HIGH COURT OF CHHATTISQARH : BILASPUR DIVISION BENCH: HON'BLE SHRI T.P.SHARMA AND HON'BLR SHRI R.L.JHANWAR. JJ. Criminal Appeal No.517/2004 APPELLANT fin iail) RESPQNDENT Bhujbal, S/o Shri Somaru, age 40 years, resident of village Choughada, Police Station & Tahsil Manendragarh, Dist. Korea (C.G.) VERSUS The State of Chhattisgarh, Through P.S. Manendragarh, Tahsit Manendragarh, Dist. Korea (C.G.) CRIMINAL APPEAL UNDER SECTION 374 (21 OF THE CRIMINAL PROCEDURECQDE Appearance; Mrs. Savita Tiwari, counsel for the appellant. Shri S.R.J.Jaiswal, P.L forthe State. JUDGMENT (Passedon 30.08.2010) Per T.P.Sharma. J. The challenge in this appeal is to the judgment of conviction and order of sentence dated 24.05.2004 passed in S.T.No.318/2003 by the Additional Sessions Judge, Manendr^garh, Dist. Korea whereby and whereunder after holding the appellant guilty for commission of culpable homicide amounting to murder of Shantibai wife of Shivprasad, Suntibai wife of Ramprasad and Shantibai wife of Bodhanram, the Court below simultaneously convicting the appellant under Section 302 ofthe I.P.C. for triple murder and under Section 324 of the I.P.C. for causing injury to Shivprasad sentenced the appellant to imprisonment for life with defautt of Rs.500/-, Rs.500/- and Rs.500/- and in default to undergo 5 months R.l, concurrently underSection 302 ofthe I.P.C. ® '^' 2. The conviction is impugned on the ground that the Court below has convicted and sentenced the appellant only on the basis of conjectures and surmises not sufficient for convicting the appellant for triple murder as aforementioned and thereby committed illegality. 3. Brief facts of the prosecution story are that on 24.6.2003 at about 10.00A.M. in the morning on account ofland dispute the appellantcaused fatal injury to Shantibai wife of Shivprasad, Suntibai wife of Ramprasad and Shantibai wife of Bodhanram by axe and caused their death. While the appellant was coming towards Hazari Chowk, he saw Shivprasad, husband of deceased Shantibai and assaulted him by axe and made extra judicial confession before Shivprasad and P.W.1 Alimuddin that he has killed wife of Shivprasadn and other two women. Immediately, P.W.2 Shivprasad went to his house and thereafter went to Police Station and lodged First Information Report vide Ex.P.20. Merg was recorded vide Ex.P.21, Ex.P.22 and Ex.P.23. After summoning the witnesses, inquest over the dead bodies of Shantibai wjfe of Shivprasad, Suntibai wife of Ramprasad and Shantibai wife of Bodhanram was prepared vide Ex.P.8, Ex.P.9 and Ex.P.10. Dead bodies of above deceased weresent for autopsy to Community Health Center, Manendragarh. Autopsy on dead body of Suntibai, wife of Ram Prasad was conducted vide Ex.P.15 by Dr. S.N.Gupta P.W.9, who found the following injuries: 1. Incised wound of 4"x 2" x deep to subcutaneous over the neck and ear was found cut. 2. Incised wound over the backof the neck was found between 7 & 6 cervical vertebra and would of 2" x 1" x cavity of neck, organs of the were found cut. 3. Incised wound over right side of back, 1" below the back 3" x 1/2"x 4" deep. 4. Incised woundover left side 3" below the back 5"" x 1" x 2". Scapularbone was found cut. Injuries were fatal and cause of death was shock. Death was homicidal in nature. Autopsy on dead body of Shantibai, wife of Shivprasad was conducted vide Ex.P.16byDr. P.K.Rohan P.W.11,whofound thefollowinginjuries: 1. Large incised wound was present over the left temporal region to the leftorbital cavity of 6" x 2 ^" x bone deep. Multipleinjuries ofskull and brain injurywas present. 2. Large incised wound was present on the back of neck and itssizeis6"x1". 3. A lacerated wound on the left side occipitat regional measuring 4" x 2"bone deep. 4. A lacerated wound on the left scapular region, size 3" x 2" bone deep. 5. Two lacerated wound on the right upper arm sizing 3" x 2" bonedeep. 6. Brain tissues were found cut. Injuries were fatal and cause of death was shock. Death was homicidal in nature. Autopsy on the dead body of Shantibai, wife of Bodhanram was conducted vide Ex.P.17 by Dr. P.S.Kurrey P.W.12, whofound the following injuries: 1. Incised wound over neck of2.5" x 1.0" x 2.0". Internal organs of the brain and neck were found cut. Incised wound over neck of 2" x 1" x2". Incised wound over neck of 4" x 2" x 2". 2. 3. 