% '^^~ COURT OF CHHATTISGARH AT HON'BLE MR. T.P. SHARMA & HON'BLB MR. SANGSATH CHANDRAKAR. JJ. Mani Ram alias Manishha Dhanuhar, aged 22 3?ears, son of Shri Mahettar Dhanuhar, resident of viUage KerakacUhar, P.S. Kartala, district Korba (C.G.j. State of Chhattisgarh, fhroiigh the police station Kartala, district Korba (C.G.j. VER8us "l?1 ^rSK. L PROCEDURE. Present:- Mr Soiiuiath Venna, Advocate for the appellant. Mr. D.K. Gwab-e, G.A. for the State/respondent. T.P. JUDGEMBNT (Passedon 14/11/2011) The foUowing iudgment of fhe Court was passed bv Challenge in fhis appeal is to fhe judgment of conviction and order of sentence dated 8/12/2006 passed by Additional Sessions Judge, Korba, District Korba (C.G.) in Sessions Trial No. 62/2005 wherebv and where under after holdtng the appellant guilty for the commission of offence of culuable homicide amountine to murder of Ravi Kuiaar and concealing the evidence of criminal case. convicted fhe appellant under Sections 302 & 201 of the Indiaa Penal Code and sentenced rigorous imprisonment for llfe & Ime of Rs. 1000/-; m default of payment of fine amount additional rigorous imprisonment for 1 year and rigorous imprisonment for 7 years & fine of Rs. 500/-, in defanlt of payment of Gne ainount, additlonal rigorous tmprisonment for 6 months. 2. Conviction is tmpugned on the groiind that without any iota of evidence sufflcient for conviction of the appellant, Court below has convicted and sentenced the appeUant as aforeinentioned and fherebv committed an UlegaMt^. 3. As per case of the prosecution, Ravi Kumar (since deceasedj son of FW1 Daleshwar Rao was seen last tiEne alive m fhe company of appellant on 17/7/2005 at one fair fMeta) fhereafter his dead body was found in the dam. Missmg report was lodged vide Ex. D-1 by PW1 Daleshwar Rao. Appellant made extrajudicial confession before PW3 Basant Kumar, PW4 Biajlal, PW7 Parmanand Chandrakar & PW11 R. K. Dighe that he has kiUed Ravi Kumar and dead body of Ran Kumar was recovered at the tnstance of appeUant. Dehatt-Natishi & Dehati-Marg were recorded vide Exs. P-1 & P-2. Appellant was taken into custody, he made discloser statement of dead bodv of Ravi Kumar vide Ex. P- 6, same was recovered at his instance vide Ex. P-7 from dam. After summontng the witnesses vide Ex. P-3 and removmg the dead body of Ravl Kumar was prepared vide Ex. P-4. Appellant also made discloser stateraent of towel vide Ex. P-8, same was recovered at his instance vide Ex. P-9. Co-accused Ramayan Singh & Yamuna Prasad made discloser statement of Boat & Patwar vide Exs. P-10 & P- 11, same were recovered vide Exs. P-12 & P-13. Patwari prepared spot map vide Ex. P-14. Finally, Pirst Infonnation Report & Marg intiiaation were recorded vide Exs. P-19 & P-20. Dead body of Ravi Kumar was sent for autopsy to Primaiy Healfh Center, Kerakachhar vide Ex. P-17. PW10 Dr. Virendra Kumar conducted autopsy vide Ex. P-26 aad found followtng injuries & syinptoms:- (i) Decomposition started. (iij Injury found around the neck. Cause of death was asphyxia due to stranaulation. Statements of the witnesses were recorded under Section 161 of the Code of Crinitnal Procedure, 1973 (in short the Code^. After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Korba who in tum committed the case to ttie Court of Sessions, Korba from where leamed Additional Sessious Judse, Korba, District Korba (C.G.) has received fhe ca&e on transfer for trial. In order to prove the guUt of Uie appeUant prosecution examined as uiany as 12 witnesses. AppeUaat/accused was examtned under Section 313 of the Code where he denied the circumstances appearing against him, iiis<»in,i».*»i*w % innocency and false impUcation tn crime tn question is claimed. 6. After atTording an opportunity of hearing to the parties, leaiTied Additional Sessions Judge, Korba, District Korba (C.G.) wliite acquifting three co-accused persons, convicted and sentenced fhe appeUant as aforementioned. 7. Mr. Somnath Verma, Advocate for the appellant and Mr. D.K. Gwah-e, G.A. for fhe State/respondent are heard. Judgment impugned and record of tfae Court below perused. 8. Leamed counsel for ffae appellant vehemently argued that connction is based on discloser statement of recoveiy of dead body, extrajudicial confession made before the witnesses and last seen theory but all the circumstaaces are not sufficient to complete the chain of circumstances otherwise evidence relating to aforesaid facts does not inspire confidence and trustivorthy. 