^e^ ff /•""> '^s,,.. HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE'MR. T.P. SHARMASB HON'BLE MR. R.L. JHANWAR. JJ. Criminal Aooeal No. 184/2006 APPELLANT VERSUS RESPONDENT Panchram @ Panchlal S/o late Mscnsmgh aged 38 years R/o Village Tatekasa Police Station Ambagarh Chowki District Rajnandgaon (C.G.). State of Chhattisgarh through Police Station Ambagarh Chowki District Rajnandgaon. .-1 s CRIMINAL APPEAL UNDER SECTION 374 (2) OF THECR.P.C. Present:- Ms. Usba Chaadrakar,Advocate for the appeUant. Ms. Madhu Nisha Singh, P.L. for the State/respondent. ORAL-JUDGEMENT (Passedon 10/03/2011) The following iudgnient of the Court was passed bv T.P. Sharma. J:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 10/1/2006 passed by Sessioris Judge, Rajnandgaon (C.G.) in Sessions Trial No. 110/2005 whereby and where under after holding the appellant guilty for the commission of offence of culpable homicide amounting to murder of his inother Jayantribai, convicted the appellant under Section 302 of the Indian Penal Code and sentenced imprisonment for life and fine of Rs. 1000/-, in default in~— Sfet^^'^sifag^g;®^•;£ ^' ?;?'<» / "^,. 'v 2. 3. of payment of fme amount additional simple imprisonment for 3 months. Conviction is impugned on the ground that without any iota of evidence -sufficient for conviction of the appeUant, Court below has convicted and sentenced the appeUant as aforementioned and thereby committed an 1 Ulegality. - As per case of the prosecution in brief is, on fateful day of 24/7/2005 at about 12:00 at night appellant strangulated the neck of her mother Jayantribai (since deceased) who was sleeping in her house and caused her death. On 25/7/2005 at about 8:00 A.M. he intimated PW2 Brijlal that his mother is missing, he directed for convening the Panchayat fhereafter Panchayat-was convened at about 9:00 P.M. At about 12:00 at pi£htappellant made extrajudicial confession before the Panchayat that on account of frequent problems and dispute he has strangulated the neck of her mother and committed her miirder. His statement was recorded vide Ex. P-5. Villagers telephoned the Poliee and Police rushed to village Tatekasa where Dehati Nalishiw&s lodged by PW2 Brijlal vide Ex. P-3. Dehati Marg •WSLS recorded vide Ex. P-4. On fhe basis of Dehati Nalishi Ex. P-3 and Dehati Marg Ex. P-4, First Information Report was registered vide Ex. P-15. |After 'W-'W^K^S'f^iSSS^S-SS^ '^ ^':::'?'1, & wi"y t .<••-,<' summoning the witnesses vide Ex. P-7, inquest over the dead body of deceased Jayantribai was prepared vide Ex. P-8. Spot map was prepared vide Ex. P-10. Patwari also prepared spot <nap vide Ex. P-13. Dead body of Jayantribai was sent for autopsy to Primary Health Center, Arabagarh Chowki vide Ex. P-1. PW5 Dr. Vikas { Bambeshwar conducted. fhe autopsy vide Ex. P-12 and found following injuries:- (i) Ligature mark aU around the neck of 10" length found over the neck. (ii) Contusion of 7x6 c.m. over back. (ui) Contusion of 7 x 6 c.m. over left shoulder. (iv) Contusion of 8 x 7 SE 7x6 c.m. over right side of waist. (v) Contusion of 4 x 3 c.m. over right elbowjoint. (vi) Contusion of 5x3 c.m. over leftelbowjoint. Cause of death was strangulation and death was homicidal in nature. Statements of the witnesses were recorded under Section 161 ofthe Code ofCriminal Procedure, 1973 (in short the Code'). After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Ambagarh Chowki who in turn committed the case to the Court of Sessions, Rajnandgaon. In order to prove the guilt of the appellant prosecution examined as many as 8 witnesses. Appellant was examined under Section 313 of the Code where he denied the circuinstances appearing against him, innocency and false implication in crime in question is claimed. After affording an opportunity of hearing to the parties learned Sessions Judge, Rajnandgaon has convicted and sentenced the appellant as aforementioned. t Ms. Usha Chandrakar, Advocate for the appellant and Ms. Madhu Nisha Singh, P.L. for the State/respondent are heard. Judgment impugned and record of Court below perused. Learned counsel for the appellant vehemently argued that conviction of fhe appellant is substantially based on the alleged factum of extrajudicial confessipn made by appellant before PW2 Brijlal, PW3 Jeevanlal, PW4 Rohit Kumar 8s PW6 Motilal. Their evidence relating to extrajudicial confession made by appellant does not inspire confidence and trustworthy even as per evidence of aforesaid witaiesses, appellant has made extrajudicial confession under pressure and threat and he has not made any extrajudicial confession voluntarily. In these circumstances, only evidence of extrajudicial cohfession without further corroboration from any independent sources is not safe to rely. On the other hand, leamed counsel for the State/respondent opposed the appeal and argued ^hat ia°SB.;i®i! i3*--at.