HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 714 of 2007 DIVISION BENCH^ Coram: Hon'ble Mr.T.P.SHARIVIA & Hon'ble Mr-. R.N. Chandrakar, JJ. ;i?^^^!l APPELLANT (In Jail) Samlelal Kanwar, s/o. Sunder Sai Kanwar, aged about 47 years, r/o. Khajur Para, Korbi, P.S. Pasan, Tahsil Katghora, Distt. Korba (CG). Versus RESPONDENT State of Chhattisgarh, through DM Korba (CG). (CRMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973) Present: Mr. V.K. Pandey, counsel for the appellant. Mr. Ashish Shukla, Govt. Advocate for the State. JUDGMENT (Delivered on 18-10-2011) PerT.P.Sharma,J.:- 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 28-7-2007 passed by the Additional Sessions Judge, Katghora, District Korba, in Sessions Trial No. 55/2005, whereby & whereunder learned Additional Sessions Judge after holding the appellant gyilty for commission of culpable homicide amounting to murder ofBudhawaro Bai and Sirpal Singh convicted him under Section 302 ofthe I.P.C. and sentenced him to undergo imprisonment • for life and fine of Rs.2000/-, in default of payment of fine to further :'»" ,^S!*!S,A '':^\\ :'!sft'~,SS'st ;! :S;.f»| ;; -^w^' undergo R.l. for two years on each count. Both the sentences are directed to run concurrently. 2. Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted and sentenced the appellant as aforementioned and therefciy committed illegality. 3. As per case of prosecution, on account of some dispute regarding field, appellant assaulted Budhwaro Bai and Sirpal Singh by axe on 27-3-2011 betweeh 12 noon- - 1.00 p.m and caused their instantaneous death near Mygatti Tikra Ghat, Kajurpara, Korbi on the bank of Hasdeo River. Appellant made extra judicial confession before Jaglal (PW/1), Sukhiram (PW/5), Chandan Singh (PW/8), Savitri Bai (PW/11), Omnarayan (PW/14) and Suraj Pratap (PW/19). Incident was also informed by Chaitram to PW/1 Jaglal, who went to Police Outpost Korbi and lodged first information report vide Ex.P/1 which was subsequently forwarded to Police Station Pasan where FIR was registered vide Ex.P/1-A. Investigating officer proceeded for scene of occurrence and after summoning the witnesses vide Ex.P/3 & P/5 inquest over dead body of deceased were prepared vide Ex.P/4 & 6, spot map was prepared vide Ex.P/7, blood soil and plain soil were recovered from the spot vide Ex.P/15, dead body of Sirpal Singh was sent for autopsy to Primary Health Centre, Podi vide Ex.P/18-A where Doctor Pushpalata (PW/15) conducted autopsy vide Ex.P/18 and found the foHqwing injuries (i) Incised wound over occipital region of 2 x 2 cm. (ii) Incised wound over left occipital region 4x3x1 cm with depressed fracture of internal bone and cut injury on brain ^t ffia^-NB KSf •^sl^Ss^S and opined that mode of death was shock and death was homicidal in nature. 4. Dead body of Budhwaro Bai was sent for autopsy to Primary Health Centre, Podi vide Ex.P/19-A where Doctor Pushpalata (PW/15) conducted postmortem and found the following following injuries. i) incised wound over left side in frontal bone of2 cm x 2 cm; ii) stab wound of1 cmx 1 cm between both eye-brows; iii) incised wound over left side of parietal region of 7cm x 3cm with depresse9 fracture of bone and opined that mode of death"»)was shock and death was homicidal in nature. 5. During course of investigation, appellant was taken into custody and he made a disclosure statement of axe vide Ex.P/13 and the same was recovered at the instance ofthe appellant vide Ex.P/14 along with other blood stained clothes of the appellant. Seized articles were sent for chemical examination to FSL, Raipur vide Ex.P/25 and presence of blood over seized articles including clothes of appellant was confirmed vide Ex.P/26. 6. Statements ofthe witnesses were recorded under Section 161 ofthe Code of Criminal Procedure, 1973 (for short 'Code') and after completion of investigation charge sheet was filed before the Judicial Magistrate First Class, Katghora, who in turn, committed the case to the Court of Sessions, Korba. 7. In order to prove the guilt of the accused/appellant, prosecution has examined as many as 20 witnesses. Accused/appellant was examined under Section 313 of the Code where he denied the V: ">;,t.ies'!ii3& .iflSSiiia circumstances appearing against him and claimed innocence and false implication in crime in question. 8. After affording an opportunity of hearing to the parties, learned Sessions Judge, Raipur, convicted and sentenced the appellant as aforementioned. 9. We have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial Court. 10. Learned counsel for the appellant vehemently agued that initially case was based on evidence of eye-witnesses but eye-witnesses have not supported the case of prosecution, then the appellant has been convicted on the basis of extra judicial confession. The factum of extra judicial confession made by the appellant before the witnesses does not inspire confidence and trustworthy. Extra judicial confession is a weak type of evidence and unless it is proved that the same was voluntary, conviction cannot be sustained on the basis of such extra judicial confession. He further submits that there is inconsistency between the evidence of extra judicial confession and medical evidence, especially relating to stab wound found over the body of Budhwaro Bai. In case of circumstantial evidence, prosecution is required to prove motive for commission of offence. In the present case, prosecution has utterly failed to prove the motive for commission ofoffence. 