4. Anterior aspect oftongue with clotted blood, size 2" x 0.5" x 0.5". Injuries were fatal and cause of death was shock. Death was homicidal in nature. Accused was taken into custody. He made disclosure statement of broken axe vide Ex.P.1. Blood stained cloths of accused were recovered at the instance of the accused vide Ex.P.2. Broken axe and broken handle of the axe were recovered at the instance of the accused vide Ex.P.3. Blood stained soil and plain soil were seized on the spot vide Ex.P.4 and Ex.P.7. Broken doorwas seized vide Ex.P.5 & 6. Clothes of the deceased were seized vide Ex. P.12, 13 and 14. 4. Statements of the witnesses were recorded under Section 313 of the Cr.P.C. After completiori of investigation, charge sheet was filed before the J.M.F.C. Manendragarh who in turn committedthe case to the Sessions Judge, Korea. The learned Additional Sessions received the case on transfer for its trial. During the course of investigation, photographs of dead body were obtained. Seized articles were sent for chemical examination vide Ex.P.53. Presence of blood over the clothes of the accused and axe was confirmed vide Ex.P.54. ' -I., 5. Inordertoprovetheguiltoftheaccused.theprosecutionexamined as many as 14 witnesses. The accused was examined underSection 313 of the Cr.P.C. in which he denied the circumstances appearing against himand pleaded his innoGence and false implication. 6. After affording an opportunity and hearing of the parties, the learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned. 7. Mrs. Savita Tiwari, learned counsel for the appellant and Shri S.R.J.Jaiswal, P.L. for the State are heard at length. Judgment impugned and recordofthe Court below perused. 8. Learned counsel for the appellant vehemently argued that in the present case the conviction is based on only evidence of P.W.1 Alimuddin and P.W.2 injured witness Shivprasad. The evidence of both these witnesses is not sufficient for connecting the appellant to the heinous offence of triple murder. The prosecution has failed to prove its case against the appellant beyond reasonabte doubt. Therefore, the appellant is entitled for acquittal. 9. On the other hand, learned counsel for the State/respondent opposed the appeal and submitted that this is case of triple murder and caused injury to Shivprassad. The evidence of injured witness P.W.2 Shivprasad and P.W.1 Alimuddin, before whom, the appellant had made extra judicial confession is sufficient for drawing inference that the appellant was only the person who has committed the triple murder. He further argued that this is a case of triple murder and no evidence has brought by the defence in support of its case and on the basis of which he could be saved from capital punishment. 10. In order to appreciate the arguments advanced by the parties, we have examined the evidenceadduced on behalf of the prosecution. In the present case, homiddal death as a result offatal injuries ofShantibai wife of Shivprasad, Suntibai wife of Ramprasad and Shantibai wife of Bodhanram has notbeen substantially disputed on behalfofthe appellant, on the other hand also established by the evidence of Dr. S.N.Gupta •vf ^^ ^ \-^'^ ,'('' ;!,1 P.W.9 and his autopsy report Ex.P.15, Dr. P.K.Rohan P.W.11 and his autopsy report Ex.P.16 and Dr. P.S.Kurrey P.W.12 and his autopsy report Ex.P.17 and death of aforesaid deceased was homicidal in nature. 11; As regards the jnjury foynd on the body of Shivprasad and its nature, as per evidence of P.W.12 Dr. P.S.Kurrey has examined Shivprasad vide Ex. P.18 and found one incised wound over his back of 2" x 3" x 3", one abrasion on left wrist joint region and medial aspect and haematoma at right side of head at parietal region right. Two injuries were caused by sharp edged weapon. 12. As regards the complicity of the appellant in crime in question, the conviction is substantially based on the extra judicial confession made by the appellant before P.W.1 Alimuddinand P.W.2 Shivprasad, injured witness, the evidence of Shivprasad, recovery of weapon and bloodstained cloths atthe instance ofthe appellant. P.W.1 Alimuddin has deposed in his evidence that atabout 11.00 A.M. on the date of incident, he was standing in frontof Mukesh Kirana Stores. The appellant came with case and assaulted Shivprasad by axe and the appellant repeatedly caused injuries. Meanwhile, the handle of the axe was broken then he told to Shivprasad that he is lucky fellow and thereby he is saved and he has killed hjs wife and other two women. Then he went towards police station. P.W.2 Shivprasad, injured witness has deposed in his evidence that he was standing near Hazari Chowk and stationed his rickshaw. At that time, the appellant