.-i<"'.<.^ ""'^- „]•, »-5)1^ ••; HIGH COURT OF CHHATTISGARH, BILASPUR D.B: Hon'ble Shri Rajeev Gupta, C.J., & Hon'ble SJiri Sunil Kumar Sinha, J. Criminal Appeal No. 445 of 2002 Chamru Rain Vs. State of Chhattisgarh JUDGMENT -^e.€^ For consideration Sd/- Sunil Kumar Sinha Judge ;<^:-^-^ssn« HON'BLE SHM JUSTICE RAJEEV GUPTA Q. ./ Sd/- ChiefJustice Post for Judgment : 3o/0$/2009 Sd/- SuniIKumar Sinha Judge s.-^» '^^. "f> ^;,..'-' ^*:^...^"" 4^ HIGH CQURT OF CHHATTISGARH, BILASPUR D.B: Hon'ble Shri Rajeev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha, J. Criminal Apneal No. 445 of 2002 APPELLANT Ch'amru Ram, son of Tulsi Ram Bargah, aged about 36 years, Qccupation Labour, Resident of <j. i,"' P.S. Lakhanpur, Distt. Sarguja, (Ambikapur) (C.G.) So '(-o^ RESPONDENT Versus State of Chhattisgarh Through Police Station - Lakhanpur, Distt. Sarguja (Ambikapur) (C.G.) i3r (Appeal under Section 374 (2) of The Code of Criminal Procedyre) Appearance: Mr. Abhay Tiwari, Counsel for the appellant. Mr. Akhil Agrawal, Panel Lawyer, for the State. JUDGMENT (30.06.2009) Following judgment of the Court was delivered by Sunil Kuinar Sinha, J, (1) Appellant Chamru Ram stands convicted u/s 302 IPC and sentenced to undergo imprisonment for life by the Sessions Judge, Sarguja (Anibikapur) in Sessions Trial No.103/2001 on 08thofApril2002. ;ia^^.' '^^;...: Cr.A.No.445/2002 I^;;^^-ar (2) The facts, briefly stated, are as under: Deceased Sumitra Bai was the wife of the appellant. On 07.2.2001, the appellant went to village Kotwar Gyandas (P.W.4) and stated 'that a thief has entered in his house. Gyandas went to Panch ofthevillage namelyJagdish Singh (P.W.l). Gyan Das (P.W.4), Village Patel Rameshwar Prasad (P.W.5), Alam Sai (P.W.12), Jai Singh, Viphal Das (P.W.10) and many other villagers went to the house of the appellant. The appellant was present near his house. They asked him about the thief, on which, he stated that the thief is inside the house. At that time, the doors of the house were closed. The doors were opened, they entered into the house and saw that there was no thief in the house. However, the dead body of the wife of the appellant was there. Blood stains were also present near the dead body. When they asked to the appellant, he made extra judicial confession before them that he has killed his wife. ^? ^y The matter was reported to the concerned Police Station by Jagdish Singh (P.W.l), on which, a First Information Report (Ex.P.l) was registered. The Investigating Officer reached to the scene of occurrence, gave notice (Ex.P.3) to the Panchas and prepared inquest (Ex.P.4) on the body of the deceased. The dead body of the deceased was sent for post mortem to Community Health Center, Udaypur, where the postmortem examination was conducted by Dr. A.R. Jayant (P.W.8) who noticed the following injuries on the body of the deceased: (i) (ii) Contusion 2" x 1" on the left side of the forehead ; There was a fracture of left parietal bone ; (iii) , Burn marks'on the left side of the neck, back and buttocks; and (iv) Contusion 3" x 2" on the rigtit side of the chest. Cr.A.No.445/2002 The autopsy surgeon opined that the cause of death was hemorrhage due to fracture of skull bone and it was homicidal in nature. In further investigation, a memorandum of the appellant under section 27 of the Evidence Act (Ex.P.5) was recorded and a Danda, one petty-coat and one blouse were seized at the instance of the appellant under Ex.P.6. Blood stained soil, plain soil and broken pieces of bangles were seized from the place of occurrence under Ex.P.7. The'site plan was prepared under Ex.P.8. \. After completion of the usual investigation, the charge sheet was filed in the Court of Chief Judicial Magistrate, Ambikapur, who in turn committed the matter to the Sessions Judge, Ambikapur, who conducted the trial and convicted and senteneed the appellant, as aforementioned. w (3) Admittedly, there are no eye-witnesses in this case and the conviction of the appellant is based upon the circumstantial evidence. The learned Sessions Judge has mainly relied on the circumstance of the extra judicial confession made by the appellant before the villagers including Jagdish (P.W.l), Gyan Das (P.W.4), Rameshwar (P.W.5) and Viphal (P.W.10). Mr. Abhay Tiwari, leamed counsel appearing on behalf of the appellant has not disputed the homicidal death of the deceased. Moreover, it, comes in the evidence of Jagdish (P.W.l), Gyan Das (P.W.4) and Viphal (P.W.10) that they had gone to the house o'f the appellaht and had seen the dead body of the deceased lying inside the house and the appellant made exfra judicial confession before them that he has killed his wife. r?ti Cr.A.No.445/2002 ^ ^•^.