HIGH COURT OF CHHATTISGARH BILASPUR ‘ CORAM: Hon’ble Shri Sunil Kumar Sinha at; i Hon’ble Shri R.N. Chandrakar, JJ. Criminal Appeal No. 344 of 2003 E Sahdeo @ Chhotu Yadav Vs. ‘ w ‘ State of Chhatt1sgarh (And other connected Cr A NO 375 of 2003 8L Cr A NO 449 of 2004) JUDGMENT Fdr cgnsideration Sdl- Sunil Kumar Sinha Judge \ Sdl‘ : R.N.Chandrakax Judge v " f/08/2009 2 HON’BLE SHRI JUSTICE R.N. CHANDRAKAR 3W“- /‘ Postfor Judgment 25/08/2009 Af4 Sd/- ‘ Judge v 24/08/2009 W ’”*’ CORAM: Criminal Appeal No. 344 of 2003 APPELLANT Sahdeo @ Chhotu Yadav, Son of Ramgati Yadav, aged about 19 years, resident of Birgahni Chowk, Birgahni, Police Station — Janjgir, Distrigt— Janjgir—Champa (C.G.) Versus State ' of Chhattisgarh, through District Magistratei‘ District— Janjgir— Champa (C.G.) i‘éSPONDENT $ - Cfiminal Agpeal No. 375 of 2003 APPELLANTS Shiv Ram aged about 29 years, S/o Bahoran, resident of Village Birgahani, P.S. Janjgir, Tehsil Janjgir, District — Janjgir—Champa Dharmendra @ Gudda S/o Virendra Singh, aged about 2O years, resident of village Birgahani Chowk, Birgahani, P.S. Janjgir, District- Janjgir—Champa (C.G.) Versus The State of Chhattisgarh, Through the District Magistrate, District— Janjgir—Charnpa (C.G.) And RESPONDENT Criminal Aggeal No. 449 of 2004 APPELLANT Suresh Kurnar S/o Itwari, aged about 21 years, r/o Village Piparda, P.S. Akaltara, District Janjgir— Champa Versus The State of Chhattisgarh, through the District Magistrate, District— Janjgir—Champa (C.G.) RESPONDENT ii ‘ HIGH COURT OF CHHATTISGARH BILASPU Honble Shri Sunil Kumar Sinha 8a Hon’ble Shri R.N. Chandrakar JJ. ’ 2 Criminal Appeals No. 344 of 2003: 375 of 2003 & 449 of 2004 : (Appeals under Section 374 (2) of The Code of Criminal Procedure) Appearance: Mr., Awadh Tripathi, Counsel for the appellants in Cr.A. No. 344/2003 85 Cr;A. No. 449/2004. Mr. Yogeshwar Sharma, counsel for appellant No.2 1 Dharmendra @ Gudda and Mr. Sushobit Singh, counsel for appellant No.1 Shiv Ram in Cr.A. No.375/2003. Mr Ashlsh Shukla Govt Advocate for the State 1n all the Criminal appeals V'f JUDGMENT (25.08.2009) ‘Following judgment of the Court was delivered by Sunil Kumar Sinha, J (1) These appeals have been directed against the judgment and order dated 31.1.2003 passed in Sessions Trial No. 160/2002 by the Fourth Additional Sessions Judge (F.T.C.), Janjgir (C.G.), whereby, the appellants have been convicted u/ss 302 85 201 IPC and sentenced to undergo rigorous imprisonment for life 85 to pay fine of Rs. 100/—, in default of payment of fine to undergo R.I. for 1 l mbnth and R.I. for 5 years 85 to pay fine of Rs.500/—, in default of payment of fine to undergo R.I. for 6 months, with a further direction to run the sentences concurrently. (Zl) The facts, briefly stated, are as under:— On 1.3.2002, at about 7.00 a.m., Sarju Prasad Rathore (PW—1) saw two dead bodies lying in Mundinala near Birgahni Chowk. He lodged Merg intimations (EX.—P/1 86 P/2) in the concerned police station. The Investigating Officer‘reached to that place, gave notices (Ex.—P/40 8L P/41) “V ‘\ é? ’ @ 3 Criminal Appeals No. 344 of 2003; 375 of2003 & 449 of 2004 to the Panchas and prepared inquest reports (EX.—P/42 & P/43) on the dead bodies of the deceased persons which were identified to be the bodies of Amardas @ Ammu and Anil Kumar, residents of Sadar Bazaar, Champa. Site plan was prepared under EX.-P/44A and another site plan was prepared by Halka Patwari under Ex.—P/ 15. Blood stained soil, plain soil and two pairs of chappels were seized from Mundinala under EX.—P/37. During the course of investigation of the Mergk the Investigating Officer came to know that the deceased persons were assaulted by the Vatcused/appellants by lathi, iron hammer and paua (the leg of the C‘ot) in the intervening night of 28.2.2002 and 1@.2002 in the hotel belonging to appellant Suresh Kumar Patel whichtwas situated at Birgahni Chowk and their dead bodies were thrown by them in the nala. On such information, he recorded Dehatinalishi (EX.—P/46) at 2.00 p.m., based on which, a First Information Report (Ex.—P/47) was lodged. Blood stained soil and plain soil were seized from the place of occurrence (hotel of appellant Suresh Kumar Patel) under Ex.-P/36. The dead bodies of the deceased persons were sent for their post—mortem to District Hospital, Janjgir under EX.— P/16 & P/27, where the post—mortem examinations were conducted by Dr. RS. Prabhakar (PW—4) and Dr. R.D. Gupta (PW-6), who prepared their reports Ex.—P/17 8L P/28. They noticed multiple grievous injuries on the vital parts of the bodies, including the skull, of the deceased persons and opined that the death of the deceased persons were caused by coma and haematoma due to head injuries and the deceased persons died homicidal death. In r further investigation, after taking the accused/appellants into custody, their memorandum statements (EX.—P/3, P/4, P/9 85 P/33) were recorded u/s 27 p V'f 4 Criminal Appeals No. 344 of 2003; 375 of2003 & 449 of 2004 of the Evidence Act and pava of cot (3 Nos.) and iron hammer were seized at the instance of the accused persons under EXP/5, P/6, P/ll 8a P/34. Cloths of the accused persons were also seized. The seized articles were sent for their chemicaliexamination to Forensic Science Laboratory, Raipur, from where, a report EX.—P/59 was obtained. According to the F‘.S.L. report, blood stains were found on the pal/a & the hammer seized from accused/appellants ‘Sahdeo and Suresh. ‘ After completion of usual investigation, the charge— sheet was filed in the Court of Chief Judicial Magistrate, Janjgir, who in turn committed the matter to the concerned A Sessions Court, from where, it was received on transfer by the Fourth Additional Sessions Judge (F.T.C.), Janjgir (C.G.), who conducted the trial and convicted and sentenced the accused/ appellants as aforementioned. (3) evidence. One was the eye—witness account of sole eye-witness Ishwari Yadav (PW-9) who also narrated the story to Laxminarayan (PW-5). The other was the extra—judicial confession made by appellant Suresh Kumar before Rajesh Kumar Tiwari (PW—7), Gulab (PW-10), Ganesh Prasad Sahu (PW—ll) & Dharmendra (PW—15) in which he allegedly confessed that he along with the other appellants namely Shiv Ram, Dharmendra @ Gudda and Sahdeo @ Chhotu Yadav had committed the murder of t) e deceased persons. ( ) hostile and’he did not support the case of the prosecution. Even l The prosecution came with ,a case based on two sets of The sole eye-witness namely Ishwari Yadav (PW—9) turned @ 5 Criminal ADDeals No. 344 of2003; 375 of 2003 & 449 of 2004 C99 Léxminarayan (PW-5) also turned hostile and denied that the incident was disclosed to him by Ishwari Yadav (PW~9). L1 /1/A‘ i 6 @ Criminal Appeals No. 344 0f2003; 375 0f 2003 & 449 0f2004 1 4 judicial confession made by appellant Suresh Kumar before the above Witnesses is shaky and unreliable. They also argued that evén otherwise also, conviction of the other appellants cannot be sustained on the basis of so—called extra-judicial confession made by foo—accused Suresh Kumar as the same was not a substantive evidence against them within the meaning of Section 3O of the Evidence Act. x (8) “‘§n the other hand, Mr. Ashish Shukla, learned Govt. Advocate appearing on behalf of the State, opposed these arguments andisupported the judgment and order passed by the Sessions Court. A (9) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (10) In State of U.P.- —vs- M.K. Anthony (1 985) 1 SCC 50; the Apex Court held that “there is neither any rule of law nor of ' prudence that evidence furnished by extra judicial confession annot be relied upon unless corroborated by some other credible evidence. i The courts have considered the evidence of extra omin‘,n 4 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 Vinimical to the accused, and in respect of whom nothing is rought out which may tend to indicate that he may have a motive or attributing an untruthful statement to the accused,- the words b f @ Criminal ADDeals No. 344 of2003: 375 0f2003 & 449 of 2004 spqken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crirhe and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the Witness to a rigorous test on the touchstone of credibility if it passes the test, the lextra judicial confession can be accepted and can be the basis of a1 conviction, in such a situation to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. If the u f evidence of extra judicial Confession is reliable, trustworthy and beyondAreproach the same can be relied upon and a conviction can be founded thereon.” a (11) In Narayan Sinqh-Vs- State of M.P., (1 985) 4 SCC 26, the Apex Court held that it is not open to any 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 i acceptability the evidence having regard to the credibility of the v l witnesses. l 3 (12) Further in Baldev Raj —Vs- State of Haryana, 1991 supp (1 SCC 14 the Apex Court laid down that " An extra—judicial colnfession, if voluntary, can be relied upon by the court along .l 1 l I l i With other evidence in convicting the accused. The value of the evidence asto the confession depends upon the veracity of the i witnesses to whom it is made. It is true that the court requires the witness to giVe the actual words used by the accused as nearly as 8 ossible but it is not an invariable ule that the cburt should not ccept the evidence, if not the acual words but the substance were given. It is for the court having regard to the credibility of the itness to accept the evidence or not. When the court believes the itness before Whom the confession is made and it is satisfied at the confession was voluntary, conviction can be founded on ' fo e d such evidence. Keeping these principles in mind, the Apex Court und in this cas that the confession has been properly accepted V a an‘acted upon by the courts below and there was no scope for any doubt reg‘arding the complicity of the appellant in the crime. The confession of the appellant was voluntary. The testimony of PW 4 and PW 5 being responsible persons could not be doubted in t absence of any material to show that they had been motivated he to falsely implicate the appellan. The very presence of the t ppellnt and his father with t rty of Ishar Dass throughout aa he pa the operation up to lodging of complaint at th police station, l e dispel any suspicion against he prosecution case and clearly point to the truthfulness of the same. His Lordships said that, therefore, they were unable to find any infirmity in the confession which has been accepted and relied ‘upon by the courts below.” (13) n the I Kavita Vs. State of Tamilnadu, (1 9982 6 SCC 108, pex Court again reiterated the same principles that there is no doubt that convictions can be based on extra judicial confession ut it is well settled that in the very nature of things, it is a weak iece of evidence and therefore, it is t be proved just like any Criminal Appeals No. 344 of2003; 375 of 2003 & 449 of2004 p‘ r a t { W W th r t A b p o i Criminal Anneals No. 344 of 2003; 375 of 2003 & 449 of 2004 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. (14) Further in State at Punjab —Vs— Gurdeep Singh, 1999 SCC (Cr-i.) 1368, again the Apex Cburt emphasized th’at in the matter of evidence of extra judicial confession, the evidentiary value of the i evidence depends upon the veracity of the Witnesses to Whom it is made Aand it can be treated as substantive evidence if there is found some assuring material or circumstance and the delay in recording extra judicial confession before a person Wholly unconnected With the police is always a matter of great suspect. A (15) In Gagan Kanojia and another -Vs- State of Puniab, 2007 (2) Crimes 81 (SC), the Apex Court held that the extra judicial confession can form the basis of a conviction and‘by way of abundant caution, Court may look for some corroboration. (16) Therefore, on the above principles, it is clear that there is no i 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 ‘; i i c‘ontrary, if the evidence of extra judicial confession is reliable, trustworthy and is beyond the shadow of doubts, the same can be ade the sole foundation for recording conviction of the accused ‘ 9 10 Criminal Appeals No. 344 of 2003; 375 of 2003 & 449 of 2004 and the Court by way of abundant caution, may look for some corfoboration. This is all about the extra—judicial confession made by an accused for himself which would be a substantive evidence against him. The law in relation to the extra—judicial confession in which the maker also involves the other accused persons and the evidentiary value of that evidence qua the co—accused persons is on different footings which we shall discuss later on. (17) «Now we shall examine the extra—judicial confession said to be made by appellant Suresh Kumar before the above 4 witnesses. 