9. Leamed counsel for the appellant further areued that as per evidence ofPW6 Raghukiimar & PW12 Sansoram, they have seen Ravi Kumar last tmie alive in the companv of appeUant on 17/7/2005 but dead bod5r of Ravi Kumar was recovered on 22/7/2005 and there is lone eap between last seen fheon' & recoverv of dead bodv therefore, evidence of last seen fheoiy is of no use in the present case. p j , Leamed counsel for the appellant also ai^ued fhat prosecution has adduced fcvo sets of evidence tirsUy, relating to extrajudicial confession made before fhe witnesses and secondly, recovery of dead body on ttie basis of discloser statement of appellant Ex. P-6 which are contradictory to each other, if before recording discloser statement, extrajudicial confession has been made by appeUant before the witnesses fhen there was no propriety for recorduig discloser statement in terms of Section 27 of the Indian Evidence Act because factum of presence of dead bodv in the dam was well ^vifhin the knowledge of other persons before whom appeflant has made extraiudicial confession. As regard the extraiudicial confession is concemed, extrajudicial confession is a weak tv'pe of evidence and is not safe to rely without further corroboration from fhe independent sources but in fhe present case, evidence relating to last seen theory and discloser stateuient are contradictory to the evidence of extrajudicial confession . Prosecution has not coUected any other evidence in support of extraiudicial confession therefore, extrajudicial confession may be sufficient for casting suspicion upon appellant that appeUant raay have commit the ofFence but same is not sufEicient for drawin^ definite conclusion that only appellant has committed / • J;^-^' • f' aforesaid offence. In these circumstances, appellant who is tn custodv since 2005 is entifled for benefit of doubt. 11. On the other hand, learned Govt. Advocate tbr fhe respondent/State opposed fhe appeal and argued that conviction of the appellant is substantially based on last seen theory, discloser statenient of dead body and extrajudicial confession. In fhe present case, as per evidence of PW6 Raghukum.ar & PW12 Sansoraia, fhey have seen Ravi Kumar allve last time in the compan}' of appellant on 17/7/2005 fhereafter, his dead body was recovered on 22/7/2005. In case of last seen theory, recovery of dead body is not materiat but death of Ravi Kumar is material and as per autopsy report conducted on 22/7/2005, death of Ravi Kumar has been caused 5-7 davs prior to autopsv which reveals that Ravi Kumar has died on 17/7/2005, it shows that there was no long gap between last seen theory & deafh of Ravi Kumar. 12. Leamed Govt. Advocate for the State/respondent further argued that appeHant has raade extrajudicial confession before fhe witnesses whom he has informed that he has killed Ravi Kiiinar but has not specifically deposed fhat where he concealed fhe dead bodv therefore, it was not within tihe knowledge of other persons that where dead body was hidden. These facts only came into knowledge of 'olice Officers and ofher persons by discloser statement of appellant Ex. P-6. Ali these evidence are sufficient for conviction of the appellant under Sections 302 & 201 of the Indian Penal Code and Court below has rightly convicted and sentenced the appeUant as albrementioned. 13. In order to appreciate' the argument advanced on behalf of the parties, we have exaniined the evidence adduced on behalf of the parties. 14. In the present case, homicidal death of Ravi Kumar as a result of strangulation has not been substantiafly disputed on behalf of the appellant on fhe other hand, otherwise also established bv fhe evidence of PW10 Dr. Virendra Kuamr 8s autopsy report Ex. P-26 and death was homicidal in nature. 15. As regards the complicity of the appeUant ui crime in question, conviction is substantially based on extrajudicial confession, last seen theory and recovery of dead body at the instance of appeUant. As per evidence of PW6 Raghukumar 8s PW12 Sansoraai, on 17/7/2005 they have seen Ravi Kumar alons with appellant last time m fair thereafter he was not seen alive. Dead body of Ravi Kiimar has been recovered on 22/7/2005 although as per autopsy report, death has been caused 5-7 days prior to autopsy but fact remaia that death of Ravi Kumar was not within fhe knowledge of any person therefore, evidence relating to Jast seen theory is not safe for conviction of the appeUant in the Ught of aforesaid time gap betw?een recovery of dead body and last seen theory. 