came with axe and upon seeing the appellant he accosted the appellantand upon this the appellant started hurling abuses to him by saying that he hasjust killed three persons and assaulted him. Though he saved from fjrst blow by obstructing rickshaw but fbr second blow he could not escape and touched his back and at third time the appellant was about to assault, at that time handle of the axe was broken. Then he told that you escaped for the time being but he has killed his wife. Upon hearing this, this witness immediately went to his housewhere he saw the dead body of his wife near the Sad/. Then he went to police station and lodged the report. Defence has cross-examined these witnesses at length but has not been able to elicit anything in his cross- ^ ^ ^^3^s examination to discredit the testimony relating to extra judicial confession madeby the appellant before them and injury caused to Shivprasad. 13. In the present case, present appellant has specificaliy made extra judicial confession that he has killed three women including wjfe of Shivprasad i.e. Shantibai but has not made specific name of other deceased. However, on that day at Manendragarh no other perspns were murderedexcept these two deceased whose dead bodies were lying near the deadbody of Shantibai which fact is sufficient for drawing an inference that the present appellant has killed three persons by causing fatal injuries and has caused injury to Shivprassad. 14. Extra judicial confession, if proved, is sufficient for drawing the definite inference. While dealing with the question of extra judicial confession, the Apex Court in thematter of Baldev Singh v. State of Pun/a6, 2009 AIR SCW 3730 has held that extra judicial confession is general pf weaktype of evidence. No conviction ordinarily can be based solely thereupon unless same is corroborated in material particulars. While dealing with the same question, the Apex Court in the matter of Mohd. Azad @ Samin v. State of West Bengal, 2009 AIR SCW 752 has held that if extra judicial confession made voluntarily and truth in a fit state of mind then it can be relied upon and Gonfession will have to prove like in any other evidence. Para 22 ofthesaid judgment reads as under:- "22. An extra-judicial confession, if voluntary and true and made and made in a fit 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 evidence, depends upon the veracity of the wjtness tb whom it hasbeen 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 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 to such 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, noteven remotely inimical to the accused, and in respect of whom nothing is brought out whichmay tend to indicate that he may have a motive of 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. 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 of credibility". 15. P.W.14 Ravindranath Tiwari, investigating officer has deposed in his paragraph 8 of his evidence that the appellant had made disclosure statement of axe vide Ex.P.1 and at his instance he has seized the axe vide Ex.P.3. He has also seized the blood stained cloths of the appellant vide Ex.P.2 and the same were examined by F.S.L. vide Ex.P.54 and presenceof blood over the axe and cloths was confirmed. The appellant has notoffered any explanation how blood was found over the axe and cloths ofthe appellant. 16. After appreciating the evidence, the learned Additional Sessions Judge convicted the appellant as aforementioned. The conviction of the appellant is based on credible, clinching and legal evidence sustainable under law. The evidence adduced on behalf of the prosecution is sufficient for drawing an inference that the appellant is the person who has committed culpable homicide amounting to murder of Shantibai, Suntibai and Shantibai and has also caused ihjury to Shivprasad. The learned Additional Sessions judge has simultaneously sentenced the appellant for triple murder to lifeimprisonment under Section 302 ofthe I.P.C. and also imposed fine of Rs.500/- separately and in default of which he has to undergo R.l. for one year for triple murder. The learned Additional Sessions has rightly dealt with minimum sentence prescribed. 17. On close scrutiny of the evidence available on record, we do not find any illegality or irregularity in the judgment impugned requiring any interference. 18. Consequently,the appeal being devoid of merit is liable to be and is herebydismissed. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge