HIGhLCQURT OF CHHATTISGARH, DIVISION BENCH CORAhfl: HON'BLEMR.T.P.SHARMAAND HON'BLE MR. R.L. JHANWAR, JJ. CrimmaLA^peaUlo,775of^005 Bhuneshwar @ Aata - Versus - State of Chhattisgarh JUDGMENT R3R CONSIDERATiON ^M-^ HON'BLE MR. JUSTICE R.L. JHANWAR Judge Sd/- R.L. Jhanwar Judge th Post for oronouncement of iudament on 28"' January, 2011 Sd/- T.P. Sharma i? ,f ./ ^ HIGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BL^WIR. R.L. JHANWAR, JJ. APPELLANT: (InJail) Criminal ApReal No.775 of2005 Bhuneshwar @ Aata S/o Manohar Kdshwaha, aged 26 years, R/o Village Bakalo(Bhathapara), Police Station Darima, District Surguja (C.G.) 1 ...'•. ' • ' ' • . . VerAjs State of Chhattisgarh RESPONDENT: {Appeal underSection 374 (2) of the Code of Criminal Procedure, 1973} Present: Mr. H.B. Agrawal, Senior Advocate with Mrs. Meera Jaiswal, Advocate for the appellant. Mrs. Madhunisha Singh, Panel Lawyer for the State/respondent. JUDGMENT (Delivered on 28th January, 2011) The followina judament ofthe Couri:was passed byJ'.P.Aharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 7-9-2005 passed by the Sessions Judge, Surguja (Ambikapur) in Sessions Trial No.2/2005, whereby & whereunder learned Sessions Jydge after holding the appellant guilty for commission of culpable homicide anounting to murder of Jawahar Kushwaha, convicted the appellant underSection 3Q2 ofthe IPC and sentenced him to undergo imprisonment for life. 2. Conviction is impugned on the ground that without any iotaof evidence, the trial Court hasconvicted & sentenced the appellant and thereby committedillegality. '' i'fe.^jliS, % .sf '"•"'"^^••.^'::"' . :2 ;:; .^:;.!1::?' ;:^ 3. As per case of the prosecution, on the fateful day of 1-11-2004 between 10 & 11 a.m. Jawahar Kushwaha (since deceased)was talking with childreh & wife of the apptellant who is his nephew, the appellantcame V, ''"..' • . insidethe room and repeatedly assaulted him by heavy wooden plank (gecfa) and caused fataj injuries as a result of which he became unconscious. Immediately, wife ofthe deceased namely Jagmania Bai (PW-4) present near the place of incident went to Police Station Darima along with her son Bhushan (PW-5) and lodged roznamcha vide Ex.P-7. ^:. Police came to the spot and took the injured to hospital for treatment. During thecourse oftreatment at Ambikapur, Jawahar died on same day at about 9.30 p.m. Merg was intimated by District Hospital, Ambikapur to Police Station Ambikapur vide Exs.P-13 & P-14samewas recorded as Ex.P-15. Finally, merg was recorded vide Ex.P-16 by Police Station Darima and FIR was recorded vide Ex.P-19. After summoning the witnesses vide Ex.P-8, inquest over the dead body of the deceased was prepared vide Ex.P-9. Spot map was prepared by the Investigating Officer vide Ex.P-10. Patwari also prepared spot map vide Ex.P-11. ••I • Dead body of Jawahar was sent for autopsy to District Hospital, Ambikapur vide Ex.P-27. Dr. V.K. Shrivastava (PW-3) conducted autopsy vide Ex.P-5 and found following injuries: - (1) Four linear abrasions 2" length at anterior aspect of neck. (2) One abrasion 1 c.m. x V-i c.m. oblique at rightshoulderjoint. (3) Six abrasions at back approximate size 3" x 1" (4) Two abrasions 1 c.m. x1 c.m. at posterior aspect of left elbow joint.' (5) Diffuse swellingand'tenderness present at left foot, on dissection fracture of 2 & 3 metacarpal bone was found. (6) Multiple smallabrasions at left arm and shoulder joint. (7) Multiple small abrasions overlateralaspect of left lowerlimb. (8) One lacerated wound 2" x %" x bone deepat posterjor aspect of vault, on dissection fracture of 2" length linearextended in both 1 'i'IIIESnlS 3 . fa5 parietal bone was found. Clotted blood was present beneath bone. Subdural and intracerebral haemorrhage was also present. (9) Diffuse swelling on leftfore arm was found. Cause of death was as a result of head injury. Plain soil and \ bloodstained soilwere recovered form the spot vide Ex.P-1. During the course of investigation, the accused was taken into custody. He made discloser statement of wooden geda vide Ex.P-3 and same was recovered at his instance vide Ex.P-2. Wooden plank geda was examined by the doctor vide E^P-6. Statements of the witnesses were l1'1 recorded under Section 161 of the CrPC. Seized articles weresent for chemiGal examination vide Ex.P-23 and presence of blood on wooden geda was confirmed vide Ex.P-25. 