16. As reeard the extraiudicial confession is concemed, prosecution has exammed PW3 Basant Kum.ar, PW4 Brajlal, PW7 Parmanand Chandrakar & FW11 R. K. Dighe before whom. appellant has inade extrajudicial corrfession that he has kUled Ravi Kumar and has thrown dead body in dam. Defence has cross-examined fhese witnesses at lengCh, in thetr cross-examination, fhey have specifically deposed and admitted that appellaat has made extrajudicial confession before theia that he has killed Ravi Kumar. PW1 Daleshwar Rao & PW7 Parmanand Chandrakar have admitted in theu' evidence fhat fhev have created pressiire upon appeUant fhen appellant has made extrajudicial confession. PWl Daleshwar Rao has also admitted that during course of investigation, at the time of discloser statement of appeUant, Pollce has also used force and pressure upon appeUant although, extrajudicial confession should be voluntarily and confessional statement under Section 27 of the Indian Evidence Act should be inducement threat & promise (I.T.P.) but evidence of aforesald ^vitnesses relating to use of such pressure or force cannot be ruled out, if it is considered that appeUant has niade extrajudicial confession before the witnesses or raade discloser stateiaent before Police under force or pressure then even atbresaid evidence cannot be discarded only on fhe groiind of such force or pressure because bv creatine pressnre or force upon anv person, such persou would riot be tn position to state things which would not be within" his knowledge e\ren by ustng pressure or force upon him of anv desree therefore, onlv on the ground of use of some force or pressure, their entire evidence cannot be discarded. 17. As per evidence of PW3 Basant Kumar, PW4 Brajlal, PW7 Parmanand Chandrakar & PW11 R. K. Dighe, present appellant has made extrajudicial confession before them that he has kUled Ravi Kiimar and has also deposed that he has fhrown the dead body of Ravi Kumar in dam. This shows that on the basis of extrajudicial confession, fhese persons were knowing the fact that dead body of Ravi Kumar i.s Qouting or present in the dam therefore, recording of subsequent discloser statement by Police relating to dead body is of no use in the present case. Extrajudicial confession is a kind of evidence and once it is proved to be true then same may be siiBicient for conviction of the accused. 18. While dealing wifh fhe evldentiaiy value of extrajudicial confession made under Section 24 of the Indian Evidence Act, fhe Supreme Court in the matter of 10 1. Azad ?% Samin v. State of West Beneal1 has held fhat tf extrajudicial confession made voluntarily and trafh tn a fit state of mind then it can be refled upon and confession wUl have to prove like in any other evidence. Para 22 of the said judgment reads as under:- "22. An extra-judicial confession, if voluntarv aad true aad niade in a fit state of mind, can be relied upon by the court. The confession wiU have to be proved like aav other fact. The value of the evidence as to confession, Uke anv other evidence, depeuds upon the veracily of the witness to whoin it has been raade. The value of the evidence as to the confession depends on fhe reliability of the witness who gives fhe evidence. It is not open to any court to start with a presuinption that extia- judicial confession is a weak 1ype of evidence. It would depend on the nature of ttie circuinstaaces, fhe tune when fhe confeasion was inade aad tfae credibiUty of fhe witaesses who speak to such a confession. Such a confession can be reUed upon the conviction caa be founded thereon if the evidence about fhe confession coines froia fhe raouth of witnesses who appear to be unbiased, not even reniotely inimical to fhe accused, aad .in respect ofwhoin nothing is brought out which inay tend to indicate fhat he niav have a inotive of attributtag aa untruthful statenaent to tfae accused, ffae words spoken to by fhe ^itness are clear, 2009 AIR SCW 752 -laa. 11 unambiguous aad unmistakablv convey fhat the accused is the perpetrator of the criine aud nothiag is oinitted by fhe witness which inay niilitate agauist it. After subjecttng the evidence of fhe witaess to a rigorous test on the touchstone of credibilily, the extra-judicial coofessiDn can be accepted and caa be the basis of conviction if it passes the test of credibUity". 19. In the present case, evidence of PW3 Basant Kumar, PW4 Brajlal, PW7 Parmanand Chandrakar & PW11 R. K. Dighe uispire confidence, trustworthy and same are safe to rely. These evidence are sufficient to establish the fact that appellant has caused homicldal deafh with intent to cause death of Ravi Kiimar and has thrown his bodv in dam. 20. After appreciating the evidence available on record, learned Additional Sessions Judge, Korba, District Korba (C.G.) has rightly convicted and sentenced fhe appeUant under Sections 302 & 201 of fhe Indian Penal Code. Conviction of the appellant is based on legal, cUnching 9s, credible evidence sustalnable under fhe law. 21. On close scrutmy of fhe evidence, we do not find an}r Ulegality or tnfirmity in the judgment of conviction and order of sentence. Consequently, criininal appeal is devoid of merits. same is Uable to be dismissed and is herebv dismissed. Sd/- T.P.Sharma Judge Sd/- R-N. Chandrakar Judge v ils.: