F^B 'cs-^ IN THE HIGH COURT OF 1UDICATURE AT BILASPUR (C.GA Cr. Appeal No. /2004 ( APPELLANT IN ]AIL \^\ •*^•^- lil o? • ^tf' ..^••" -.e^--;" ..-• ^•'•^•s^'^oc^6 ^~~" .^° >®.t^ -^^ NON-APPL1CANT : Lakhan Basor, S/o. Lolo Basor, aged about 36 years, Occupation Agriculture R/o. Village Salka, P.S. Baikunthpur, Distt. Koriya (C.G.).' VERSUS State of Chhattisgarh, Through P.S. Baikunthpur, District Koriya (C.G.). CRIMINAL APPEAL UNDER SECTION 374 (2) OF Cr.P.C. 1973 lll.-_.^- v •?- HI6H COURT OF CHHATTtSSARH AT BILASPUR Cr. Awea^ No.438/2004 Lakhan Basor Vs. State of Chhattisgarh Post for Orders : '5.07.2006 Sd/- Dilip Raosaheb Deshmukh Judge .=&. •~J|Lt_ ^- HI6H COURT OF CHHATHSSARH AT BILASPUR tefore: Hon'bie Shri Justice Diiip Raosaheb Deshmukh j.^t.^^a^y Lakhcn Basor State of Chhattisgarh Shri A.K-Shukio, Counsei for the appeliant. Shri Arun Sao, Sovernment Advocate for the State. JUD6MENT (Delivered on this ^day of July 2Q06) This appeal is directed against the Judgnient dated 19-04-2( delivered by Shri A.K.Poithak, Learned Additional Sessions Judge, Baikunthpur, Korea in Sessions Trial No.09/2004 whereby the appeliant wos convicted under Section-304 Part-I of tiie IPC and was sentenced to rigorous imprisonment for 6 years and fine of Rs.2,000/- and in default of payment of fine to undergo additional rigorous imprisonment for 4 months. 2. It is not disputed that the deceased Baijanti Bai was the wife of the appellant. It is also not disputed by learned counsei for the appeilcnt durin9 the course of arguments that death of Bcijanti Bai on 09-11-2003 was homicidai in nature. The oppellant aiso admitted in his examination under Section-313of Cr.P.C. that he was examined on 10- 11-2003 by &r. Ashish Karan PW-6 who had found a iacerated wound on the back of head size 1x1/2 x muscle deep which was caused within 24 hours prior to examination. s,.»wW 3. Briefly stated the prosecution case is that on 09-11-2003 fne appellnnt had a quarrel with his wife Baijdnt! Bai inside the house during which Baijanti Bai assaulted the cypellant Lakhan Basor with.c brick on the head. Infuriated by this, the coDellant aiso assaulted Baijcmti Bai with a br-ick on the back portion of h^r hend as aiso on her stomach. Bcijanti Bai died on the spot. Supervisor PW-5 ond Banwari PW-11 along with Run Sai PW-1 father of the deceased redched the spot and saw Baijsnti Bai lymg dead. The appellant made an extra iudiciai confession before these witnesses of havino caused the death of Baijanti Bai by assaulting her by a brick. Merg intimation Ex.P-1 & F.I.R. Ex.P-2 was lodged by Run 5ai PW-1 at Police StatEon- Baikunthpur on 10-11-2003. br. Ashish Karan PW-6 conducted the autopsy on the dead body of Baijanti Bai on the same day at 4 P.A^. and found ons abrasion of l"xl/2" at the posterior hnlf of vertex left side. On dissection, haemotomc was found dt the posterior hclf of the vertex left side measurina 2 1/2" x 2" and another haemotoma was present above ond beneath the membrane. Spleen was ruptured. Wound was 4"x6" in size. Peritoneai cavity was fiiled with blood. It was opined that death of Baiionti Bai was due to hemorrhaoic shock due to rupture of spieen and coma due to head injury. 4. During investigation, on the memorandum of the appeliant, one brick was seized from under the Sanii Tree vide Ex.P-7 which had btood like stains. Blood stained soil and plain soil were seized from the spot vide Ex.P-8. Biood stained clothes of the deceased, blood stained soi! and plain soil and the brick having blood like stains were sent to the Forensic Sclence Laboratory, Raipur on 13-12-2003 for chemicQi examination. However, the reportof the Forensic Science Laboratory was not filed by the prosecution before the tria! Court. After .1-- compietion of investigation, the appellont was prosecuted for an offence under Section-302 of I.P.C. for which a charge was fr-amed against ths appelicmt who abjured the guilt, pleaded innocence esnd. ied no evidence En his defence. The prosecutionex.amined 12 witnesses. Rslying upon the testimony of Bonwari PW-11 relating to extra judicial confession mcde by the appellant and the fact of presence of the appeltant inside the house with an injury on his head, the