-"i3.'>..- /' .,':".1^. i/'t'' ^ 1i ^.•/^ :ll':j extrajudicial confession is also a kind of evidence and once it is proved to be true then same is sufficient for conviction of the appellant. In the present case, factum of extrajudicial cenfession has been proved by the evidence of PW2 Brijlal, PW3 Jeevanlal, PW4 Rohit Kumar 8s PW6 Motilal the independent persons and li witnesses of the viUage, their evidence cannot be discarded on the ground of trifle omission, contradiction ahd discrepancy. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. 11. In the present case, homieidal death as a result offatal injury found over the neck and other part of the body of deceased Jayantribai has not been substantially dispute4 on^behatf of the appellant on the other hand, otherwlse also established by the evidence of PW5 Dr. Vikas Bambeshwar and autopsy report Ex. P-12 and deafh was homicidal in nature. 12. As regard the compUcity of appeUant in crime in questipn, conviction of the appellant is subsfantially based on the evidence relating to extrajudicial confession made by the appeliant before the PW2 Brijlal, PW3 Jeevanlal, PW4 Rohit Kumar 8s PW6 Motilal. As per evidence of PW2 Brijlal, mafemgl uncle ./;'/ '^. .*'•& Bs ^.~.-^.,/' .-^ of appellant and brother of deceased Jayantribai, appellant informed him that her mother i.e. Jayantribai is missing and door is closed from inside then he advised to convene the Panchayat thereafter Panchayat was convened at about 9:00 P.M. they went to the house of appellant wh^re they saw the door was closed \ from inside. Sankdl of the door was opened by appellant by 'inserting hand, they went inside the room where dead body of Jayantribai was lying. AgEun, persons came back near the place of Panchayat and they interrogated the appellant initially he did not state anything to thePanchayat but at about 12:00 at night he made extrajudicial confession that he has killed his mother on Sunday at 12:00 at night, he did not state the cause of coinmittmg murder of his mother at that time Panchayat came into end thereafter on second day nloming, again Panchayat was convened and Ex. P-5 was prepared. At about 2:00 P.M. Police came and Dehati NaUshi was lodged. His evidence is substantially corroborated by the evidence of PW3 Jeevanlal, PW4 Rohit Kiimar & PW6 Motilal. All the witnesses have deposed thal Panchai/at was convened at the instance of appeUant, they visited Che house of appellant where they saw the room was closed from inside smdiSankal of the door was opened by appellant by inserting hand 13. and open the Sankal. Dead body of Jayantribai was foi.md inside the room. All the witnesses have admitted that initially appellant has not admitted his guilt but at about 12:00 at night he has admitted the'guilt then second day again Pahchayat was convened and extrajudicial confession given by appellant was :t recorded as Ex. P-5. Defence has cross-examined these witnesses at length, in which these witnesses have admitted that deceased Jayanfa-ibai was inhabit of calling villagers, so niany tim.es she was convicted in village meetings but they have denied the suggestion that they are compelling the appellant for making extrajudicial confession and admitted the guilt or execution of Ex. P-5 alleged written extrajudicial confession. Extrajudicial confession is also a kind of evidence and once it is proved to be true then same is sufficient for conviction of the appellant, While dealing with the evidentiary value of extra- judicial confession made iinder Section 24 of the Evidence Act, the Apex Court in the matter of Baldev Singh y. State of Punjab1 has held that extra-judicial confession is generaUy of weak type of evidence. No ^ conviction ordinarily can be based solely thereupon unless same is corroborated in material particulars. ' 2009 AIR SCW 373.0 14. While dealing with the sarne question, the Apex Court in the matter ofMohd. Azad @ Saniin v. State ofWest Bengal2 has held that if extra-judicial confession made voluntarily and truth in 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 •'t • . as under:- "22. An extra-judicial confession, if voluntary andtrue and made inafitstate ofmind, 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 m.ade. 