4 (18) Rajesh Kumar Tiwari (PW—7) deposed that “On 1.3.2002, at about 9.00 a.m., Gulab Bhavnani (PW—10) and Ganesh Prasad Sahu (PW—1 1) came to his place and stated that the dead bodies of deceased Ammu Udashi and Anil Sahu are lying in Mundinala. They went to Mundinala and saw the dead bodies. He telephonically informed the police regarding the dead bodies in nala. They came to know that in the night, the deceased persons had gone for taking liquor and there was some quarrel and then they were killed. Appellant Suresh Kumar has a hotel at Birgahni dhowk. They went to his hotel and saw that the floor of the hotel vias cleaned. They called appellant Suresh and asked about all this. Firstly Suresh tried to avoid them but later on, he stated that dieceased Amardas @ Ammu and Anil Sahu came to his hotel in the night, they had asked for glasses 8L water for drinking liquor, ter taking liquor some quarrel took place between Dharmendra, Slhiv Ram, Chhottu and the deceased persons and thereafter they v ,1.) m Criminal Appeals No. 344 of 2003; 375 of 2003 & 449 of2004 were assaulted by the accused persons by pava of the cot and iron hammer and after the death, their dead bodies were thrown in Mundinala”. (19) Gulab (PW—10)Walso deposed that on 1.3.2002, he was present along with Dharmendra Udashi (PW—15), Rajesh Kumar Tiwari (PW—7) and Ganesh Prasad Sahu (PW—1 1). Appellant Suresh made extra—judicial confession before them as deposed by Rajesh KumarfTiwari (PW—7). (20) Ganesh Prasad Sahu (PW—ll) is the elder brother of deceased Anil Sahu. He deposed that “On the fateful night, at about 8.00 p.m., Anil Sahu left the house saying that he is going in some marriage. He did not return in the night. In the morning, they came to know that the dead bodies of two persons are lying inMundinala. He went to Mundinala and saw that one of the dead bodies was that of his brother and the other was of deceased Ammu Udashi. They had gone to hotel of Suresh Patel. Suresh m‘ade extra—judicial confession before them. Gulab Bhawlani (PW4 x 10), Rajesh Tiwari (PW—7) and other persons were also present thiere” . l l (21) Dharmendra (PW—15) is the brother of deceased Ammu. He also deposed that “Appellant Suresh made extra-judicial ‘\ .,{ \r Confession before them saying that the deceased persons were (I) saulted by him, Gudda Thakur, Shiv Ram Yadav and Chhottu \a 12 Criminal Appeals N0. 344 of 2003; 375 0f 2003 & 449 of 2004 Yadav and when they died, their dead bodies were thrown in Mundinala”. (22) Rajesh Tiwari (PW—7) deposed in examination—in—chief itself that the poliee party/reached Birgahni Chowk after 20—30 minutes of making of the extra-judicial confession by Appellant Suresh Kumar before them. The information regarding murder of the deceased persons was given to the police by Laxminarayan (PW—5). LaXminarayan is the witness to whom the eye—witness, Ishwari i Yadav (PW-9) had narrated about the incident. Though many facts have been menti‘oned in Dehatinalishi (Ex.-P./46) but the facts in relation to making of extra-judicial confession by appellant Suresh Kumar is not mentioned therein. If Suresh Kumar had made extra-judicial confession before arrival of the police to the place of occurrence, as it comes in the evidence of above 4 witnesses, in all probability, somethingabout such confession would have been mentioned in this document. ‘ . (23) Gulab (PW-10) is also a witness to inquest reports (Ex.—P/42 8t] P/43) of the dead bodies of the deceased persons. He did not mention at the time of inquest that appellant Suresh has made extra—judicial confession before them, where- as, the alleged confession was made prior to reaching of the police'fto the”place of odcurrence; Ganesh Prasad Sahu (PW-11) is also a witness of inguest (EX.—P/43) and is elder brother of deceased Anil Sahu. He i also did not make mention about the, alleged extra—judicial confession at the time of inquest. If these persons, one of whom x fi" j 'l Criminal Appeals N0. 344 of 2003; 375 0f 2003 & 449 of 2004 was the close relation of the deceased, were knowing about the incident, Why they did not disclose it to the police on the above opportunities and the facts in relation to making extra-judicial confession by appellant Suresh Kumar came for the first time when their 161 statements were recorded on 5.3.2002. This creates a doubt about making of the extra—judicial confession by appellant Suresh Kumar before'these witnesses on 1.3.2002 prior l to reaching of the police at the scene of occurrence, as claimed by Vf them in their Court evidence. (24) Mill-7, Rajésh Kumar Tiwari has been confronted by his police case diary statement (Ex.—D/ 1) on many points but the important one is that he mentioned in his case diary statement that Suresh denied to accept the incident but when they asked him after pressurizing him, then he told the above incident. This portion has been marked as ‘A to A’ in his case diary statement (EX.