(G^. HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 1157 of 2003 Ramlal alias Kharas & another Vs. State of Chhattisgarh (Connected Criminal Appeal No. 1158 of 2003) JUDGMENT HON'BLE SHRI JUSTICE RAJEEV GUPTA For consideration Sd/- Sunil Kumar Sinha Judge Sd/- Chief Justice Post for Judgment ^6/06/2009 /^ Sd/- Sunil Kumar Sinha Judge HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. APPELLANTS RESPONDENT APPELLANTS RESPONDENT Criminal Appeal No. 1157 of 2003 1. Ramlal alias Kharas, Son of Shri Jimmedar Gond, aged about 45 years 2. Ram Singh, Son of Shri Dukhi Gond, aged about 35 years Both resident of village: Duwari, Police Station: Chalgali, Distt. Surguja - Versus State of Chhattisgarh through The Police Station : Chalgali, Distt : Surguja & Criminal Appeal No. 1158 of 2003 1. Mandev, Son of Shri Ghansi Gond, aged about 25 years 2. Rambakas, Son of Thakur Gond, aged about 60 years 3. Rambali, Son of Shri Mansai Gond, aged about 40 years. 4. Prem, Son of Shri Kurli Gond, aged about 30 years All are resident of Vittage: Duwari, Police Station : Chalgali, Distt : Distt. Surguja (C.G.) Versus State of Chhattisgarh through The Police Station : Chalgali, Distt : Surguja (C.G.) (Appeals under Section 374 (21 of The Code of Criminal Procedurel Appearance: Mr. V.K. Pandy, Counsel for the appellants. Mr. Ashish Shukla, Govt. Advocate, for the State. Criminal Apueals No. 1157 of2003 & 1158 of2003 ^ JUDGMENT (30.06.2009) Following judgment of the Court was delivered by Sunil Kumar Sinha. J. (1) Appellants have been convicted and sentenced in the following manner by the Additional Sessions Judge (F.T.C.), Ramanujganj, District Surguja (C.G.) in Sessions Trial No. 277/2001 on 14.10.2003:- Name of the appellant Conviction and Sentence Ramla Ram Singh u/s 302/34 IPC - Imprisonment for life and fine of Rs.10,000/-. In default of payment of fine to further undergo R.l.for6 months. u/s 201/34 IPC - R.l. for 7 years and fine of Rs.5,000/-. In default of payment of fine to further undergo R.l.forS months (Sentences to run concurrently) Mandev Rambakas Rambali Prem u/s 201/34 IPC - R.l. for 7 years and fine of Rs.5,000/-. In default of payment of fine to further undergo R.l.forS months. (2) The facts, briefly stated, are as under:- Deceased Heera Lal was an exorcist (Dewar who practices Jhadfook). He was missing since the evening of 25.5.2001. His wife Soniya Bai (PW-2) lodged a missing report on 28.5.2001. During the investigation of the said report, on 30.5.2001, village choukidar Ramlal (PW-15), Sarpanch Chandradeep Singh (PW-1), Secretary Uday (PW-5) and Om Prakash Jaiswal (PW-10) informed Sub- Inspector, S.P. Pandey (PW-7) that appellant Ramlal had made extra-judicial confession to the extent that he has killed the deceased and the dead body of the deceased has been thrown in 1 the forest with the help of the other appellants. Based on this Criminal Appeals No. 1157 of2003 & 1158 of 2003 information, a merg intimation (Ex.-P/24) and a First Information Report (Ex.-P/25) were recorded. After giving notice (Ex.-P/1) to the Panchas, inquest (Ex.-P/2) on the body of the deceased was prepared and the dead body was sent for its post-mortem to Community Health Centre, Pratappur. The post-mortem examination was conducted by Dr. Narayan Singh Paikra (PW-13), who prepared his report Ex.-P/27. He noticed the fracture of thyroid cartilage as alsoa depressed fracture on the left occipital region. The Autopsy Surgeon opined that the cause of death was coma with asphyxia due to head injury and strangulation leading to cardia respiratory arrest and it was homicidal in nature. ~^'!:"" During the course of ihvestigation, a shawl was seized under Ex.-P/18 which was lying near the body. Plain soil and blood stained soil were seized from the road side by seizure memo Ex.- P/16 and by another seizure memo Ex.-P/17, plain soil and blood stained soil were seized from the place where the dead body was lying. In further investigatioh, memorandum statement (Ex.-P/6) of appellant Rambali was recorded u/s 27 of the Evidence Act and one wooden club was seized at his instance under Ex.-P/7. Likewise, memorandum statement of appellant Rambakas was recorded under Ex.-P/S and 19 pieces of rope were seized under Ex.-P/9. Further a memorandum statement of appellant Prem was recorded under Ex.-P/10 and a club was seized under Ex.-P/11. On memorandum statement of Mandev, Ex.-P/12, a half burnt wood was seized under Ex.-P/13 and on the memorandum statement (Ex.-P/14) of appellant Ramlal, a danda was seized under Ex.- P/15. The case of the prosecution was that while the deceased was returning from the house of one Shodhan Ram (PW-9), he was stopped on the way and was assaulted by appellants Ramlal and Ram Singh and thereafter his dead body was thrown in the forest byall the appellants. ^ ^3%^A^..... '":^ c;: Q.. 9 ^ ././ "^1^ ^?