HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 834 of 2003 CORAM: HON’BLE MR.T.P.SHARMA 85 HON’BLE MR N. Agarwal JJ. APPELLANT Bhagchand son of Chandan Raj (Accused in Jail) ' Gond aged about 31 years, res1dent ' of. village Bijapur Chowki Makadi, RS. Kondagaon, Distt. Bastar (CG) Versus RESPONDENT State of Chhattisgarh through Police Chowki, Makadi, RS. Kondagao, Distt Bastar (CG) (CRMINAL APPEAL UNDER SECTION 374(2) OF THE CODE OF 2 ! b CRIMINAL FROCEDURE 1973) Present .,Smf Meenu Banerjee, Advocate, for the appellant Shn Ravmdra Agawal Panel Lawyer, the State (\J M - JUDGMENT (Passed on 5&1 March, 20'10) The judgment of the Court was delivered by T.P.Sharma, J.:— 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 21—11—2002 passed by the Sessions Judge, Bastar, in Sessions Trial No. 1 14/2002 whereby and Whereunder learned Sessions Judge after holding the appellant guilty, for commission of culpable homicide amounting to murder of his wife Layawati, convicted the appellant under Section 302 of I.P.C. and sentenced him to undergo imprisonment for life 2. Judgment of commotion 1s impugied on the ground that without therebemg any credible and clinching evidence, the Court below has convicted and sentenced the appellant as, aforementioned and thereby committed illegality. V . Brief facts of the prosecution case are that on the fateful day of 31- 12-2001, the appellant came nom Anatpur market in drunken condition and demanded food from his wife (since deceased). 0n her refusal, ”the appellant assaulted her by stick and caused fatal injury. 0n second day, bromer and . R Su t e u el l g i RW ma n r 6 ga pplan has badly assaulted her and secon da she died. F.I.R. was lodged by P.W. 3 Ropnath vid Ex. P-3 a Merg was also recorded vide E. P—. he Investiga Off ni witnesses vide Ex. -2 and P—13, inquet over the dea mother of the deceased namely P.W. 3 oopnath and P.W. 6 gantin Baj came o th hose of the appellant. The applant made extra judicia confession of causin injury to his wfe before . 3 Roopnath. Deceased Layawati de ' dying declaratio before her mothe P.W. Suntin Bai that the aelt d y o e nd x 4 'T ting icer left for scene of occurrence. After summong the. P1 s d body was prepared vide EX. P-14. Dead body was sent for atopsy o Primary Health entre, Kodagan vide'Ex. P-1. P.W. 9 Dr. S. Lonhare conducted autopsy vide x. P~22 and found following injuries:— One laerated wound over ight side of ches f 7cm i x 5cm and rib was fractured. ii. Lacerated wound over right side of chest of 3cm x ' 2cm. m Multiple contusions over back part of the body. iv. Lacerated wound over right thigh of 3cm x 3cm. v. Multiple abrasions over left hand posterior. vi. ' Multiple abrasions on right hand posterior. v11 Blood was coming from mouth. Cause of death was due to Traumatic Asphyxia and excessive hemorrhage. 4. Blood stained and plain soil were seized horn the spot vide Ex. ‘P-7. The appellant was taken into custody vide Ex. P—8. He made disclosure statement of stick vide Ex. P-5, and the stick was recovered vide Ex. P—6. Spot may was prepared vide Ex. P- 16. Clothes of the deceased was seized vide Ex. P- 19. Seized articles were sent for chemical examination vide Ex. P—2O and‘presence of blood over clothes of the deceased was conflrm-ed vide Ex. P-Ql. 5. Statement of accused was recorded under Section 161 of the Code of Criminal Procedure,” 1973 (hereinafter referred to as ‘"‘\ \\ u t C no 5 E c r t o ‘the Code’). After completio o investigation, charge sheet was me i the Conn f Judicia Magistrate Firs Class, Kondagaon who in tu committed the case o the Cour o Session, Bast. ar 6. In order to prov the guilt of appelant, prosecution examined s many a itnesses Statement of th cused was also recorde de Section 31 of the Code where h denied the circumstances appearing agnst hi and claimed innocence and false implication. 7. Afte aifordin opportunty of hearing to the arties, learned aditiona Sessions Jdge, has convicted and sntenced the appellant as aforementioned. 