HIGH^OURT OF CHHATTISGARH ATBILASPUR DWISION BENCH CORAM: l^iiil HON'BLE MR. T.P. SHARMA & HON'BLEMR. R.L. JHANWAR, JJ. CriminalABBeal No. 1120/2001 APPELLANT VERSUS RESPONDENT Sodi Masa Kumm.a S/o Kumma, Aged about 30 years, Caste Muria, R/o village Dongripara Gatam, P.S. Katte Kalyan, District Dantewara. Sodi Kosa, S/o Bondu, Aged about35years, Caste Muria,R/o vUlage Dongripara Gatam, P.S. Katte •Kalyan, District Dantewara. StateofC.G. CMMINAL APPEAL UNDER SECTION 374 (21 OF THE CR.P.C. Present:- Mr. Ashok Dixit, Advocatefor the appellant No. 2. None fbrfhe a^ppellarrt No. l,lie is absconding. Mr. Vinod Shrivastava, G.A. for the 'State/respondenf. ORAL-JUDGJEMENT (Passedon 07/03/2011) The foUowinR iudgment of the Court was oassed ibv T.P.Sharma, J:- I 1. ChaUenge in this appeal: is to the judgment 6f | ij j ;i j-1 conviction and order of sentence dated 31/10/2001 j| ]•!' passed by Third Addition.al Sessions Judge, Bastar at| | Jagdalpur InSessionsTrial No. 226/2001; wherebyand j| where under after holdmg the a.ppellants guilty &r th:e]ij commission 6f offenGg: of|c;ulpablei homieide amountingj '^-- •'•' . .'.•••''. '. • • ' ' :' : • • • ''.'.'••'--'• •• ' • '• to murder 6f Madkami Pqjja, ednvicted the appellantsl SKMSSSi^SE'vl ^t^^*^^^^ afcBiinSfft^'^Ea l^^^^l^l^^^^MS^^l^iJI.B 1-t :i iri. !ii S,MWi l-:""-'-"""i"' / / i.r v i.'; :ji I: n 11 I S I ii' . i ] [II iffi w^aaii^apT7.; rs ^D) ^ under Section 302 read with Section 34 of the Indian Penal Code and sentenced imprisonment for life. 2. Conviction is impugned on fhe ground that without any iota of evidence sufficient for conviction of the appellant, Court below has convicted and sentenced the appellants as aforementioned and thereby conimitted an iUegality. 3. In the present case, appellant No. 1 was released on temporary leave by Disfa-ict Magista-ate, Dantewada vide order dated 26/12/2005, he was required to reti-im on 23/2/2006 but he has not return in jail till today and he is absconding. 4. As per case of the prosecution in brief is, between 26/1/2001 to 30/1/2001 on account of dispute relating to Rs. 200/- as a rent of Imli fruit appellants assaulted Madkami Pojja (since deceased) by stick and caused his deafh and left the dead body near the Dumam river, when Madkami Pojja did not return back to his home then his relatives inquired about him. On 30/1/2001 dead body of Madkami Pojja was found near the Dumam river and part of the body was eaten by Dog. Finally, dead body was identified as a body of Madkami Pojja. Panchayat was convened and on interrogation, both the appellants made extrajudicial . confession that they have killed Madkami Pojja. PW2 i.1 J ^l ^ 1 '/ s\ t A/ ! } •iW s^ v 5. Podiyami Bheema went to fhe Police Station and lodged First Information Report vide Ex. P-9. Marg intimation was recorded vide Ex. P-10. Investigation Officer left for scene of occurrence and after sumraoning the witnesses, inquest over the dead body of Madkami Pojja was prepared vide Ex. P-3. Two sticks stained with blood and blood stained 85 plain soil were recovered from the spot vide Ex. P-4. Dead body of Madkami Pojja was sent for autopsy to Primary Health Center, Katte Kalyan vide Ex. P-19. PW8 Dr. A.D. Bara conducted autopsy vide Ex. P-15 and found following injuries and symptoras:- (i) Decomposition of dead body was started. (u) Contusion of 3" x 1" over right arm. (iii) Incised wound of 2" x I" x 1" over right thigh. (iv) Multiple fractures of back of skull was found. (v) Skull was badly damaged. (vi) Right hand was separated from the body. (vii) Multiple fractures on head was found. Injuries were ante-mortem and death was horaicidal in nature. Patwari prepared spot map vide Ex. P-1. Blood stained cloths were seized from the appellant Sodi Masa Kumma vide Ex. P-5 and from the appellant Sodi Kosa vide Ex. P-6. Spot map was also prepared vide Ex. P- 21. Sealed cloths of deceased Madkami Pojja was seized u -,t1 vide Ex. P-22. Seized articles were sent for chemical examination vide Ex. P-23. Statements of the witnesses were recorded under Section 161 ofthe Code of Criminal Procedure, 1973 (in short 'the Code'). After completion of the investigation charge sheet was filed before the Chief Judicial Magistrate, Dantewada who in turn coramitted the case to the Court of Sessions, Jagdalpur from where leamed Third Additional Sessions Judge, Bastar at Jagdalpur has received the case on transfer for trial. In order to prove the guilt of the appellants prosecution exarained as many as 7 witnesses. Appellants were examined under Section 313 of the Code where they denied the circumstances appearing against them, innocency and false implication in crim.e in question is claimed. After affording an opportunity of hearing to the parties learned Third Additional Sessions Judge, Bastar at Jagdalpur has convicted and sentenced the appellants as aforementioned. Shri Ashok Dixit, Advocate for the appellant No. 2 and Shri Vinod Shrivastava, G.A. for the State/respondent are heard. Judgment irapugned and record of Court below perused. / / ^ ^, / t ^ -— --Y- ••—•-- •—- _T'. 