^-^^ Criminal Appeals No. 1157 of20'03 & 1158 of 2003 ^. After completion of u$ual investigation, the charge-sheet was filed in the Court of Judicial Magistrate, First Class, Ra^manujganj, who in turn committed the matter to the concerned Sessions Court, from where, it was received on transfer by the Additional Sessions Judge (F.T.C.) Ramanujgang, who conducted the trial and convicted and sentenced the accused/appellants as aforementioned. (3) Conviction of the appellants is mainly based upon the extra-judicial confession made before Chandradeep Singh (PW-1), Uday Kumar (PW- 5), chaukidarRam\a\ (PW-15) and Om Prakash Jaiswal (PW-10). (4) Mr. V.K. Pandey, learned counsel appearing on behalf of the appellants, has not disputed the homicidal death of the deceased. Moreover, it comes in the evidence of Dr. Narayan Singh Paikra (PW-13) that the thyroid cartilage of the deceased was fracture and there was also a depressed fracture on the left occipital region. He opined that the cause of death was coma with asphyxia due to head injury and strangulation leading to cardio respiratory arrest and it was homicidal in nature. Therefore, it was established that the death of deceased Heera Lal was homicidal in nature. (5) Mr. Pandey argued that the evidence of extra-judicial confession is shakey; the witnesses of extra-judicial confession are contradicting each other on material points; and learned Sessions Judge, erred in law in resting the conviction of the appellants on the aforementioned set of evidence of extra-judicial confession. (6) On the other hand, Mr. Ashish Shukla, learned Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. ^-~ Criminal AppealsNo. 1157 of 2003 & 1158 of 2003 (7) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (8) Admittedly, there are no eye witnesses in this case and the conviction of the appellants is based upon the extra-judicial confession made before Chandradeep Singh (PW-1), Uday Kumar (PW-5), c/7au/c/cfar Ramlal (PW-15) and Om Prakash Jaiswal (PW-10). (9) In Naravan Sinfih -Vs- State of M.P.. (1985) 4 SCC 26, the Apex Court held that it is not open to ?ny court to start with a presumption that an extra judicial confession is a weak type of evidence and it depends upon the veracity of the witnesses to whom it is made and it is for the court to decide on the acceptability the evidence having regard to the credibility ofthe witnesses. (10) In State of U.P. -vs- M.K. Anthonv (1985) 1 SCC 505, the Apex court held that there is neither any rule of law nor of prudence that evidence furnished by extra judicial confession cannot be relied upon unless corroborated by some o^her 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 toindicate that he may 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 ^." "%^/ r-f^' Criminal Appeals No. 1157 of2003 & 1158 of 2003 ofthe 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 convictipn, 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 extra judicial confession is reliable, trustworthy and beyondreproach the same can be relied upon and a conviction can be founded thereon." (11) In Kavita Vs. State ofTamilnadu. (1998) 6 SCC 108. the Apex Court again reiterated the same principles that there is no doubt that convictions can be based on extra judicial confession but it is well settled that in the very nature of things, it is a weak piece of evidence and therefore, it is to be proved just like any other fact and the value thereof depends upon the veracity of the witness to whom it is made. It may not be necessary that the actual words used by the accused must be given by the witness but it is for the court to decide on the acceptability of the evidence having regard to the credibility of the witnesses. (12) Further the Apex Court held in the matter of Gaaan Kanoiia and another -Vs- State of Puniab 2007 (2) Crimes 81 (SC). that the extra judicial confession can form the basis of a conviction and by way of abundant caution, Court may look for some corroboration. (13) Therefore, it is clear that there is no rule of law that the evidence of extra judicial confession cannot be relied on alone and for recording a conviction on such confession, there should be corroboration by some other evidence. On the contrary, if the evidence of extra judicial confession is reliable, trustworthy and is beyond the shadow of doubts, the same can be made the sole foundation for recording conviction of the .'Y.. "°' ^.:s^%.. il^^pi %^^ ^ Criminal Appeals No. 1157 of 2003 & 1158 of 2003 accused and the Court, by way of abundant caution, may look for some corroboration. (14) Now we shall examine the evidence of extra-judicialconfession which are relied on by the Sessions Court. (15) PW-1, Chandradeep Singh, was the village Sarpanch at the relevant time. He deposed that about one year back, on a particular day at about 7-8.00 a.m., chaukidar Ramlal (PW-15) came to his house along with appellant Ramlal. Appellant Ramlal stated that he has committed murder of deceased Heera Lal by assaulting him with lathi. On this information, he went to village Duwari, where other accused persons had gathered. The dead body of deceased Heera Lal was in the forest which is at a distance of 6-7 Km. from village Duwari. Appellant Ramlal stated there that after assaulting deceased Heera Lal, his dead body was thrown in the forest with the help of appellants Ram Singh, Mandev, Rambakas, Prem and Rambali. He further added that appellant Ramlal and Ram Singh stated that they have killed the deceased by assaulting him