^' The autopsy surgeon found 4 external injuries on the body of the deceased and opined that the cause of death was hemorrhage due to fracture of skull bone and it was honiicidal in nature. Therefore, it was established that the death of the deceased was homicidal in nature. (5) Mr. Tiwari argued that the evidence of extra judicial confession is not reliable •and'/the same is not corroborated by any other svidence, therefore,' no reliance can be placed on the evidence of these witnesses. On the other hand, Mr. Akhil Agrawal, leamed Panel Lawyer appearing on behalf of the State opposed these arguments and supported the judgment passed by the Sessions Judge. (7) We have heard learned counsel for the parties at length and have also perused the records ofthe Sessions Court. (8) In State of U.P. -Vs- M.K. Anthonu {1985) 1 SCC 505, the Apex court held that there is neither any rule of law nor of prudence that evidence fumished by extra judicial confession cannot be relied upon unless corroborated by some other credible evidence. The courts have considered the evidence of extra judicial confession a weak piece of evidence. if the evidence about extra judicial confession comes from the mouth of witness/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 ^?'^??-?'^-. "T'^ ; \- \^- /•' ^' Cr.A.No.445/2002 -^sWS^ ^-'^^:::^-' g) have a motive for 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, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility if it passes the test, the extra judicial confession can be accepted and can be the basis of a conviction, in such. a situation to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. If the evidence of exta-a judicial confession is reliable, trustworthy and beyond reproach the same can be relied upon and a conviction can be founded thereon." i (9) Now we shall examine the evidence on the point of extra judicial confession. (10) Jagdish (P.W.l) was a Panch in village Panchayat. He deposed that on the fateful day at about 10 a.m., Kotwar GyanDas (P.W.4) came to his house and said that Chamru Ram is calling him, as a thief has entered in his house. He along with Kotwar, Patel Rameshwar Prasad, Alam, Jai Singh and many other villagers went to the house of Chamru Ram. Chamru was present there." They asked as to where is the thief, on which, Chamru stated that the thief is inside the house. At that time, Chamru was outside his house. Thereafter, all of them went inside the house. There was no thief in the house, ,but the wife of Chamru Ram. namely Sumitra Bai was lying in '^^ ^' !;~:Sp?' :-'^ ajEi Cr.A.No.445/2002 the verandah. She was dead. They saw a burn injury on her back. They asked the appellant as to how his wife has died, on which, he stated that somebody has killed his wife and ran away. He was declared hostile by the prosecution and thereafter in the very first paragraph of his cross exaniination, he admitted that Chamru Ram made extra judicial confession before them that he has killed his wife. ' ! (11) Gyan Das (P.W.4) is the Village Kotwar. He also deposed that when they entered into the house of the appellant they saw that his wife was lying dead in the house. When they asked about all this, the appellant made extra judicial confession before thern saying in clear words that he has killed his wife. In the cross examination, tie denied the suggestion that the appellant did not make any such statement before fhem. This witness has been put to 'a lengthy cross examination by the defence, but the defence has not been able to elicit any such circumstance on which either the credibility of this witness may be doubted or it may be said that he is falsely implicating the appellant in crime in question. (12) The other witness of extra judicial confession is Viphal (P.W.10), but he did not support the case of prosecution on the point of extra judicial confession. He only deposed that when he went inside the house of the Eippellant, he saw that the dead body of his wife was lying in his house. She has sustained -', injuries o.n.chest, arms and hands. ^^saE-ns., ^y ..?rw;3t. " ... -r'"t!t '^%E-^ ^s^ Cr.A.No.445/2002 (13) Rameshwar Prasad (P.W.5) was the Village Patel. He has also not supported the case of prosecution on the point of extra judicial confession. However,he deposed that he had seen the dead body of the deceased inside the house and the appellant did not explain as to how she died. (14) Admittedly, Rameshwar Prasad .