'XJ i.^ Rajakuiaar alias Ravi Kum.ai" Bhatt, soa of Shri Asim Bhatt, aged about 25 years, Occupation Labourer, resident of Deivarpara, Raigarh (Chhattisgarh) State of Cbliattisgarh Through P.S. Cily Kotivali, District Raigarh (CG) APPEAL V/S374 (210F THE CODE OF CRIMINAL ADOearance: SIiri B.D.Badgaiya, Coiuisel a-ppoiated by Legal Aid Com.niittee for the appeUant and Shri T.R. Dahire, Advocate on behair of Shri S.K. Tiwari, origiaaBy appoiated counsel by fhe Shri Saiideep Yadav, Dy. Goveraiaent Advocate for fhe State. iea'ble Shri R.L.JIianwar.JJ ,J. (5.3.2011) es T.P. ChaUenge in. this appeal is to fhe judginent of conviction aad order of sentence dated 24.5.2005, passed by the 4th Additional Sessions Judge, (FTC), Raigarh (CG) m ST No.4/2005, Vvhereby and where uiider the leamed AdditiGD.al Sessions Judge, after holding Uie appeUant guilty for coiiiniission of culpable hojnicide amountiag to niurder of Sm.t. Gayatri and concealin$ ftie evidence of cruiiia.al case, convicted the appeUatit under Sections 302 aild 201 of tlie IPC and sentenced for life itaprisoniuent aiid fiiie ofRs.200/-, ia default ofpayiuent offiiie to fui-ther undergo R.I. for 2 m.onths; aiid R.I. for 7 years aild faie of Rs.200/-, m default ofpaynient offiiie to fuillier uadergo R.I. fcr 2 nionfhs respectively. 2. The convictioa is impugned oa the ground tliat witliout tliere beuig any iota of evidence sufficient for convictioa of tlie appellailt, the leai-ned Additional Session Judge has coavicted euid senteiiced tlie appeUaat as aforesaid laeationed aiid fliereby com.iu.itted iUegalitj,-. 3. As per case of proseciition, fhe present appeUant is fhe tenaat of unfortuiiate deceased sm.t. Gayatn, has coiaiaitted hoiaicidal deafh ainountiag to hcr raurder befaveea 14.9.2004 to 17.9.2004 at vUlage Sonuinuda and buried fhe dead body ia a diteh. He made extx-a judicial confession before Diiiesh Tiwari. (PW-14), wlio lodged writteil coiiiplaint vide Ex. P/14, on fhe basis of whicli Rojnamcha Saiia. was recorded vide Ex. P/ 17. Deliati Nalishi was recorded yide Ex. P/ 12A. On fhe basis on Dehati Nalishi, PIR was registered vide Ex.P/12. Dehati liierg was also recorded nde Ex. P/11A aad inerg was recorded vide E.x.P/11. The Investigatiag Officer proceeded for enquuy aiid after surElluoiiu.ig wifaiesses vide Ex. P/2, after exhuiaiag fhe body vide Paachaiiaoia Ex. P/3 from fhe ditch, inquest was prepared vide Ex. P/2A. Plaiii soil, blood staiaed soil aad coal powder was recovered froin the spot vide Ex.P/5. Dead body of' the deceased was sent for autopsy to K.G. Hospital, Raigarh, where Dr. P.K. Agrawal (PW-7) conducted autopsy vide Ex. P/8 au.d foiind Ugature aad ligatui-e niark over fhe neck. Fiacture of Tracbeawas also foiind. Mode ofdeaffawas asphyxia. Statements ofthe witaesses were recorded under Section 161 ofthe Code of Criiniiial Procedure, 1973 (ia short tlie Code). 4. After corapletion of investigation, cliarge sheet was filed before fhe Chief J-udicial Magistrate Raigarh, who iii tui-n, committed fhe case to fhe Court of Sessions, Raigarh, froin wliei-e the leamed Additional Sessions Judge received thc case on transfer for tiial. 5. In order to prove the guilt of fhe accused/appeUaat, prosecutioa exainuied as iciaay as 21 xvitaesses. Accused was examiaed under Section 313 of fiie Code, ia which, he denied the circumstaaces appeariag agaiast him, inaocence aad false unplication iii criiae ia question was claimed. 6. After affording opportunity of heariag to fee parties, tbe leamed Additional Sessioas Judge convicted and sentenced the appellaat as aforesaid Hientioned. 7. We have heard learaed couiisel for the parties at length, perused the judgnient impugned aad record offhe trial Court. 