and the remaining 4 appellants had assisted them in throwing the dead body in the forest. He was confronted with his case diary statement in which he stated that c/?au/c/"ofar Ramlal (PW-15) firstly told him that the appellants have killed the deceased and have thrown the dead body in the forest and they have stated this to chaukidar Ramlal (PW-15). He never stated that appellants Ramlal and Ram Singh came to his house along with chaukidar and they had made extra-judicial confession before him, firstly in his house and thereafter in village Duwari. Criminal Appeals No. 1157 of 2003 & 1158 of 2003 (16) PW-5, Uday Kumar, has been declared hostile by the prosecution. He deposed that on the fateful day, appellant Ramlal was sitting in the house of Sarpgnch. He was called by chaukidar. When he reached there, Sarpanch told him that chaukidar has brought appellant Ramlal. He requested him to a company to police station. Thereafter he along with Sarpanch, Chandradeep Singh (PW-1), chaukidar Ramlal (PW-15) and appellant Ramlal went to the police station, where the appellant made extra-judicial confession before the Munshi (a police officer who writes document in the police station). He has been cross examined by the Public Prosecutor but nothing incriminating could be brought on record. (17) PW-15, Ramlal chaukidar, deposed that appellant Ramlal came to his houseand requested him to go to police station. On this, he went to the house of Sarpanch along with appellant Ramlal and then Ramlal was taken to the police station by Sarpanch Chandradeep Singh (PW-1), Secretary, Uday Kumar (PW-5). He also went to the police station, where the Munshi asked as to how the incident took place, on which, appellant Ramlal made extra-judicial confession before him that he has killed deceased Heera Lal with the help of co-appellant Ram Singh. Thereafter, appellant Ramlal was sent to the lock-up of police station. He has been declared hostile by the pi-osecution but in the cross examination by the Public Prosecutor he denied the prosecution case relating to extra-judicial confession made by appellant Ramlal before Sarpanch Chandradeep Singh (PW-1). In cross examination by defence in Para-8, he categorically admitted that appellant Ramlal did not make extra-judicial confession before him or before Sarpanch Chandradeep Singh (PW-1), Secretary Uday Kumar (PW-5) and Om Prakash Jaiswal (PW-10). Criminal Aweals No. 1157 of 2003 & 1158 of 2003 ^s " \ (18) PW-10, Om Prakash Jaiswal, also deposed that appellant Ramlal made extra-judicial confession in the police station before Daroga and stated that h6 has killed deceased Heera Lal; appellant Ram Singh was also present along with him and he has killed the deceased by assaulting him with a lathi. (19) In appreciation, we find that according to Uday Kumar (PW-5), Ramlal chaukidar (P\N-'{5) and Om Prakash Jaiswal (PW-10), appellant Ramlal made confession before a police officer in the police station. They have never said that appellant Ramlal or appellant Ram Singh made any confession before them or before Sarpanch Chandradeep Singh (PW-1) in their presence, which was the case of the prosecution. Therefore, the evidence of these witnesses are of no use to the prosecution on the one hand, and on the other it destroys the testimony of Sarpanch Chandradeep Singh (PW-1). The testimony of PW-1 is further destroyed on account of his deviation from his diary statements on material facts referred to above. Therefore, in our considered view, the evidence of extra-judicial confession is not trustworthy in this case. Thewitnesses on the point of extra-judicial confession are not credible as they have tried to put up a new story before the Court. (20) Apart from the above, the evidence relating to discovery and alleged seizure of various articles, including the weapon of offence seized at the instance of appellants, is also of no use to the prosecution. The seized clubs, wood pieces and small pieces of rope are the articles which are commonly found in the house of villagers. The prosecution has not ^€S^^ ^^. .";-\ ik.._.... ... YJ --^.: ^- ^ 10 Criminal AooealsNo. 1157 of 2003 & 1158 of 2003 filed any report to show that the seized articles were stained with blood or human blood so as to connect them with the offence. (21) In the facts and circumstances of the case, we are of the considered view that learned Sessions Judge erred in law while convicting the appellants on the above evidence available on record and the conviction and sentences awarded to the appellants deserve to be set aside. (22) Accordingly, the appeals are allowed. Conviction and sentences awarded to the appellants are set aside. The appellants are acquitted of the charges framed against them. It is stated that appellants Ramlal and Ram Singh are in jail since 1.6.2001 and the remaining appellants were in jail from 1.6.2001 to 6.3.2002 during the pendency of trial and about one month during the pendency of appeal. Appellants Ramlal and Ram Singh be set at liberty, forthwith, if not required in any other case. The bail bond furnished by the remaining appellants shall also stand discharged. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge vatti