8. We have heard Smt. Meenu Baneljee, leaed osel for the appellant and Shri Ravindra Agrawal, learned Panel Lawer for the State/respondent and perused the judgment pug and the record of the Court belo 9. Learne counsel for the appellant vheently argue tha conn s ased n extra dil confesn made y the appellant to P.W. Roopnat d the dying declaration made by the deceased to her'mother P.W. 6 Sunntin Bai. Extr judicial confessio and dying declaration are we type of evidenc and are not safe to rely unless they are corroborated ‘om other evience. In the preset ase, exa judicial confession and the dying declaration do not inspire confidence and are not safe to rely. Smt. Baneijee placed reliance in the case Palanisamx 10. . and others —v- State of Tamil Nadul, in which it is held that where retracted confession by~accused was found to be tainted and not supported by independent corroboration, benefit of doubt can be extended to the accused. She further placed reliance in the case of Ram sin@ —-v- The State? :in‘ I which it has been held that contradictory statements relating " to dying declaration are not safe to rely. She also place ' reliance in the case of Hafiz —va State of U.P.3 wha‘e the a ‘ AIR 1986 so 593 2 1997 CRILJ. 372 3 2005(3) CCSC 1389 n f d n : o l t m t t f e i a s 9 w. e ac d, unr 3 e ai m r g i p dl u e rn cun y imned w d em d t mctio 1 b o Juc1a sm b 3 h an ga a n ak e h d n c tr a v I 3‘ @ Apex Court has held that in abscnce of intention for causing death by lathi, the occurrence might have occurred at spur of moment and oe‘ence falls under Section 304 Part II of ‘ LRC. By placing reliance upon the case of Joseph -v- State of Kerala4, she submits that stick is not a deadly weapon and where intention to cause injury sumcient to cause death in ordinary course of nature is not established, conviction may be altered from Section 302 to one under Section 304, Part II of I.P.C. ll. On the other hand, Shri Ravindra Agrawal, learned I counsel for the State vehemently opposed the appeal-and submits that evidence of P.W. 3 Roopnath and RW. 6 Sugantin Bai is suh‘icient for drawing inference that the appellant has committed murder of his Wife. ’ 12. In order to appreciate the argument advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 13‘ ~In the present case, homicidal death of deceased Layawati as a result of fatal injury is not substantially disputed, otherwise it is established by the evidence of P.W. 9 Dr. S. Lonhare and autopsy report Ex. P-22 which reveals that rib was found n‘actured and several injuries were found on the body, which are sumcient for drawing inference that the death of the deceased was homicidal in nature: 14. As regards complicity of the appellant in the crime in question, conviction is based on extra judicial confession made by the appellant to the P.W. 3 Roopnathybrother of the deceased and dying declaratiou made by the deceased to his mother P.W. 6 Sugantin Bai. 15. P.W. 3 Roopnath has deposed in his evidence that Beerchand, son of the deceased came to him and informed that the appellant has assaulted his mother. Then he along with his mother P.W. 6 Sugantin Bai went to the house of the appellant. The appellant made extra judicial confession before him that he demanded food to his Wife, which was \N\ 4 AIR 1994 SC 34 refused by her, as a result of which, he assaulted his Wife by stick. He went to police‘station and lodged F.I.R. and Merg vide Ex. P—3 and Ex. P—4. The defence has cross-examined this witness but has not asked any question re]m‘ing to the extra Jud1c1a1 confessmn made by the appellant to mm r 16. P W 6 Sugantm Ba1 has deposed 1n her ev1dence that on the date of meldent, she came to the house of her daughter Layawati (since deceased) and she made dying declaration that the appellant has badlyassaulted her by Bada (suck) and also by lacks and caused Injury Then on second day, she dled The defence has also not asked any questmn to thls W1tness relahng to dymg declaratlon made by the deceased to this Witness. 17. In the case of Ram Sing}: —v- The Statez, there was veracity between the dying declarations made by the deceased to two persons and in these circumstances; it was held‘that the dying declaration is not safe to rely. But in the present case, dying declaration made by the deceased is specific cogent and has been made to her' mother‘and ‘ therefore, the facts of the above case are distinguishable from the facts of the present case I ‘ 18. As regard the dec1s10n in case of Palanisamy and others —v- State of Tamil Nadul, regardmg extra Judicial confession, in the present case, extra judicial confession made by the appellant to P.W. 3 Roopnath, his brother~in- law is not tainted and appears voluntary and is true extra judicial confeSsion. 