(P.W.5) and Viphal (P.W.10) have not supported; the case of prosecution on the point of extra judicial confession, but it has been fully supported by Gyan-Das (P.W.4) and Jagdish Singh (P.W.l). In appreciation, We find that in fact the appellant made exta-a judicial confession to these witnesses on the very next moming of the incident. (15) The most incriminating circumstance is that the deceased died homicidal death having many injuries on her body and the dead body of the deceased was found in side the house of the appellant. (16) No doubt, in a criminal case, initially, the prosecution is required to establish the ingredients of fhe offence and then burden shifts on the accused to discharge his burden by cross examining the prosecution witnesses or by adducing his evidence to show that haw the murder of the deceased was committed or to prove his innocence, as the case may be. In the present case, the prosecution was able to discharge its burden, whereas, the appellant was not able to dischEirge his burden which was on him as per the provisions. of Section 106 of The ~'^y%^^. Cr.A.No.445/2002 Evidence Act. Even no explanation was offered in his statement u/s313 Cr.P.C. \ (17) In Trimukh Maroti Kirkan -vs- State pf Maharashtra, 2006 AIR SCW 5300 interpreting the provisions of section 106 ofthe Evidence Act, the Apex Court held as follows: :--SJ!S ........ if.,an offence takes place inside ^f. the privacy of a hotise and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Court. A Judge does not preside- over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases 6f circumstantial evidence. The burden would be of comparatively lighter character. In view of S. 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give a cogent explanation as to h.ow the crime was coniraitted. The inmates of the house cannot get away by simply keeping quiet and' offering no eXplanation on the supposed premise that the burden to establish its case lies entirely upon £heprosecution and there is no duty at all on an accused to offer any explanation. In -8i® Cr.A.No.445/2002 case of no explanation or false explanation it would because an additional link in chain of circumstances." (18) Further in Stute of Rafasthan Vs. Kashi Ram 2006 AIR SCW 5768, the Apex Court held that: E3Ss» Whether-an inference ought to be drawn under Section 106 is a question which must be deterrained by reference to facts proved. It is ultimately a niatter of appreciation of evidence and, therefore, each case must rest on its own facts. The respondent, accused having been seen last with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by S. 106 of the Evidence Act. This circumstance, therefore, provides the missing link in the chain of circumstances which prove his guilt beyond reasonable doubt. The Court further held that: .......The Principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in l.aying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactoiy. If he does so he raust be held to have discharged his burden. If he fails to offer an explanation on the basis of fafcts within his special knowledge, he fails to discharge the i^.i l^'^^s^ 10 Cr.A.No.445/2002 burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the hile that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theoiy or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd'scdse reported in AIR 1960 Madrcis 218. (19) In the present case, firstly we take that the appellant has given explanation by way of extra judicial confession made before many villagers including Gyan Das (P.W.4) and Jagdish (P.W.l) whom we have held to be reUable. Even assuming the said evidence to be nonest by relying on the contention of the counsel for the appellant that the appellant did not make extra judicial confession before fhe villagers, then the position would be that he did not offer any explanation as to how the deceased died a homicidal death inside his house. Therefore, this was an incriminating circumstance proved against the appellant. (20) In view of the above evidence on record, we find that the conviction of fhe appellant is based upon cogent', reliable and ,^' ,f€3 tt' •ff^s^ ^ ^. ^^7J "^, '^y-'' ^f' ^.-^-^ ^-^~ ~"iL-^:Ki^:"y^' 11 Cr.A.No.445/2002 5; clinching circumstantial evidence and fhere is no illegality or infirmity in the judgment of conviction and order of sentence passed by the learned Sessions Judge. (21) We do not find any'merit in the appeal. The same is liable to be and is accordingly dismissed. Sd/- ChiefJustice Sd/- ii Kusiiar Sinha Judge Rao —\'