HIGH COURT OF CHHATTESGARH AT BILASPUR Criminal Appeal No.728 of 2003 \, CORAM: HON'BLE MR.T.P.SHARMA <& HON'BLE MR.R.L.JHANWAR, JJ. APPELLANT (In Jail) :-^^^;^ ys:^^^^^'"^ RESPONbENT Ramsundar, S/o Shursai, aged about 26 years, Occupation - Agriculture, Caste Kodaku, resident of village Tharki, Police Statio^i Rajpur, Dist. Surguja (C.6.) 'l . Versus State of Chhattisgarh Through:- Station House Office, Police Station, Rajpur, Dist. Surguja (Ambikapur) (C.6.) (CRMINAL APPEAL UNDER SECTCON 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973) Present:- Mr. Abhay Tiwari, counsel for the appellant. Mr.V.V.S.Murthy, Deputy Advocate Seneral for the State/r'espondent. ORAL JU&6MENT (Passed on 04th January, 2010) The oral judgment of the Court was delivered by T.P.5harma, J.:- Challenge in this appeal is to the judgment of conviction and order of sentence dated 30.06.2003 passed in Sessions Case No. 134 of 2002 by the Sessions Judge, Surguja place at Ambikapur whereby and whereunder after holding the appellant guilty for the offence punishable under Section 302 and 323 of the I.P.C. for causing homicidal death amounting to murder of Raabutram and causing simple injury to Shursai, grandfather and father of the appellant, the learned Sessions Judge convicted the appellant under Section 302 and 323 and sentenced to rigorous imprisonment for one year under Section 323 of the I.P.C. and life imprisonment under Section 302 of the I.P.C. '1>» i!f "_ ,^'^' •li - r K':'ffSs^«esS. 2. Judgment & order are challenged on the ground that without any clinching and credible evidence, the Court below has convicted and sentenced the appellant as aforemenfioned and thepeby committed illegality. 3. Case of the prosecution in br-ief is that on fateful day 10.02.2002 at 1.30 a.m. (in the night) the deceased was sleeping in his house. The minor daughter of the appellant started weeping. Wife of the deceased directed the wife of the appellant to fake care of the child, then the appellant tried to assault the wifeof the deceased by a^e and during the course of interception the father of the appellant received .inju'ry and when the deceased came to intervene, theappellant also assaulted him by axe and as a result of injuries by axe, the deceased died, Shursai P.W.l - Father of the appellant and son of the deceased lodged F.I.R. Ex.P.l on 10.02.2002 at 12.40 p.m. and merg intimation vide Ex.P.2. Investigation Officer proceeded for the spot where after summoning the witnesses vide Ex.P.3, inquest over the dead body was prepared vide Ex.P.SA. Dead body was sent for autopsy which was conducted by &r. Rajendra Bansariya P.W.7 vide Ex.P.25, who after examination found the following injuries: 1) Incised wound over right side of Scapular region 8 cmx 2 cmx bone deep. 2) Incised wound over right thigh 4 cm x 2 cm. 3) Incised wound over left leg 5 cmx 2 cmx bone deep. Artery of calf muscle of left leg found cut and bone of scapula was found fractured. Spot map was prepared vide Ex.P.5. Plain soil and blood stained soil were seized vide Ex.P.9 and appellant was taken into custody. He made disclosure statement vide Ex.P.ll on the basis of which axe was recovered vide Ex.P.12. Biood stained cloths of the appellant were recovered vide Ex.P.10. Seized articles were sent for examination and presence of blood stains over the axe was found vide Report Ex.P.21 of Forensic Science Laboratory, Raipur. Complainant has also been sent for medical examination to Dr. Rajendra Bhansariya P.W.7 vide Ex.P.14. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure (for short 'the Code'). After -p- ^^" IU '•"iiRI j .'.'/ ^" <^'s%-^ Bi completion of investigation, charge sheet was filed before the Courtof Judicial Magistrate First Class, Ambikapur who in turn committed the case to the Court of Sessions Judge; 4. In order to prove the 9uilt of the appellant/accused, the prosecution examined as many as 9 witnesses. Statement of the accused/ appellant was also recorded under Section 313 of the Code where he denied the circumstances appearing against him and innocence and false implication is pleaded. " ;'/ ••s. 5. Learned Sessions Judge after affording opportunity of hearing to the parties, convicted and sentenced the accused/appellant as aforementioned. 6. We have heard Mr. Abhay Tiwari, counsel for the appellant and Mr.V.V.S. Murthy, Deputy Advocate General for the State/respondent and perused the judgment impugned and record of the Court below. 7. Learned counsel appearing for the appellant vehemently argued that according to the case of the prosecution, the appellant, father of The appellant - Shursai P.W.l and the deceased - Raabutram, grandfather of the appellant were residing in the some house along with other family members. On 10.02.2002 the said incident took place on the ground of weeping of minor child of the appellant. The appellant has not caused any injury to the deceased with intent to cause death of the deceased and even he has not caused injury over vital parts of the deceased. It appears that on sudden provocation, the present appellant has caused injury. If the case of the prosecution is admitted in its face value, there is not even an iota of evidence to show that the appellant with intent to murder caused fatal injuries on the deceased. He further argued that the case of the prosecution rests only on the evidence of Ramsai P.W.9 to whom the appellant has made extra judicial confession that he assaulted his grandfather by axe. The extra judicial confession is a weak type of evidence and not sufficient for drawing te: w.