., .''^.S S ^ I'BLB MR. "T.P. SHASMA & HON'BLE MR. RANGNATH CHAKDRAKAR. JJ, "'••I'rfiiaasaa (3<JAIL) Smt. Piyar Bai, W/o Late Shn ChUanHulal Satnami, aged about 40 years,',R/o VUlage Kobiya, Thana Bemetara, District Dur? (C.G.) State of Chhattisgarh, Througli P.S. Bemetara, District Durg (C.G.j OF APPEAL UNDER SECTION 374(2! OF THB CODB OF Present:- Mr. Satyendra Salui, Advocate for the appeflant. Mr. Vtnod Shrivastava, G.A. for the State/respoiident. ORAL-JUD<»EMBNT (Passedon 06/07/2011) nirh^jbUowingjyd^ient_ of the_Coyrt_was_Dassed_bv ChaUenge in this appeal is to the judgment of conviction and order of sentence dated 27/11/2004 passed by Additional Sessions Judge, Bemetara, Durj (C.G.) in Sessions .Trial No. 196/2004 whereby and where under after holdmg the appellant. guitty for fhe commission of ofience of culpable homicide amouiitmi to miirder of her husband Chhannulal convicted the appellant i_mder Section 302 of the Indian Penal Gode .4 y i;iijS&ifeffniIifnilNN f—- ^ and sentenced imprisonment for llfe wifh fine of Rs. 2000/-, in defaiilt ofpayment offine amount additional rigorous tmurisonment for 3 raonfhs. Conviction is inipiigned on fhe ground that without any iota of evidence sufficient for conviction of appeUant Court below has convifcted and sentenced the appeUant as aforementioned and thefeby committed an illegality. As per case of the prosecution, appellant Smt. Piyar Bai and Chhannulal (since deceased) were present in fheir house. On 7/5/2004 on accoiint of previous quarrel while Chhannulal was sleeptag, appellaat has caused fatal tniurv to her husband i.e. Chhannulal and caused ~if ~— ^' his death thereafter she herself went to fhe Police Station and lodped Marg intunation vide Ex. P-17. On <? fhe basis of Ex. P-17, First Infoniiation Report was lodeed vide Ex. P-18. Investigattne Officer left for scene of occiirrence and after summontng fhe witnesses vide Ex. P-1. Inquest over the dead body of deceased Chhannulal was prepared vide Ex. P-2. Spot map was prepared vide Ex. P-5 which shows fhe dead body was found iaside the courtyard surrounded by wall. Dead body of deceased Chhannulal was sent for autopsy to Commiinity Health Center, Bem.etara vide Ex. P-13A. PW10 Dr. P.K. Bajpai conducted autopsy vide Ex. P-13 and found following injuries:- i'T ^•--..,-.;,-<., f' •••^^^^•''-^^^^' ;.j:';:i;^5;!.*-^!;| (i) Lacerated wound of 2 1A" x 1" x bone deep over left eyebrow. (ii) Lacerated wound of l' x %" x bone deep near left eve. (iii) Lacerated wound-of 1 %" x 1 x fhickness over right lip. (iv) Lacerated wound of 2" x 1s over lips. (v) Lacerated wound' of ^," x %" x bone deep over left side of head.. (vi) Lacerated wound of 2 Vi" x 1" x %" over left chin. ivu] Lacerated wound of 1" x %" x l/4" over right 1aw. (viiil Fracture on skull bone and vertebra were found. (ix) Brain membrane was lacerated. Mode of deafh was shock. At fhe time of autopsy, appellant made extrajudicial confession before fhe PW9 Dauaa @ Rajendra. Durin^ course of investigation, appeUant. was taken into custody and she made discloser statement of cloths of deceased and one wooden plank vide Ex. P-6, same was recovered at her instance vide Ex. P-3 & P-7. Cloths of appeUant were also seized vide Ex. P-8. Patwari also ureuared spot map vide Ex. P-9. Sealed articles were sent for chemical examination vide Ex. P-23. Presence of blood was confirmed on fhe clofhs of appeUant and other articles vide Ex. P-26. -(• 1 l^ '^ 4 N'illr^?s;a^^^' Statements of the witnesses were recorded under Section 161 of the Code of Crimmal Procedure, 1973 (m short the Code'), After completion of fhe investigation charge sheet was- filed before the Additional Chlef Judicial Magistrate, Bemetara who in turn committed the case to the Court/of Sessions, Durg from where leamed Additional Sessions Judge, Bemetara, Dur^ (C.G.) has received the case on transfer for trial. In order to prove fhe guUt of the appellant/accused prosecution examined as many as 14 witnesses. Accused/appeUant was examined under Section 313 of fhe Code where she denied the circumstances appearing against her, innocency and false unplication in crtme m. question is clairaed. After affording an opportunity of heanng to the pailies, leamed Additional Sessions Judge, Bemetara, Durg (C.G.) has convicted and sentenced the appellant as aforementioned. Mr. Satyendra Sahu, leamed counsel for the appeUant and Mr. Vuiod Shrivastava, Govt. Advocate for fhe State/respondent are heard. Judgment impugned and record ofthe Court below perused. Leamed counsel for fhe appeUant vehemently argued that conviction of fhe apDeUant is based on extrajudicial' confession made before the PW9 Dauaa y F ry ^ K .'