3S HIGH COURT OF CHHATTISGARH,_BILASPUR Criminal Appeal No.356 of 2005 AP-PELLANT: Jalson Tirki, S/o Ajar Tirki, aged about 26 (In Jan) years, R/o Village Dhourakheda Disurdeg, District Simdega (Jharkhand), Present Address Village Labed (Ghuidand) P.S. Kartala, District Korba (C.G.) ‘ Versus State of Chhattisgarh, Through Police Station Kartaia, District Korba (C.G.) {Criminal appeai under Section 374 (2) Criminai Procedure Code} RESPONDENT: Present: Miss Nirupama Bajpai, counsel for the appeiiant. Mr. J.A. Lohani, Panel Lawyer forthe State/respondent. Division Bench: - Hon’bie Mr. T.P. Sharma and Hon’ble Mr. R.N. Chandrakar, JJ ORAL JUDGMENT (14-7-201 1) T.P. Sharma, J: - 1. Chaiienge in this apneai is to the judgment of conviction & order of sentence dated 31-1-2005 passed by the Additionai Sessions Judge, Korba in Sessions Trial No.83/2004, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of his sister-in— law (bhabhi), convicted the appellant under Section 302 of the IPC and sentenced him to undergo imprisonment for life & pay tine of Rs.500/—, in default of payment of nne to further undergo RI for six months. . Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant, and thereby committed illegality. . As per case of the prosecution, the appellant was having illicit relation with Ashamani Bai (since deceased) —— wife of his brother Nehamiya Minj (PW—1), on the date of incident i.e. on 21-3-2004 between 11 a.m. and 2 p.m. the appellant along with kids of Ashamani Bai & Ashamani Bai were present in the house where the appellant was also residing in a separate i room, the appellant strangulated the neck of Ashamani Bai and caused her instantaneous death. The appellant was present in his house. At the same time, Nehamiya Minj (PW-1) — brother of the appellant & husband of the deceased, came, his children were weeping and dead body of his wife was lying on which he asked the appellant before whom the appellant has made extra judicial confession that he has killed his wife Ashamani Bai and committed her murder. Thereafter, Nehamiya Minj (PW-1) went to the police station and lodged FIR vide Ex.P-1. Merg was recorded vide Ex.P—14. The Investigating Officer left for the scene of occurrence and after sUmmoning the witnesses vide Exs.P-15 & P-16, prepared inquest over the dead body of the deceased vide Ex.P-17. Dead body was sent for autopsy to Community Health Centre, Kartala. Dr. B.S. Narawaria (PW—8) conducted autopsy vide Ex.P-10 and found following injuries: - (1) Lacerated wound of 1 1/2” x 3/4" in triangular shape over head. (2) Bruise of 1 1/2" x 3/4” over right eyebrow. (3) Bruise of 1 1/4" x 1” over left temporal region. (4) Bruise of 1 3A" x 1 1A” over left cheek. (5) Lacerated wound of 3/4” x 1A” x W over left cheek. (6) Bruise over neck of 1" x 1/2”. (7) Bruise over neck of 1 1/2” x 3A" over left side of neck. (8) Three upper teeth were missing. (9) Bruise over riht temporal region of 3 W x 2 %". g Mode of death was asphyxia as a result of throttling. During the course of investigation, the appellant was taken into custody, he made disclo‘ser statement of banian & lungi vide Ex.P-5 and same was recovered at his instance vide Ex.P-6.. 'Spot map was prepared vide Ex.P-7. Bloodstained & plain soil and broken pieces of bangles were recovered from the spot vide Ex.P-8. Patwari prepared spot map vide Ex.P—12. Seized articles Were sent for chemical examination vide Ex.P-18. Presence of blood over banian & lungi was connrmed vide Ex.P#19. . Statements of the witnesses were recorded under Section 161 of the CrPC.- After completion of investigation, charge sheet was med before the Court of Judicial Magistrate First Class, Korba who committed the case to the Court of Sessions, Bilaspur from where learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the accused/appellant, the prosecution has examined as many as fourteen witnesses. The accused/appellant was examined under Section 313 of the CrPC in which he denied the circumstances appearing against him, pleaded innocence and faise implication in the crime in question. 6. After affording opportunity of hearing to the parties, Iearned Additionai Sessions Judge, convicted and sentenced the appellant as aforementioned. . We have heard Iearned counsel for the parties, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellant vehemently argued that conviction of the appellant is based on circumstantial evidence, especially the extra judicial confession which does not inspire confidence and is not trustworthy. The prosecution has not proved the case beyond all reasonable doubts and the accused is entitled for benefit of doubt. . On the other hand, Iearned State counsel opposed the appeal and submitted that the appellant has made extra judicial confession before the witnesses and his subsequent conduct is also relevant under Section 8 of the Evidence Act. Material collected on behalf of the prosecution is sufficient for drawing definite conclusion that the appellant has caused homicidal death of Ashamani Bai amounting to murder. 