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 ofevidence. It wauld 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 confesswn. Such a confession 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 rem.otely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive 2009 AIR SCW 752 "i-lhii F of attributing. an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that fhe.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 coiyfession can be accepted and can be the -basis of conviction if it passes the test of credibility". 15. As per evidence of PW2 Brijlal, PW3 Jeevanlal, PW4 Rohit Kumar 85 PW6 Motilal, appellant himself has informed these persons that his mother is missing and room. is closed from inside. Room was opened from outside in presence of appeUant either by himself or either by Kotwar then Panchayat was convened at about 9:00 P-.M. tUl 12:00 at night, he did not admit the guilt and has not made any extrajudicial confession before the Panchayat thereafter at 12:00 at night he has made extrajudicial confession then on second day again Panchayat was convened and extrajudicial confession was recorded Ex. P-5. Present appellant suggested these persons that they have compelled him for extrajudicial 'confession and he has not given any extrajudicial confession voluntarily. Whether appellant 'has given extrajudicial confession vokintarily is| I- -M^ . J / i5 10 question of fact and can be inferred on the basis of circumstances in which appellant has given extrajudicial conf&ssion or hisstatement wasrecorded. Evidence of aforegaid witnesses clearly reveal that right from 9:00 P.M. till 12:00 at night for about 3 hours, appellant present with members of Panchayat in the t village but he has nofmade extrajudicial confession but after 3 hour's as per evidence of these witnesses he has made extrajudicial confession and same was not recorded at the same time and again ineeting was convened' and exta-ajudicial confession made by appellant was recorded on seeond day. In case of voluntarily extrajudicial confession made by the appellant there was no occasion for delaymg fhe same for 3 hours or there is no occasion for not recording the statement at the time of giving such extrajudicial confession, presence of appeUant with members of Panchayat for 3 hours and initiaUy after denying the incident or guilt again admission of the guilt after 3 hours itself reveal and sufficient for drawing an inference that present appellant has not made extrajudicial confession before Panchayat voluntarily ahd after noticing the fact of murder of his mother Jayantribai, persons of Panchayat had created pressure upon the appellant and finally they have Becorded 11 ^m l^ li.;l; i-:^ \ written extrajudicial confession. Extrajudicial confession is admissible in evidence and it has been given voluntarily.-This is not a case in which on the basis of extrajudicial confession some recovery has been made or same is corroborated by the some other substantial evidence. , •t 16. In fhese circumstances, we are unable to accept the fact that appeUant has made extrajudicial confession voluntarily before the Panchayat and in absence of other evidence to corroborate the factum of extrajudicfal confession inade by the appellant it is difficult to maintain the conviction of the appellant under Section 302 of the Indian Penal Code. Consequently, criminal appeal is allowed. Conviction and sentence of the appeUant Panchram. @ Panchlal under Section 302 of the Indian Penal Code is hereby set-aside. He be set at liberty at once. He be released forthwith, if ndt required in any other case. :; Sd/-; t.P.Shanna Judge Sd/- R.L. Jhariwar Judge '•sv^ssssaw.