^' ^^ w-'s^. is"'y< Rajendra which is not inspire confidence and trustworthy. Prosecution has not coUected sufGcient material asainst the aooeUant for commission of murder suspicion however grave cannot take place of legal proof. 10. On the other hand, learned Govt. Advocate for the •'.!. respondent/State opposed the appeal aad argued that prosecution has coUected siifficient evidence. Conviction of fhe appeUant is based on extrajudicial confession and ctrcumstantial evidence which is sufB.cient for conviction of the appeUant. 11. In order to appreciate the arguments advanced on behalf of the partf.es, we have examined the evidence adduced on behalf of tfae prosecution. 12. In the present case, homicidal deafh as a result of fatal injur5r found over the body of deceased Chhannulal has not been substantiaUy disputed on behalf of fhe appellant on the ofher hand, otherwise also established by fhe evidence of PW10 Dr. P.K. Bajpai and autopsy report Ex. P-13 and death was homicidal m nature. 13. As regard fhe compllcity of appellant in crime tn question is concerned, conviction of fhe appeUaht is based on extraiudicial confession and ctrcumstantial evidence. In order to convict the accused on the basis of circumstantial evidence, tfae prosecution is required to ===MK "X ?lS,-S£f^tfr-<r= J^I?T^'!^^/. adduce evidence and such evidence must satisfying fhe \ followtng tests: - i. fhe circumstances froin which aii inference of guilt is sought to be drawn, niust be cogenUy and firmly established; ii. those circuiastauces should of a defmite tendency unerringly poiating towards the guilt of fhe accused; '"^ iii. the circunistances taken curaulatively should form a cham so couiplete tbat there is no escape froin fhe conclusion fhat wifhiu aU huinan probabitity fhe crime was comTnitted by the accused and none else; and iv. fhe circuiiistantial evidence ia order to sustatn conviction inust be coinplete and iucapable of explaaation of auy other hypothesis fhau fhat of fhe guflt of the accused and such evidence should not only be consisteiit with the giult of fhe accused but should be uiconsistent with his itinocence. In the present case, as per evidence of PW9 Dauaa @ Rajendra, husband of appeUant has been mLirdered. At Uie time of postmortem whUe he was sitttng along wifh other villagers appellant made extrajudicial confession before hiiu fhat she has murdered her husband i.e. Chhannulal and at that time Police was not present. Defence has cross-examined this witness at length but has not been able to Ulicit anvthing to discredit his testunony. Extrajudicial confession is a weak type of %" •^•-' evidence but once it is proved to be ta-ue then same may be sufEicient for conviction of fhe appellant. 15. WhUe dealing with fhe evidentiary value of extra- judicial confession made under Seetion 24 of fh.e Evidence Act, the Supreme Court in fhe matter of Baldev Singh v. State of Puajab1 has held fhat extra- judicial confession is ^eneFaUy of weak type of evidence. No conviction ordmai'ily can be based solely thereupon unless same is corroborated in material particulars. . 16. While dealing with fhe same question, fhe Supreme Court m fhe niatter of Mohd. Azad (&. Samin v. State of West Bengal2 has held fhat tf extra-judicial confession ra.ade voluntarily and truth m a fit state of mind then it can be relied upon and confession will nave to prove like in any ottier evidence. Para 22 of fhe saidjudgment reads as under:- "22. Au extra-judicial confession, tf voluntary aiid true aiid m.ade in a fit state of uiiiid, caa be relied upon by fhe court. The confession will have to be proved Kke any ofher fact. The value of fhe evidence as to confession, Hke any ofher evidence, depends upon fhe veracity of the wituess to whoui it has been inade. The value of the evidence as to the Gonfession depends on fhe reliability of fhe 'wittiess who gives the evidence. It is 12009AIRSCW3730 220Q9.AIR SCW 752 &'fe titlKn :|^|si!.E;^.:t^^: uot open to aay ''court to start wifh a presumption that extra-judicial confession is a weak 1ype of evidence. It would depend on the nature of tbe circuiastances, the tune when the confession was made aad the credibiUty of fhe wimesses who speak to such a confession. Such a confession can •t.!. be relied upon the cionviction caa be founded