19. ’ While dealing with ' the evidentiary value of extra- judicial confession made under Section 24 of the Evidence Act, the Apex Court in the matter of Baldev Singh v. State of Punjab5 has held that extrajudicial confession is generally of weak type of evidence. No conviction ordinarily can be based solely thereupon unless same is corroborated ' in material particulars. V‘ 52009 AIR $CW 3730 i 7 While dealing with the same question, the Apex Court in the matter of Mohd. Azad @ Samin v. State of Wes Bengal5 has held that if extrajudicial confession made voluntarily and truth in a fit stateiof mind then it can be relied upon and confession will nave to prove like in an ther evidence. Para 22 of the said judgnent reads as under: - “22. An exh‘a—judicial confession, if voluntaly 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 any other evidence, depends upon the veracity of the Witness to Whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who g’ves 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, Vthe‘ 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 untiuthful 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” l 2 1. The Apex Court in the matter of shiva Karam Payaswami Tewau v. State ofMaharashtra‘? has held that statement may be oral or written, the admission of guilt would amount to a confession whether it is communicated to another or not. While dealing-with the same question, the Apex Court I in the matter of state of Punjab v. Harjagdev Singh‘ has a é wax ’\\ 22. ‘2009 AIR scw 752 72009 Am scw 1226 ”2009 AIR scw 4133 t y o ~ ' held that 6vely inducsment, threat or promise does not vitiate a confession. Normally extra-judicial confession is a weak type of ovidence and shall not be relied upon without further corroboration &om other sources. 293. The principle of dying declaration is based on legal maxim “nemo morimms proesumitur mentiri"- a man will not 24. meet his maker with a lie in his mouth. Lord Chief Justice Baron Eyre {See RV. Woodcock, (1789 Lea 502} expressed his View relating to dying declaration as follows:- “ ...... That such declarations are made in extremity, when the party is at the point of death, and when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is » induced by the most powerful considerations to speak the truth; a situation so solemn and so awful is considered by the law as “creating an obligation, equal to that which is imposed by a positive oath in a court of justice \N As has been held by the Apex Court in the matter of State of U.P. —v- Ram Saga: Yadav9, if the court is satisfied that the dying declaration is true and voluntary it can base conwction on 1t Without corroboration 25. 26. In the present case, evidence of P W 6 Sugantin Bai, 7 before whom dymg declaration was made<by the deceased and ev1dence of PW 3 Roopnth brother—mdaw of the appellant before whom extra Jud1c1al confess1on was made by the appellant, inspire confidence and trustworthy and they are corroborated by each other, and are sufncient for drawing inference that the appellant has caused injury to his wife Layawati (since deceased). 27 . As regards motive, in the present case, according to the prosecution, the appellant who was husband of the deceased, demanded food from his wife which he has right to § \W, demand and on her refusal, he assaulted her by stick. Autopsy report Ex. P—22 and evidence of RW. 9 Dr. S. Lonhare reveal that all the injuries were found over chest and except injury No. 1 and 2, others were simple in nature. The deceased died-second day of the incident, shows that the appellant had sufflcient opportunity to kill his Wife. but’he has not killed his wife and only assaulted his’wife over her chest and not upon other vital part of the body, except fracture upon rib no fatal injury was found, shows that he has not caused the injuries with intention to cause her death. In View of the case of Hafiz —v— State of U.P.3, the present case falls Within the ambit of Section 304—II of I.P.C. 7g, 28. After appreciating the evidence, learned Additional Sessions judge has convictedand sentenced the appellant under Section 302 of I.P.C. but has not considered the material aspect of the case that the appellant has not caused any injury over head and except injury No. 1 and 2, all the injuries were simple in nature. The deceased died as a result o t K f injury on second day, thereby committed illegality j w 29. For the foregomg reasons, the appeal ls partly allowed Conv1cuon of the appellant under Section 302 of IPC is alerted to under Section 304—11 of l.P.C. The appellant 1s in custody since 3- 1-2002. He is sentenced to the custodial pen'od i.e. n'om 3—1-2002 till today i.e. more/than 7 years. He be released forthwith if not required in any other case. ifwt Sd/- t N.K. Agrawal i Judge J l i s :