4. Aftercompletion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Ambikapur who committed the case to the Court of Sessions, Ambikapur, where the trial was conducted. 5 Inorderto prove the guilt of theappellant, the prosecution has examined as many as thirteen witnesses. The accused was examined under Section 313 of fhe CrPC in which he denied the circumstances appearing against him, pleaded innocence and false implication. •i 6. After affording opportunityof hearing tothe parties, learned Sessions Judge convicted and sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment and record of the trial Court. 8. Learned Senior Advoeate appearing on behalf of the appellant vehemently argued that conviction of the appellant is solely based on the evidenGe of Jagmania Bai'(PW-4) - wife of the deceased and Bhushan (PW-5)- son ofthe deceased who are interested and relative witnesses, .sEiSISS!! ;aa!3i!8Sg> 4 {^' their evidence does not inspire confidence, their evidence isnot trustworthy,even they are notpresent at the time of incident and their evidence is contradictory to each other. On the basis of aforesaid evidence.convictionoftheappellantis notsustainableunder thelaw. 9. On the other hand, learned State counsel opposed the appeal and submitted that conviction of the appellant is basedon the evidence of Jagmania Bai (PW-4) and Bhushan (PW-5), they are relatives of the deceased as also of the appellant. The appellant and the deceased' ..l^ : : were relatives, theywere uncle & nephew. Conviction is also based on theextra judicial confession made by theappellant before Heeralal (PW- 6). Evidence adduced on behalf of the prosecution is sufficient for drawing inference that the appellant has caused homicidal death of the deceased with intent to cause his death and the trial Court has rightly convjcted and sentenced the appellant. 10.1n ordertoappreciate the arguments advanced on behalf of the parties, we haveexamined the evidence adduced on behalf ofthe prosecution. 11. In the present case, homicidal death of deceased Jawahar as a result of fatal injuries found on his person has not been substantially disputed on behalfofthe appellant, otherwise also it isestablished bytheevidence pf Dr. V. K. Shrivastava (PW-3) and autopsy report Ex.P-5 that death of the deceased is homicidal in nature. I : : • . •' : ' ~ 1 12.As regards complicity of the app^llant inthe crime in question.conviction issubstantially based on the evidence of eyewitnesses Jagmania Bai (PW-4) & Bhushan (PW-5) and the extrajudicial confession made bythe appellant before Heeralal (PW-6). 13.As perevidenceofJagmania Bai (PW-4)& Bhushan (PW-5),on the fateful day both the persons were working.near the place of incident i.e. 1 t.&y%i '^ •'UaBBi^ |j''911}'^g 5 C^ near the house of the appellant, deceased Jawahar was present in the house of the appellant, he was talking with daughter & wife of the appellant and, therefore, the appellant assaulted Jawahar bystick and caused repeated injuriess After hearing the sound of assault they reached near the place ofincident and also heard the sound ofJawahar whowas saying, "Don'tbeat". Thereafter, Jagmania Bai (PW-4) wentto the policestation and lodged roznamcha vide Ex.P-7 onwhich police eameand took herhusband whowas badly injured, to the hospital where he died. Defence has cross-examined these witnesses at length in which they have specifically deposed that on the fateful day they were working near the plaee of incidentand the appellant assaulted Jawahar inside the room, then Jagmania (PW-4) went to the policestation for lodging report. Bhushan (PW-5) has deposed in para 7 of his cross- examination that he has tried to intervene, but theappellant threatened him also. Heeralal (PW-6) has deposed in paras 1, 2, 3 & 9 of his evidence that the appellant made extra judicial confession before him thathe has assaulted his uncle Jawahar and hascaused fracture of his hand. 14.Jagmania (PW-4) & Bhushan (PW-5) are relatives of the deceased namely, wife& son, respectively, but their evidencecannot bediscarded onty on the ground of thejr relationship with the deceased. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocentperson. 15.While dealing with the question of evidentiary value of the relative witnesses, the Supreme Court in the matter of Dalip Singh and others v. The State of Punjab has held that a witness is normally to be -1AIR 1953 SC 364 .-.-•^".^a iiSIBiS.ii F.f.A-.-^i^S^^.ii 6 C ^>' considered independent unless he or she springs from sources which are likely to be tainted. Para 26 of the said judgment readsas under:- "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to Wish to implicate him falsely. Ordinarily, aclose relation'would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that thrire is a tendency to drag in an innocent person against whom awitness hasa grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Oyr observations are only made to combat what is so ofteh put forward in cases before us as a general rule of prudence. There isno such general rule. Each case must be limited to and be governed by its own facts." 16.Extra judicjal confession is also evidence and once if it is proved to be true, same can be made basis for conviction of the accused. While dealingwith evidentiary value of extra-judicial confession made under, Section 24 of the Evidence Act, the Supreme Court in the matter of Baldev Singh v, State of Punjab has held that extra-judicial confession is generally ofweak typeof evidence. No conviction ordinarily can be based solely thereupon unless same is corroborated in material particulars. 2 2009 AIR SCW 3730 tE'«:!Es8Sai$8 7 : (21 17.While dealing with same question, the Supreme Court in the matter of Mohd. Azad @ Samin v.State ofWest Bengal has held thatif extra- judicial confession made voluntarily and truth in a fit state ofmind then it can be relied upon andconfession will nave to provelike in any other evidence. Para 22 of the said judgment reads as under- "22. An extra-judicial confession, if voluntary and true andmade in a fft 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 eviderice, depends upon the veracity of the witness towhom-it has been made. The valueofthe evidence as to the confessiondepends on the reliability of the witness who givesthe evidence.It is notopen 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 tosuch 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 respectof whomnothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spokento by thewitness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may )nilitate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judidal confession can be acceptedand can be the basis of conviction if it passes the test of credibility" 3 2009AIR SCW 752 ^iii!;' s !8 ' ! . ' '.. ' . 18.In the present case, thetrial Court has considered the evidence of eyewitness and extra judicialconfession. Evidence of eyewitnesses and extra judicial confession inspire confidence, they are trustworthy and are safe to rely upon, Evidenbe adduced on behalf of the prosecution is sufficient for drawing inference that theappellant has caused homicidal death of deceased Jawahar. 19.As regardsthequestion of motive, motive only aids incriminality and in case of direct evidence itloses its importance. Motive can be inferred on 'i.1-. • "' • ' ' • • :'• . •.' . •.' the basis of the weaponused, partofthe body effected, natureof injury and other similar circumstances. 20.1n the presentcase, although the appellant has caused injuryto his uncle on the ground that he was talking with his wife and daughter, but the injuries found overthe body of the deceased show that the appellant has causedinjuries mercilessly and has caused fracture of his left hand and also fracture of head. Thisshows brutal act of the appellant which is sufficient for drawing inference that the appellant has caused homicidal death of Jawahar with intent to cause his death. Conviction & sentence imposed upon the appeltant are based on credible and reliable evidence, sustainable under the law. 21 Qn close scrutiny of evidence, we do not find any illegality inthe judgment impugned. Consequently,the appeal is dismissed^__—— Sd/- T.P. Sharrna Judse Sd/- R.L. Jhanwar Judge Soma