10.ln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 11.ln the present case, homicidal death of deceased Ashamani Bai as a result of fatal injuries over neck and other parts of the body has not been substantially disputed on behalf of the appellant, even othenlvise, it is established by evidence of Dr. B.S. Narawaria (PW-8) and autopsy report Ex.P-1O that death of Ashamani Bai was homicidal in nature. 12.As regards complicity of the appellant in the crime in question, conviction is substantially based on extra judicial confession and other subsequent conduct of the appellant relevant under Section 8 of the Evidence Act. 13.ln the present case, the appellant herein and his brother Nehamiya Minj (PW-1) were residing in same premises in different rooms. As per evidence cf Nehamiya Minj (PW-1) - husband of the deceased & brother of the appellant, on 21-3-2004 a1 about 12 noon, he came from the house of Sarpanch, dead body of his wife Ashamani Bai was lying in his house, his sons Ujwal & Ujwas were standing out of the house and were weeping, the appellant was present in the house, and on being asked, he made extra judicial confession that he has killed his wife. Thiswitness has denied the illicit relation of the appellant with the deceased. The prosecution has declared him hostile relating to the aforesaid illicit relation, but he has 'not supported case of the prosecution up to that extent. He has lodged the report Ex.P-1. Evidence of Nehamiya Minj (PW—1) is well corroborated by evidence of Ujiyas Minj (PW-2) & Sastina Minj (PW-3), Son & daughtei of the deceased, respectively, and Marcus Toppo (PW-5) before whom the appellant has made extra judicial confession. 14.As per evidence of Ujiyas Minj (PW-2), on the fateful day at about 12 noon, after the murder of his mother, the appellant rushed to him in the field where he was watching his paddy, the appellant washed his hands & legs in the river and told that blood was coming from hands & mouth of his mother, then they came to their house along withthe appellant where he saw the dead body of his mother with injuries over head & neck. The appellant himself made extra judicial confession that he has committed murder of his mother. 15.As per evidence of Sastina Minj (PW-3), on the fateful day the appellant came to her house, he was trembling, he dem‘anded water and after drinking water, on being asked by her maternal uncle Marcus Toppo, he made extra judicial confession that he has committed murder of Ashamani Bai. Marcus Toppo (PW-5) has corroborated the evidence of Sastina Minj (PW-3). Defence has cross-examined these witnesses at length, but has not been able to elicit anything in their cross-examination relating to the subsequent conduct of the appellant and the factum of extra judicial confession made before them. 16.Running from the spot after the incident, trembling of the appellant, demanding water, washing hands & legs, and informing persons about the injuries found over the body of the deceased are subsequent conduct of the appellant and relevant under Section 8 of the Evidence Act. Extra judicial confession is also a kind of evidence and once it is proved, then same is sumcient for conviction of the appellant. 5 17.While dealing with the evidentiary value of extra—judicial confession, the Supreme Court in the matter of Mohd. Azad @ Samin v. State of West Bengal1 has held that if extra-judicial confession is made voiuntarily and in a tit state of mind then it can be relied upon and confession will have to be prove like in any other evidence. Para 22 of the said judgment reads as under:- “22. An extra-judiciai confession, if voluntary and true and made in a tit 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 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 berrelied 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” 18.The Supreme Court in the matter of Shiva Karam Payaswami Tewar v. State of Maharashtraz 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. 19.Evidence relating to”extra judicial confession made before the witnesses by the appellant'is also corroborated by the promptly lodged FIR Ex.P—1 and medical evidence which inspires contidence and is trustworthy, and same is safe to rely upon. This'evidence is sufficient to establish the fact that the appellant has caused homicidal death of the deceased. 1 2009 AIR scw 752 2 2009 AIR scw 1226 20.As regards the question of intention, as per case of the prosecution, on the fateful day and at the time of incident, the appellant was present in the house of the deceased and the deceased died as a resuit of strangulation, bangles were also found broken and injuries were found over the body of the deceased which show repeated assaults made by the appellant. This shows the grave intention of the appellant for causing homicidal death amounting to murder of Ashamani Bai. 21.After appreciating the evidence available on record, learned Additional Sessions Judge convicted '& sentenced, the appellant. On close scrutiny of evidence, we do not tind any illegality or infirmity in the judgment. 22.Consequently, the appeal is devoid of merit, same is liable to be P l, Soma dismissed and it is hereby dismissed. \ sw- Sty. " ‘11P. sHARMA L .a jadge l Judge / ' i l