—D/ 1) which he did not depose before the Court. Similar is the position of Gulab (PW—10) who also stated in his diary statement (Ex.-D/2) that firstly, Suresh denied the incident but when they asked by pressurizing him, he told about the incident of the night. This portion in his diary statement has also been marked as ‘A to A’ which he also did not depose before the Court. Dharmendra Udashi (PW—15) was also confronted with his diary statement (EX.— D/3) in which he also stated that firstly Suresh did not tell them anything but when he Was pressurized by them, then only, he disclosed the incident. The portion of his such statement has also 14 Criminal Appeals No. 344 0f2003; 375 of 2003 & 449 of 2004 been marked as ‘A to A’ in EX.—D/3 which he did not depose before the‘Court. In appreciation of evidence of these witnesses, firstly it appears to be doubtful that in fact, Suresh made any extra— judicial confession before them at about 8-9.00 a.m. on 1.3.2002, as icontended by these witnesses as nothing about such confession comes in Dehatinalishi (EXP/46) and the inquest reports (EX.—P/42 8a P/43) which was prepared in their presence and Gulab (PW—10) 85 Ganesh Prasad Sahu (PW—11) were parties V . to the inquest ‘reports. Even if it is held for the sake of argument that appellant Suresh made such statement before them7 according to the‘versions of these witnesses in 161 statements, N that was elicited after pressurizing him, which they have omitted to depose before the Court. This shows that if anything was stated by Suresh before these witnesses, that was not voluntary and it appears to have been caused by the inducement by pressurizing him by the said witnesses. a. (25) So far as evidentiary value of the alleged extra—judicial confession of accused/appellant $uresh Kumar against the other co-accused persons are concerned, confession of a co—accused is nlot substantive “evidence” as defined in Section 3 of the Evidence Alct, and can only be “taken into consideration” against the other l aiccused. Hence a conviction of an accused person cannot be i ”founded on the confessions of the co-accused only, if there is no substantive evidence on record on which such conviction can be l‘ l i l l i l l Based. In Kashmira Singh —Vs- State of Madhya Pradesh, AIR Criminal Anneals No‘ 344 of 2003; 375 0f2003 & 449 of 2004 1952 SC 159, the Court has laid down the principles as to the use to which the confession of a co—accused can be put, and it has been held that the only limited use to which such a confession can be put is to refer to it for the purpose of lending assurance to the belief which could be attached to such other evidence, if the Court entertains a hesitation on that point, and of fortifying that beiief. t r (26)“ In Nathu —Vs- State at Uttar Pradesh, AIR 1956 SC 56, it was held that if there is no sufficient substantive evidence upon which conviction can be based, the confession of a co—accused cannot be of any use at all, and should be left altogether out of‘ consideration, because there can be no question of lending assurance to the belief in any evidence if that evidence in itself is insufficient for being made the basis of a conviction. $ ‘ (27) This appears to be a consistent view expressed by the Apex lCourt. In State oi M.P. Through CBI and Others —Vs-, Paltan 1Mallah and Others, (2005! 3 SCC 169, dealing with the same iquestion, the Apex Court observed in Para—18 as under:- l “Another incriminating circumstance sought to be proved against the accused is the extra—judicial confession alleged to have been made by the'ninth accused Paltan Mallah wherein he namedi'A—lrAr—Q, A—5 and A—6. It is alleged that he ’made the confession to PW 105 Satyaprakash Nishad and A—9 is alleged to have disclosed to PW 105 that these accused persons had given him money and he murdered Shankar Guha Niyogi for the sake of x Criminal Anneals No. 344 of 2003: 375 of 2003 & 449 0f 2004 money. Under Section 3O of the Evidence Act; the extra—judicial confession made by a co—accused could be admitted in evidence only as a corroborative piece of evidence. In the absence of any substantive evidence against these accused persons, the extra—judicial confession allegedly made i by the ninth accused loses its significance and there cannot be any conviction based on such extra— judicial confession.” r t , (28)“1’n Baldev Singh —Vs- State at Puniab, (20091 6 scc 564, the Apex Court again held that the