11. On the othier hand, Mr. Ashish Shukla, learned Govt. Advocate forthe State vehemently opposed the appeal and submits that conviction is - substantially based on evidence of Jaglal (PW/1), Sukhiram (PW/5), ;U:ais»B Chandan Singh (PW/8), Savitri Bai (PW/11), Omnarayan (PW/14) and Suraj Pratap (PW/19) before whom the appellant made voluntarily extra judicial confession. Extra judicial confession is also one kind of evidence and once it is proved to be voluntarily, the same is sufficient for conviction of the accused. This is a case of double murder on the ground of disputed property of field and the appellant has brutally committed murder of husband and wife. After appreciating the evidence available on record, the trial Court has rightly convicted and sentenced the appellant as aforementioned. 12. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. 13. In the present case, homicidal death as a result of fatal injuries found over vital parts of Budhwaro Bai and Sirpal Singh has not been substantially disputed on behalf of the appellant, even otherwise, it is also established by the evidence of Dr. Pushpalata (PW-15) and autopsy reports Ex.P/18 & 19 that there was one stab injury in the mid line of both eye-brows of 1 cm x 1cm which shows that this was incised wound and might have been caused by single stroke of axe upon frontal part of the head i.e., forehead and the death of Budhwaro Bai and Sirpal Singh was homicidal in nature. 14. As regards the complicity of the accused/appellant in crime in question, cbnviction is based on the evidence of Jaglal (PW/1), Sukhiram (PW/5), Chandan Singh (PW/8), Savitri Bai (PW/11), Omnarayan (PW/14) and Suraj Pratap (PW/19) before whom the appellant made. extra judicial confession that he has killed deceased ^u Budhwaro Bai and Sirpal Singh by axe near Margatti Tikra Ghat. As per case of prosecution, the incident took place at Hasdeo river which is far way from the village. After commission of offence, appellant came to the village and informed the villagers i.e., the aforesaid witnesses that he had killed Budhwaro Bai and Sirpal Singh. Defence has cross-examined these witnesses at length but they have specifically deposed in their evidence that appellant has made voluntarily extra judicial cpnfession before them that he had kilted Budhwaro Bai and Sirpal Singh. Extra judicial confession is also a kind of evidence and if it is established that the appellant has made voluntarily extra judicial confession, then the same may be sufficient for conviction of the appellant for commission of offence. 15. The evidence of the aforesaid witnesses clearly reveals that the appellant himself came to the aforesaid witnesses and made extra judicial confession before them. This is not a case where being asked the appellant has made extra judicial confession in reply of question, but appellant has voluntarily made extra judicial confession before the aforesaid witnesses. 16. While dealing with question of 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 a weak type of evidence. No conviction ordinarily can be based solely thereupon unless same is corroborated in material particulars. '2009 AIR SCW 3730 .,.'"-:sai ,1»'-:')> "^. '^., ^ 17. While dealing with the same question, the Apex Court in the matter of Mohd. Azad @ Samin v. State of West Bengal has held that if extra-judicial confession made voluntarily and truth in a fit state of mind then it can be relied upqn and confession will nave to prove like in any other evidence. Para 22 of the said judgment reads as under:- "22. An extra-judicial confession, ifvoluntary and true 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 aoy other evidence, depends upon the veracity ofthewitness to whom it has been made. The value of the:; evidence as to the confession depends on the rri||ability 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, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may 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 eredibility, the extra-judicial confession can be accepted and can be the basis of conviction if it passes the test of credibility" 18. If we examine the evidence of the aforesaid witnesses and in the light of aforesaid touch stone of law, then it will be clear that the appellant has made voluntarily extra, judicial confession before the aforesaid witnesses and there is no cause for disbelieving the evidence of aforesaid witnesses. 22009 AJK SCW 752 ^^~~^\ /'/""'^ lb*.;ci.^^ I '^iggi»% g ¥i, . S ^ '"!:,. 'tf^/ "!>»1CT;.S"*' !t>S!! '^•4^y^a'l; 19. After appreciating the evidence available on record and considering the extra judicial confession made by the appellant voluntarily, leaned Additional Sessions Judge has convicted and sentenced the appellant as aforementioned for commission of murder of two persons. 20. On close scrutiny of the evjdence, we do not find any illegality or infirmity in the judgment of conviction and order of sentence. 21. Consequently, the appeal being devoid of merit is liable to be dismissed and it is hereby dismissed. Sd/- T.P.Sharma Judee Sd/- R.N. Chandrakar Judge :a'i.i