^ inference that the appellant has committed the offence of murder without any further corroborationji s \ ? 8. On the other hanc|, learned State counsel vehemently opposed the arguments while submittirig that substantially conviction is based on extra judicial confession of the appellant made before Ramsai P.W.9. Although extra judicial confession is a weak type of evidence but when it is proved then it may be sufficient for drawing an inference that the appellant committed murder of his grandfather wit,h intent to kill him thereby the learned lower Court was justified in convicting' and sentencing the appellant as aforementioned. 9. In order to appreciate the contentions of the parties, we have examined the evidence adduced on behalf of the prosecution. Substantially, conviction is based on extra-judicial confession and evidence of disclosure of fact. 10. In the present case, homicidal death of the deceased is not substantially disputed by the appellant otherwise also established by the evidence of Dr. Rajendra Bansariya P.W.7 and autopsy report Ex.P.25 which revealed that three injuries were found over the body of the deceased and death was as a result of excessive haemorrhage from the arteries. 11. As regards the complicity of the appellant/accused in crime in question, the other witnesses including Shursai P.W.l, Budhni Bai P.W.2, father and grandmother of the deceased and also Jhariram P.W.8 are the relatives of the appellant and have not supported the case of the prosecution. In the present case, the deceased was present in the house of the appellant where appellant was also present. After the incident, according to Ramsai P.W.9, the appellant made extra judicial confession that he has assaulted Raabutram by axe while he was quarrelling with his wife. This statement has not been challenged by the defence in his cross-examination. The other witnesses have deposed that the dead body of the deceased along wit1i injury was found in the house of the appellant. Extra-judicial confession is generally of weak type of evidence and extra judicial confession itself is not safe to rely without any further corrpboration but once it is proved then that may be sufficient for conviction of the appellant. 12. While dealing with the evidentiary value of extra-judicidl confession made under Section 24 of the Evidence Act, the Apex Court in the matter of Baldev 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 corro.bor&ted in material particulars. 13. While dealing with fhe same question, the Apex Court in the matter of Mohd. Azad ©Samin v. State of West Bengal has held that if extra- judicial confession made voluntarily and truth 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 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 vatue 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 witness who gives the evidence. It is not open to any court 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 perpetratpr of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidance of the witness to a rigorous test on the '2009 AIR SCW 3730 22009 AIR SCW 752 VhsSSS^- touchstone of credibility, the extr'a-judicial confession can be accepted and can be the basis of conviction if it passes the test of credibility" 14. In the present case, the extra judicial confession made by the appellant is unchallenged and finds corroboration from other evidences like post-mortem report and medical evidence, sufficient for drawing inference that the present appellant has caused injury to the deceased. Ghursai P.W.l has specifically deposed T-hat accused/appellant has not assaulted him. The prosecution has declared this witness as hostile. He has not deposed that the appellant has caused any injury fo hfm. In the absence of any evidence especially in the light of evidence of Shursai P.W.l, the conviction and sentence under Section 323 of the I.P.C. is not sustainable under law. 15. As regards the motive is concerned, according to the case of the prosecution, the deceased and the appellant were residing in the same house. The dispute took place on account of weeping of minor child. This is not the case in which when the appellant saw the deceased and assaulted him or he has assaulted the deceased on the ground of previous enmity or any cause. The appellant has caused injury over the back and leg of the deceased and not on vital parts. It shows that the appellant has not caused any injury to the deceased which resulted into causing homicidal death amounting to murder of the deceased. The act of the appellant does not travel beyond Section 304 part II of the I.P.C. The learned Sessions Judge has convicted the appellant under Section 323 of the I.P.C. but has not considered the most material aspect i.e. motive of the offence and thereby committed illegality. 16. For the foregoing reasons, we are of the considered view that conviction of the appellant under- Section 323 and 302 of the I.P.C. and the sentence awarded thereunder are not sustainable under law and it requires reconsideration. 17. Consequently, the appeal is partly allowed. The conviction of the appellant under Section 323 of the I.P.C. is hereby. set aside and the cz.:. conviction of the appellant under Section 302 of the I.P.C. is altered to Section 304 part II of the I.P.C. and the appellant is convicted under Section 304 part II of the I.P.C. arid is sentenced to rigorous imprisonment for 8 years. Sd/- T.P. Sharrsia Sd/- R.L. Jhanwar li. Anjani