1]"%, •.^'^I "•w/ ^ •^^y 'no '^, ^w 10. Learned counsel for the appellant No. 2 vehemently argued that conviction of the appellants is substantially based on extrajudicial confession made before the PW2 Podiyaini Bheema and PW3 Podiyami Mase but evidence of aforesaid witnesses does not inspire confidence and trustworfhy. Only evidence of extrajudicial confession is not sufficient for warrant conviction of the appellants in absence of any corroboration from the independent sources. 11. On the other hand, leamed counsel for the State/respondent opposed the appeal and argued that extrajudicial confession is also a kind 6f evidence and once it is proved to be true then same is sufficient for conviction of the appellants. In the present case, appellants have made extrajudicial confession before Panchayat in presence of PW2 Podiyami Bheema and PW3 Podiyami Mase. Evidence of aforesaid witnesses are sirfficient for drawing an inference that only appellants have committed culpable homicide amounting to murder of deceased Madkami Pojja. After appreciating the evidence available on record, learned Third Additional Sessions Judge, Bastar at Jagdalpur has rightly convicted and sentenced the appellants as aforementioned, @r i*y.^.^SS!'S^^^3 B!g8Bai*SBl>a 12. In order to appreciate the arguments advanced on behalf of the parties, we have exammed the evidence adduced on behalf of the parties. 13. In the present case, homicidal death as a fesult ofante- mortem fatal injury found over the body of deceased Madkami Pojja has not been substantially disputed on behalf of the appellants on the other hand, otherwise also established by the evidence of PW8 Dr. A.D. Bara and autopsy report Ex. P-15 and death was homicidal in nature. 14. As regard the complicity of appellants in crime in question, conviction of the appellants is sy.bstantially based on the evidence of PW2 Podiyami Bheema and PW3 Podiyami Mase before whom present appellants have made extrajudicial confession and have admitted the guilt. As per evidence of PW2 Podiyami Bheema, after detection of injured dead body of Madkami Pojja, present appellants were interrogated and they made extrajudicial confession that on account of dispute of Rs. 200/- they have caused fatal injury to Madkami Pojja resulting into his death. Defence has cross- examined this witness at length, in his cross- examination he has specifically deposed that appellants have made extrajudicial confession before him and Panchayat. His evidence is substantially corroborated •/ / ^ ^ ^ l/ < <^ }f,'// lil 1 i:.; 7 by the evidence ofPWS Podiyami Mase. He has deposed in his evidence that appellant Sodi Kosa has made extrajudicial confession before him. Extrajudicial confession is also a -kind of evidence and once it is proved to be true then saiue is sufficient for conviction ofthe appellants. 15. While dealing with the evidentiary value of extra- judicial confession madg under Section 24 of fhe Evidence Act, the Apex Court in the matter of Baldev Singh v. State of Punjab1 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. 16. While dealing with the sarue question, the Apex Court in the matter of Mohd. Azad @ Sainin v. State of West Bengal2 has held that if extra-judicial confession made voluntarily and truth m. a flt state of mind then it can be relied upon and confession will nave to prove like in any other evidence. Para 22 ofthe saidjudgment reads as under:- "22. An extra-judicial confession, ifvoluntary and true and made in afit state ofmind, can be relied upon by the court. The confession will have to be proved lihe any other fact. The value of the ewdence as to confession, 2009 AIR SCW 3730 2 2009 AIR SCW 752 ^GS ^ 17. Uke any other euidence, depends upon the veracity ofthe 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 confesswn is a weak type ofevidence. It would depend on the nature of the circu.mstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confessiori can be relied upon the conviction can be founded thereon if the evidence about the confession com.es 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 spaken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and not1v.ng 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 ofcredibility". Evidence of PW2 Podiyami Bheema is substantially supported by fhe evidence of PW3 Podiyami Mase, which are suf&cient for drawing an inference that iHBWIitti present appellants have raade extrajudicial confession before them relating to commission of such offence. 18. After appreciating the evidence available on record and placing reliance of extrajudicial confession made by appellants, Court below has rightly convicted and sentenced the appellants as aforementioned. 19. On close scrutiny of the evidence, we do not find any illegality for conyiction and sentence of the appellants. Consequently, criminal appeal is devoid of merits, same is liable to be dismissed and is hereby dismissed. Sd/- T.P. Sharma Judge Judge ^/ /, ^ '^\ '/ c/ vf. /// )) 4