8. Leamed couiisel for flie appeUaat veheinenUy argued fhat conviction of fbe appeflaat is based on tbe alleged extra judicial coaiession inade by him. before Dinesh Tiwari (PW-14) aad Shagwantin (PW-15), wife of Diaesh Tlwari, but fheir evidence does not iuspire confidence aad trustworfhy aiid is not siifficient for drawing aa ioference fhat fhe appeUao.t had laade extra judicial coafession before fheiu relatmg to conuaission of inurder. He placed reliance on fhe decision of fhe Apex Court rendered in tbe inatter of of Cttar Pradesh, Respoadent1, ia which Uie Apex Court has held tliat retracted confession is not safe to rely on fbe grouiid of iiaprobabiiity of inauner of murder, appeUant is entitled for benefit of doubt •AIR 1957 SC 381 '^\ '.'I y 9. On fbe ofher haad, leamed counsel for tlie State vehementiy opposed these arguinents aud submitted fhat in fhe present case, conviction of tlie appeUaat is substantiaUy based oa fhe evidence ofPW-14-DiaeshTiwari and PW-15- Bbagwaatm, wife of Diaesh Tnvari, co-tenaiits aad neighbourers of fhe appeltaiit and it is sufScient for drawtag an iafereace that fhe appellaiit has inade extra judicial confession of cominission of offeace before thein aad tlie same is safe to rely for conviction of the appeUant. 10. In order to appreciate the argiiiaents advariced on behalfof the parties, we have examiaed fhe evidence adduced on behatf of tlie prosecution. 11. in the present case, hoiaicidal death as a result of fatal uijiuy found over Uie neclc of fhe deceased Gayatri has not been substailtially disputed on behalf of the appeUaat, on fhe otber hand, it is established by fhe evidence ofDr. P,K. Agrawal (PW-7), ailtopsy report Ex. P/8, euquiiy report Ex. P/9 aad deatli was hoiaicidal ui nature. 12. As regards tlie coiapUcity of the appeBaiit iii cruae ta questiou is concemed, conviction ofthe appellaiit is substaatiaUy based on fhe evidence of Dinesh Tiwari (PW-14) and Bhagwamtiii (PW-15), wife of Diaesh Tnvaii and neigbbourers ofthe appeltajit, who are also tenant of the deceased and Vi7rittea report Ex. P/ 14 lodged by Diaesh Tiwad (PW-14). Extra judicial confession is' also a kiud of evidence aad once it is proved then it is sufiicient for conviction of the appeUaut. 13. WhUe dealiag with fhe evidentiary value of extra-jiidicial confession raade uader Sectioa 24 of fhe Evidence Act, fhe Apex Co-L-ut in the niatter of Baldev Sisigh v. State of Pnffijab2 has held fhat extra-judicial coufessioa is generaUy of weak tfpe of evidence. No convictioa ordinarily caa toe based solely fhereupon uuless saiae is corroborated ia niaterial particulars. 14. While deaUng with the same questioii, the Apex Court ui the matter of Mohd. Azad @ Sainia v. State of West Bengal3 has held fhat if extra-judicial confession uiade voluntarily aad tnitli in a &t state of niind then it cau be relied iipoa suid confession will nave to prove like ia aiiy otlier evidence. Para 22 ofthe said judgnient icads as under:- "22.- An extra-judicial confession, if voluntaiy aiid tnie and inade in. a iit state of luiad, can be relied upon b;,' fhe court. The confession.wul have to be proved Uke aay other fact. The value of fhe evidence as to confession depends upon the veracity of fhe witaess to whoni it has been m.ade. The value of fhe evidence as to the confessioil depends on fhe reliability of the witaess who gives fhe evidence. It is not open to aiiy court to start wifh a presuniption tb.at extra-judicial confession is a weak type of evidence. It would depend on the nature of fh.e circuin.staaces, the tmie when the confession was uiade aud the credibflity of the witaesses who speak to such a confession. Such a confession can be reUed upon fbe conviction can be founded thereon if the evidence about tiie confession coines froni fhe niouth. ofwitnesses v,7ho appear to be unbiased, not even reniotely ioimical to the accused, and iii respect ofwhom. nothing is brought out which m.ay teiid to uidicate that he niay have a Biotive of attributuig an untnifhful stateiaent to the accused; < fhe words spoken to by fhe witaess are clesir, unarabiguous aiid unniistakably convey fhat. the accused is the perpetrator of fhe crim.e aiid nofhini is oinitted by the witaess wliich inay nulitate against it. After subjectuig fhe evidence of fhe witness to a riaorous test on tlie touchstone of cred'ibility, fhe extra-judicial confession can be 22009 AIR SCV/ 3730 32009 AIR SCW 752 LlaA.