hon'ble Mr. R.L. Jhanwar. JJ ORALJUDGMENT (11-1-2011) T.P. Sharma. J: - 1. Challenge in this appeal is to the judgment of conviction &order of sentence dated 27-12-2003 passed by the Additional Sessions Judge, Bemetara in Sessions Trial No.186/2003, whereby & whereunder learnedAdditional Sessrons Judge after holding the appellant guilty for commission of culpable homicide amounting to murderof his wife Smt. Anjori Bai, convicted the appellant under Section302 of the IPC and sentenced him to undergo imprisonment for life & pay fine of Rs.300/-, in default of payment of fine to further undergo Rl for two months. 2. Conviction is impugned on the ground that withoutanyiota of evidence, the trial Court has convicted & sentenced the appellant, and thereby committed illegality. 3. As percase ofthe prosecution, on the fateful day of 17-7-2003 between 7 a.m. and 8 a.m. the appellant was present in his house, he assaulted his wife by axe and caused her instantaneous death, thereafter, he went nearthehouse of Kulpat (PW-3) where his son Kirtan was working and made extra judicial confession before his son Kirtan and Kulpat (PW-3) and thereafter, he went to Police Station Khamariya for lodging report. rJ c When theincident came to the knowledge of other villagers including Kotwar Buddhudas (PW-1), Buddhudas (PW-1) went to the Police Station for lodging FIR where the appellant was already present. Buddhudas (PW-1) lodged FIR vide Ex.P-1 and merg vide Ex.P-2. The Investigating Officer left forthe scene of occurrence and after summoning the witnesses vide Ex.P-8, prepared inquest over the dead body of the deceased, vide Ex.P-9. Dead body was sent forautopsy to Government Hospital, Khamariya vide Ex.P-16. Dr. Mrs. Sarita Minj (PW-11) conducted autopsy vide Ex.P-16 and found following injuries: - (1) Incised wound 4c.m. x 1 c.m. x1 c.m. in size over left occipital reglon. (2) Incised wound4 c.m.x 1 c.m.x 1.5 c.m. in size over left maxilla. (3) Incised wound 3 c.m. x 1 c.m. x deep up to bone situated above injury No.2. (4) Incised wound 3 c.m. x 1 c.m. x 1 c.m. in size, 1 c.m. below injury No.2. (5) Incised wound2.5 c.m. x 1 c.m. x 1 c.m. in size over lateral aspect of left eyebrow. (6) Incised wound 3 c.m.x 1 c.m. x 1 c.m. in size, 1 c.m. below injury No.5. (7) Incised wound 3 c.m. x 1 c.m. x 1.5 c.m.in size over left side of chin. (8)lncised wound 3 c.rp. x 1 c.m, x1 c.m. in size over right side of chin. (9) Incised wound 1 c.m. x 1 c.m. x 0.5 c.m. in size above injury No.8. (10) Incjsed wound 5 c.m.x 1 c.m. x 0.5 c.m. in size over leftsjde of neck. (11) Incised woundI.Sc.m.x 1 c.m. x 1 c.m. in size over right temporal region. (12) Lacerated wound 3 c.m. x2 c.m. x 1 c.m. insize over rightparietal region. (13) Lacerated wound 4 c.m. x 2 c.m. x 1.5 c.m. in size over right parietal region, 2 c.rrt. above injury No.12. (14) Incised wound 2.5c.m. x 2 c.m. x 2 c.m. in sizeover superior aspect of right shoulder. (15) Incised wound 1.5 c.m. x1 c.m.x 1 c.m. in size on superior aspect of right shoulder, 3 c.m. aboveinjury No.14. •i + v y :{'t^'^ (16) Incised wound 1 c.m. x 1 c.m. x 1.5 c.m. in size over lateralend of right clavicle. (17) Incised wound 1.5c.m. x 1 c.m.x 1 c.m. in sizeover lateral surface of right arm. (18) Contusion 10 c.m.x 6 c.m.ip size over right infraelavicular region ofchest. Fracture of right parietal bone, right temporal bone, mandible over chin and left occipital bone was found. Cause of death was fracture of skull, mode of death was coma and shock. Spot map was prepared by the police vide Ex. P-5. Patwari also prepared spot map vide Ex. P-3. Sealed clothes of the deceased were seized vide Ex.P-6. Blood stained and plain soil were recovered from the spot vide Ex.P-12. Bloodstained clothes of the appellant and blood stained axe were seized from the appellant vide Ex.P-19. Seized articles were sent for chemical examination vide Ex.P-21 and presence of blood wasconfirmed on axe and clothes recovered from the appellant, vide Ex.P-24. 4. Statements of the witnesSes were recorded under Section 161 of the Cr.P.C.. After completion of investigation,charge sheet was filed before the Courtof Judicial Magistrate First Class, Bemetara who committed the case to the Court of Sessions, Durg where learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the accused, the prosecution has examined as many as fourteen witnesses. The accused was examined under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him, pleadedinnocence and false implication inthe crime in question. . 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellant as aforementioned. 7. We have heard learnedcounsel for the parties, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellant vehemently argued that in the present case, conviction ofthe accused is substantially based on the evidence of Kulpat (PW-3) before whom the appellant has made the alleged extra judicialconfession, except Kulpat (PW-3) no witness has supportedcase of the prosecution, evidence of Kulpat (PW-3) does not inspire 4. ^' :c confidence, it is not trustworthy and is notsafe to rely in absence of any corroboration fromindependent sources. Even otherwise, evidence of Kulpat (PW-3) is not reliable for convicting the appellant under Section 302 of the IPC. Learned counsel further submits that the appellant was not present in the house at the time ofcommissionof suchoffence, he has gone to the field for searching his cow and when he came toknow the fact of commission of homicidal death of his wife, he himself has gone to the police station for lodging report, but instead of registering FIR athis instance, the police has made him accused. 9, On the other hand, learned State counsel opposed the appeal and submitted that the evidence of Kulpat (PW-3)itself is sufficient for drawing inference that the appellant has committed the offence punishable under Section 302 ofthe IPC. 10.1n ordertoappreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf ofthe prosecution. 11.1n the present case, homicidal death ofthe deceased as a result of fatal injuries, as manyas 18 injuries overher body, has not beensubstantially disputed on behalf of the appellant, otherwise also same is established by the evidence of Dr. Mrs. Sarita Minj (PW-11) and autopsy report Ex.P- 16 that death ofthe decea^ed was homicidal in nature. 12.As regards complicity of the appellant in the crime inquestion, conviction of the appellant is substantially based on the evidence of Kulpat (PW-3) before whom the appellant hasmade extra judicial confession. As per the evidence of Kulpat (PW-3),on the fateful day he was present near his barn along with son of the appellant who used to work in his house/ barn, the appellant came and gave key of house to his son Kirtan (PW-9) and made extra judicial confession that he has killed mother of Kirtan, and thereafter, theappellant & Kirtan left the spot. Defence has cross- examined this witness in detail, but has not been able to elicit anything in hiscross-examination to discredit his testimony, especially relating to extra judicial confessionmade to him. 13.Presence of the appellant at the timeof incident and the fact that the appellant has not gone for searching cow find support from para 7 of cross-examination of Buddhudas (PW-1). When Buddhudas (PW-1) went to the police station, the appellant himself was present there, though he has not lodged any report. The incident took place at early r^ morning. The appellant has taken specific defence that he had gone for searching cow, but he has not examined any witness in support of his defence. This suggestion has been denied by Buddhudas (PW-1). The appellant himself has gone to the police station but has not lodged any report. These evidences are also corroborative evidences in support of the evidence of Kulpat (PW-3). 14.Extra judicial confession isalso evidence and if it is proved to be true same may besufficient for warranting conviction. While dealing with the evidentiary value of extra-judicial confession made under Sectjon 24 of the Evidence Act, the Supreme Court in the matter of Baldev Singh v. State of Punjab has held that extra-judicial confession is generally a weak type of evidence. No conviction ordinarily can be based solely thereupon unless same is corroborated in material particulars. 15.While dealing withsame question, the Supreme Court: in the matter of Mohd. Azad @ Samin v. State ofWest Bengal has held that if extFa- judicial confession is madevoluntarily and truly in a fit state ofmind then it can be relied upon and confession will have to be proved like in any other evidence. Para 22 of the 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 valueof the evidence as to the confessiondepends on the reliability of the witness who gives the evidence. It is not open to any court to start with apresumption that extra-judicial confession isa weak type of evidence. It would depend on the nature ofthe 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 andnothing is omitted by the witness which may militateagainst it. After subjecting the evidence of the witness to a rigorous test on the 12009 AIRSCW 3730 22009AIRSCW752 Soma touchstone of credibility, the extra-judicial confession, can beaccepted and can be the basis of conviction ifit passes the testof credibility" 16.The Supreme Court in the matterof Shiva KaramPayaswami Tewar v. State of Maharashtra3 has held that statement may be oral or written, the admission of guilt wouldamount to a confession whether it is communicated to another or not. 17.While dealing with same question, the Supreme Cpurt in the matter of State of Punjab v. Harjagdev Singh has held that every inducement, threat or promise doesnot 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. 18.After appreciating the evidence available on record, learned Additional Sessions Judge has convicted the appellant under Section 302 of the IPC and sentenced him in theaforesaid manner. 19.Considering the nature of injuries and evidence of Kulpat (PW-3) corroborated by independent sources, we do not find any illegality inthe judgment impugned. 20. For the foregoing reasons,'theappeal is devoid ofmerit, same is liableto be dismissed and it is hereby dismissed. ^ Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge 32009AIRSCW1226 42009AIRSCW4133