iearned trial Jud9e convicted the appeilont under Section-304 part-I of 1+ie ZPC and sentenced him as sforesaici in para-1. (Supra) J -^f ;-r:;^I^R'-;"^>' 5. Shri A.K. Shukia, learned counsel for the dppellant whiie ; not disputing that death of Baijanti Bai inside her house on 09-11-2003 was homicida! contended that the prosecution has faited to establish that the appellant was the author of the crime. It was argued tiiat extra judicial confession by the dppeiiont having been made in the pr-esence of the Poiice was inadmissibie in evidence and could not form the bssis for convicting the oppellant. No other point was urged by the learned counsel for the appeliaint. On the othsr hand, Shr'i Arun Sao, learned (Sovernment Advocate for the State argued in support of the impugned judgment. 6. Having heard rivai contentions, I have perused the record of Sessions Trial No.09/2004. Conviction of •t+ie appellcnt rests on the testimony of Barswari PW-11 reiating to extro judicial confession made by the cppellant and the presence of the appetloait inside his house with an injury on the head. It is well settled by c catena of decisions of the Apex Court that extra judicial confession, if voiuntariiy, being not obtained by coercion, inducement or promise of favour can form the soie basls of conviction and corroboration wouid be required only '"S'iifc^^WI'^ .-^^'•^1", 5;-^^-.^— '• --•* .J- ..^••^•'s^. ^j?ii'~s^:'^^N% by way of abundant caution. In 6wa Sineh Vs. State of Ra.isrtian reported in [2001] 2 Supreme Couri' Ccses 205, it was held by the Apex Court as follows; Extra JudiciQl confession, if true and yoluntary, it con be relied upon by the Court to convict the accused for the commission of the cr'ime aiieged. Despite inherent weakness of extrajudicial confession as cn item of evidence, it cannot be ignored when shown thct such confession wss made before a person who hcs no reason to state false!y and to whom it is made in the circumstances which tend to support the statement. That the evidence in the form of ex't'rajudicial confession made by the accused to witnesses ccmnot be aiways termed to be tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If the Court belieyes the witness before whom the confession is made and is satisfied that the confession was true and votuntariiy made, then the conviction can be founded on such evidence aione. It is not open to 1+>®Court tryin9 the criminal case to start with a pr-esumption tiiat extrajudicia! confession is always a weak type of evldence. It wouid depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession. " 7. Scanning the tsstimony of Banwari PW-11 on the cbove touchstone, it is found that Banwari has c!early stated that immediately on learning from Munna 1+iat the appeliant had committed murder of Baijanti Bai, he had gone to the house of the appeilant with Run Sai PW-1, Kamli PW-4, Sopal PW-2 and Supervisor PW-5 where the appellcnt had confessed 1+iat he had caused the death of Baijanti iai by assaulting her with a brick since she aiso assaulted him with o. brlck. This testimony is wholly unrebuti-ed in cross exnminotion slnce no question in this regard was asked to this witness by the defence. The above testimony clearly shows that the extra judicia! confession .B/1 .,,,.,^,.^.?ti^|^i ^'•:^;:fii;'?:is?n;i?"::;'' was made by the appeilant in his house. These witnesses aiong with other villagers had gone there immediateiy on leaming about the occurrence on 09-11-2003 itself. Suoervisor PW-5 has also testified that on being informed by Run Sai PW-1 he had 9one to the house of the appeliant cmd had seen that Baijanti Bai was lying dead insiae the house and the appeiiont had an injury on the head and the appeilant had said that Baljanti Bai had assaulted him due t6 which he had sustained injury. Aithough, this witness does not say a word about the extra Judicial confession made by the appeltant yet his testimony that on reaching the house of the appeiiant he saw that the oppellaint had an injury on the head whlch was attributed by the nppeliant to ori assault made by Baijsinti Bai and dead body of Baijanti Bni was seen iying inside the house is whoily unrebutted. Kamli Bai PW-4 is another witness who went with her husband Run Sai PW-1 to see the dead body of Baijanti Bai in the house of the appeilant. She has testified that on visiting the house of the appellant she found that Baijonti Bai was !yin9 dead with an injury on the head and the dppellant was a!so sitting there. ,--i.L»-i.?!!a»!ti9 ^SsSVfiSy 8. So far as the testimony of Sunita PW-3 pelating to extrc confession made by the appeliant is concerned, it is wholly Inadmissible in evidence since according to her the appeilcnt had confessed his guiit upon asking of the police. The learned trial Judge has "ightly discarded 1+ie testimony of Sunita PW-3 from consideration on this ground. 9. The testimony of Dr". Ashish Karcn PW-6 and the autopsy report Ex.P.l which has been deatt with in paragraph 3 (suprc) establish beyond the shadow of any doubt that deatii of Baijanti Bai was homicidal in nature. This was also not disputed by the learned counsel for the oippeliant. His testimony a!so estabtishes that on 10-11- 2003 he had examined the oppellant and found one lacerated wound on the back oortion of head measurina 1x1/2" x muscle deeo duration of which was within 24 hours. This fact was also admitted bv the appeilsnt in his examination under Section 313 Cr.P.C. m^ l,.^^ad» sSSgS?' ^^'•^fy- 10. It was urged by the iearned counsel for the appeliant that Sunita PW-3 had admitted that Banwari PW-11 was aiso present when the appellant confessed his guilt in presence of the police. Therefore, the testimony of Bonwari PW-11 would tantamount to the confession made by the oppellant in presence of the police. However, liiis cr9ument cannot be accepted. Bonwari PW-11 has nowhere stated that at the time of making extra judicial-confession by the appeISant, the poiice was present. His testimony ciearSy shows that immediateiy cxfl-er learning about the death of Baijonti Bai he had visited the house of the appellmt where the appellant had toid hiw that since Baijanti Bai had assaulted him with c brick h®had killed her by assaulting her with a brick. Thus, the extra iudicial confession was mcde bv the appellant even before the merg intimation wos given to the poiice. There is absolutely no-rtiing to show that Bcnwari PW-11 bears ony jrudge against the appellant or has any dxe to grind against him. No question to impeach the credibiiity of this witness was asked in cross examination. There is nothing in his testimony to show that the extra judicial confession made by the appellont before him was not voluntarily or was made on account of any coercion, inducement or promise or favour. Thus, the learned triat Judge has rightly relied on the extra judiciai confession made by the oppellant for conyictina him. wi?':!'sl'::1ii: .-,-'.-••-s.:"- .B^; t3S:'i 11. Having thus considered the evidence led by the prosecution it its entirety, the follovuing facts are proved beyond the sbadow of doubt against the appellant:- Death of Baijanti Bai inside her house on 09-11-2003 was homicidai in nature due to hemorrhage as a resuit of rupture of the spleen and coma due to hecd injury. The presence of the cppeliant inside the house at the time of death of Baijonti Bai is established by fhe testimoriy of Kamli Bai PW-4, Supervisor PW-5 ond Banwari PW-11. (C) It is aiso estabiished that the appellant had sustained an injury on his head for which no expianation whatsoevsr was given by the oppellont. (b) Lastiy, the appellant made an sxtra judicial confession before Banwari PW-11 that he had caused the death of Baijanti Bai by assaulting her with a brick since she had also assauited him with a brick. 12. It is thus proved beyond doubt 1+iat the appeilant had caused the death of Baijanti Bai after she assaulted him with a brick on the head. The iear-ned triai Judge has accepted the testimony of Banwari PW-11 retatina to extra judicial confession made by the appeliimt as a whole and convicted the appeilont under Section-304 Part-I of the IPC instead of Section-302 of the IPC. Conviction of the appeliant under 5ection-304 Part-I of the IPC and the sentence awarded thereunder by ths learned trial Judge is weli founded cmd does not call for any interference. 13. In the result, the appeai failsand isdismissed. ____- OWP ..,sdelbDes^^ Raosa&r1