±-aUft accepted and caii be fb.e basis of conviction if it passes tlie test of credibilitv^ 15. As per evidence of Diiiesh Tiwari (PW-14), appellaat is his neiglibour and tenaiit of fhe deceased, told hun. that soruebody has kiUed the laad lady and has tlu-owu her dead body back side of their house. He also iuform.ed hrm ttiat he b.as buried fhe dead body of fhe deceased ui a- ditch under coal powder and tlireatened him tliat he sliould not tell this fhing to anybody. PV/-15 Bhagwao.tm has also deposed fhe same fact ia para 2 of fa.er evidenee. PV/-14 Dinesh Tiwari has lodged writteu report vide Ex. P/ 14, in which, he has nientioned that the appellaiit has uifoniied Ilim. that fhe land lady has passed awa;i' aiid he has buiied her dead body m. a ditch under coal powder. Confessional part of Diaesh T'iwari (PW-14) reads as : W3TT <t qsr^ <S5T R) ~£K illdlrq»»!^pf q^ft t sft^ q?6T fe ?RIT ^ SRx ^sT^ 'iat^ §S ^res '4' CTTCT %t sTp? q^ *^dl ~^W V 3fq» feff ^l As per his evidence (PW-14 Duiesh Tiwari) appeUaat has m.ade the foUowiag extra judicial confession: (Tq SFT^T'ft ^ <S?T fe ^S-fS ITR^? <^ R)'{ft ^ fC]yqi.s ^' ^'^ felT t 'Rfl'ti<^1 rtT?T ^st ^' pira^ qre^ ^ 3?^? %3TT 'ei^1} ^re^ '? ;sra teii ^i 3lt? ^tqw ^V ^ ^XT f^IT ^.i SfN l^ <5?T l^ q? ^TU fetft <jit ^rar ^T lict'TT ^ri^ i -aiN q? ift <s?i f^? ?f qr'it' ^ sraTqr 1^'ift sjt^ <i)t q? <ItI ^TT-SiU ot 4' dt SR? uTre^TT ^ 'gtft <st 'HTST ^' ^ As per evidence of Bhagwantm. (PW-15) appeUaiit has aiade foUowiag extra judicial confession : rnfift ^ qg ift ~^gf fS; TTP?^ ^A qit q;t$ ITR^)^ fty<<i^ '^' T^'^) f^IT t I fe^ ^' fffi'a'f ^sn ^ vs^ i^s ^i 16. If the aforesaid confessioual part relating to admission of the guflt is adinitted as a gospel trufh fh.cn only iaference would apFeUant has buried her dead body iu a ditch under coal powder, but it woiild not be possible to iufer fhat fhe appeUant has coiniaitted hoinicidal deafh and fhereafter, buried fh.e dead iii a ditch, uiteralia appeUaut has ofiered explanation at fhe first iastaxtce that soine oftier person has killed ftie deceased. Definitely, extra judicial confession is adniissible in. evidence aad is sufficieat for drawing an inference fhat the'appeUant has niade extra judicial confession relatuig to coianussion of offence aad conceaknent of tbe 'evidence of crrmiiial case punishable uiider Sectiou 201 offhe IPC. As is held in Uie matter of Raaa Chaadra (supra), the appeUan.t has not niade an}~ retracted confession for com-mission of inurder aud fhis fact is distuiguishable froiu tlie fact of fhe presenf case. Present appeUant bas not inade any extra jndicial confession before DiueshTiwari (PW-14) and Bhag\vaatia (PW-15) relating to coiuiliission of culpable homicide amounting to imirder of Gayatri, bizt has taade extra judicisl confession of concealing ttie evidence of criminal case ie. he ts.as buried fhe dead body of Gayati~i, who has not died as a i^sult of normal death aad her death was hoiaicidal in nature. Prosecution has not adduced aay other evidence relating to coininissioii of culpable hoinicide amountuig to niurder of the deceased. The evidence adduced on behalfofthe prosecution is uot sufB.cient for drawing aa inference that present appeUaiit bas comiuitted fhe aferesaid offeuce; sam.e is not even priiaa facie suf&cient for. drawuig an. inference fh.at fhe appeUant has com.initted culpable hoiiiicide am.oiuitm.g to luiirder ofthe deceased. 17. While convictiag aiid sentenciag fhe appeUaat under Section 302 of tlie IPC, Court below has not considered tlie alleged extra judicial confession in its entiret;- and ttiereby comruitted fflegality relatiag to conviction of ffae appeUant under -L Section 302 of tlie IPC, but Court below has not coininitted any fflegaJity ia convictmg the appeUaat under Sectioa 201 offhe IPC. Consequently, fhe appeal is partly aUowed. Conviction aud sentencc ofthe appeltant under Section 302 offhe IPC is hereby set aside aad conviction of the appeUaat under Section 20 1 of the IPC is hereby ruaintaiaed. Present appellaat is in custody siace 22.9.2004 i.e. he has coiupleted 6 years and 5 monfhs in ffae custody. The same would be fhe sufficient seatence for fhe offence under Section 201 of the IPC, fherefore, tfae appeUaat is sentenced for fhe custodial period. He be released forfh.witii, if not required ui any other case. ——— —— - — Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge .:.-/'' yw yr'