thereon if tbe evidenee about fhe confession coiues from. the niouth of witaesses who'appear to be unbiased, not even reinotely uiiinical to the accused, and ia respect of whoia nothiag is brought out which niay tend to mdicate that he inay have a inotive of attributing au untrufhfal statenient to the accused, tfae words spoken to by fhe witness are clear, unanib^uous and uiunistakably convey that fhe accused is the perpetrator of the crune and nothias is oinitted by ttie witness which niay imlitate against it. After subjecting the evideace of the witness to a rigorous test on £he touchstone of credibflily, fhe extra- judicial confession caa be accepted aad can be the basis of conviction if it passes fhe test of credibility," 17. The Supreme Court in the oiatter of Shiva Karam Pavaswaini Tewar v. State of Maharashtra3 has held fhat statement may be oral or written, the admission of guUt would amouot to a confession whefher it is <; comm.unicated to another or not. "2009 AIR SCW 1226 w II:: II: :• ytssfsassssf 18. While dealuig wifh fhe same question, fhe Supreme Court in the niatter of State of Punjab v. Harjagdev Singh4 has held that every tnduceinent, fhreat or promise does not vitiate a confession. NormaUy extra- mdicial confession is a weak tvpe of evidence and shall not be relied upon without further corroboration from •i-i other sources. 19. As regard the other cu'cumstances is concemed, as per evidence of PW9 Dauaa @ Rajendra, PW 1 Santud.as, PW2 Ratanlal, PW3 Bhagwan Singh, PW4 Hoshiyar Prasad & other witnesses, appeUant and deceased i.e. Chhannulal were present in their house where dead body of deceased Chhannulal was found. Deceased is husband of appeUant and injured dead body of Chhannulal was found uiside the courtyard of deceased/appeUaat surrounding wifh waU. which is weU corroborated by spot map Exs. P-5 & P-9. This shows that offence committed m secrecy where deceased and appellant only two persons were present. tn fhese circuiastances, appeUant was ixnder obligation to offer explanation in terms of Section 106 of Evidence Act but appellant has not offered any explanation interalia she herself has made extrajudicial confession before the PW9 Dauaa@Rajendra, •<<2009 AIR SCW 4133 10 l:9i;: j1»'Wifes?; l1^|it!E^^ ^.i^^^i^g^ 20. While dealing wifh fhe ofience committed in secrecy and requireinent of explanation in case of Trimukh Maroti Kirkan v. State of Maharashtra5 ui case murder committed in secrecy inside a house, the initial burden to establish the case would undoubtedlv be upon the prosecution, but tj^e nature and amount of ,•' evidence to be led bv it to estabUsh the charge cannot be of fhe saaie degree as is required m. ofher cases of circi-unstantial evidence. Para 15 of the said judgment reads as under:- "15. Where aa offence like niurder is coininitted ki secrecy tnside a house, flie iuitial burden to estabU.sh fhe case would undoubtedly be upon the prosecution, but fhe nature aad amount of evidence to be led by it to establish the charge caruiot be of the saine degree as is required ia otiier cases of circum.staatial evidence. Th.e burdeii would of a comparatively lighter character. ln view of Section 106 of fhe Evidence Act fhere wiU be a corresponding burden on fhe iiunates of the house to give a cogent explanation as to how fhe crime was coniniitted. The iiunates of fhe house cannot get away by siraply keepiug quiet aud offermg no explanation on the supposed preinise that the burden to establish its case lies entirely upon the prosecution and fh.ere is no duty at aB on an accused to ofler aay explaaation." -^'(2006) 10 SCC 681 rfl V" I Ig il . f;- : 11 WSt'SSaiw 21. In fhe present case, appeUant has not offered any \, explanation that who has conunitted miirder of her husband which is committed in seci'ecy where she was only present and she Jierself has made extrajudicial confession, saine is admissible and sufficient to establish the fact that only appeUant has committed ,'t homicidal death amounting to Hiurder of her husband. 22. Arter appreciating the evidence available on record. leamed Additional Sessions Judge, Bemetara, Durg (C.G.) has rightly convicted and sentenced fhe appellant. as aforementioned. 23. On close scrutiny of the evidence, we do not find any illegality or infuiaity in fhe conviction and sentence of the appeUant. Consequently, criniinal appeal is devoid of merits and same is liable to be dismissed and is hereby dismissed. Sd/- T.P. Sharrna Judge Sd/- R.N. Chandrakar Judge M