HIGH COURT OF CHHATTISGARH, BILASPUR CORAM : Hon'ble Shri Raieev Guota, C.J. SB Hon'ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 915 of 2002 Fekulal Vs. State of Chhattisgarh JUDGMENT For consideration ^ € Sd/- Sunil Kumar Sinha Judge HON»BLESHRUUSTICERAJEEVGUPTA 5 ^^fCJL^ o Sd/- Chief Justice Post for Judgment :1.0/04/2009 Sd/- Sunil Kumar Sinha / Judge ^ '^7.; HIGH COURT OF CHHATTISGARH. BILASPUR CORAM : Hon'ble Shri Raieev Guota. C.J. 8& Hon'ble Shri Sunil Kumar Sinha. J. APPELLANT RESPONDENT Criminal Anneal No. 915 of 2002 Fekulal S/o Ramdayal Satnami, Aged about - 26 years, R/o Village- Sonbarsa Police Station- Akaltara, District- Janjgir-Champa (C.G.) Versus State of Chhattisgarh Through- P.S. Akaltara, District - Janjgir-Champa (Appeal under Section 374 (2t of The Code of Criminal Procedurel Appearance: Ms. Nirupama Bajpai, Counsel for the appellant. Mr. V.V.S. Murthy, Dy. Advocate General, for the State. JUDGMENT (2.0.04.2009) Following judgment of the Court was delivered by SuniLKumar Sinha, J^ (1) Appellant Fekulal stands convicted u/s 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.100/- by the Additional Sessions Judge, Janjgir in Sessions Trial No. 384/2001 on 24.4.2002. (2) The facts, briefly stated, are as under:- Deceased Ramdin was uncle of the appellant. He has kept the appellant as his son from his childhood. Deceased had a daughter namely Sahodra Bai. Deceased wanted to give half of / € Criminal Appeal No. 915 of 2002 his property to Sahodra Bai and half to the appellant Fekulal, but, the appellant wanted to take entire property of the deceased. On this account some quarrel had taken place earlier and the report was also lodged in the police station. On 19.7.2001, the appellant and the deceased got down from in bus in village Urga and were going to their village. The allegations are that on the way, the appellant committed murder of the deceased by assaulting him with stones. Thereafter, he went to village side and made extra judicial confession before Shrawan Kumar (PW-7) and Vishnu Kumar (PW-10). The villagers immediately rushed to the place of occurrence and saw that the dead body of the deceased was lying by the side of the road. Village Kotwar Hardas (PW-1) also reached to the place of occurrence, got this information, and lodged the First Information Report (Ex.-P/l) as also the Merg Intimation (Ex.-P/2) in outpost Baloda on the same day at about 19.45 hours. Based on such report, the information was registered in police station Akaltara under Ex.-P/16 on the next day and the investigation commenced. The Investigating Officer reached to the scene of occurrence, gave notice (Ex.-P/4) to the Panchas and prepared inquest (Ex.-P/5) on the body of the deceased. Blood stained soil and plain soil were seized from the place of occurrence under Ex.- P/6. The cloths of the deceased were seized under Ex.-P/3. The dead body of the deceased was sent for its post-mortem to Govt. Health Centre, Baloda underEx.-P/7, where the post mortem examination was conducted by Dr. U.K. Tiwari (PW-5), who / Criminal Appeal No. 915 of 2002 prepared his report Ex.-P/S. The Autopsy Surgeon noticed the following injuries on the body ofthe deceased :- (i) Lacerated wound on skull above right ear pinna; size 2.5x 3/4 x y2 cms., internal bone was visible; (ii) Lacerated wound on the back portion of the skull; size 4 x ^ x V2 cms., internal bone was visible; (iii) Lacerated wound on the right ear; size 1.5 x ^ x 3.5 cms, internal bone was visible with fracture 85 (iv) Lacerated wound on the skull; size 7 x 4 x4.5 cms., there was fracture of underline bone, it was crushed and the brain matter has come out. All the injuries were ante-mortem in nature. The Doctor opined that the cause of death was haemorrhagic shock due to injuries on scalp and vital organ, brain and it was homicidal in nature. In further investigation, after taking the accused/appellant into custody, his memorandum statement u/s 27 ofthe Evidence Act was recorded on 20.7.2001 under Ex.-P/18 and blood stained stone was seized at the instance of the appellant under Ex.-P/19. The said article was sent for examination to the Doctor under Ex.- P/17, who gave his report Ex.-P/9 to the effect that the injuries found on the body of the deceased may be caused by such article. The seized articles were sent for their chemical examination to Forensic Science Laboratory, Sagar under Ex.-P/21, from where a report Ex.-P/23 was received. According to the F.S.L. report, blood stains were confirmed on the soil, stone and the cloths of the deceased. ^- ^4 Criminal Aweal No. 915 of 2002 (3) After completion of usual investigation, the charge-sheet was filed in the Court of Judicial Magistrate, First Class, Janjgir, who in turn committed the matter to the concerned Sessions Court, from where it was received on transfer by the Additional Sessions Judge, Janjgir, who conducted the trial and convicted and sentenced the accused/appellant as aforementioned. (4) The conviction of the appellant is mainly based upon the extra judicial confession made to Shrawan Kumar (PW-7) and Vishnu Kumar (PW-10) coupled with many other attaining circumstances. The learned Sessions Judge found the following circumstantial evidence proved against the appellant:- (i) The deceased wanted to give his half property to his daughter Sahodra Bai; (ii) The appellant wanted to take entire property and was not willing that the deceased should give half property to his daughter Sahodra Bai; (iii) A quarrel had taken place earlier also on account property dispute, in which, the appellant had assaulted the deceased and a report to this extent was lodged in the police station; (iv) The appellant made extra Judicial confession before Shrawan Kumar (PW-7) and Vishnu Kumar (PW-10); (v) Shrawan Kumar and Vishnu Kumar went to the place of occurrence and saw the dead body of the deceased lying by the side of the road and they also saw the injuries on the skull of the deceased. (vi) The appellant gave discovery statement to the police, on which, blood stained stone was seized at the instance of the appellant; (vii) The Autopsy Surgeon opined that the injuries sustained on the body of the deceased could be caused by the stone seized at the instance of the appellant 85 (viii) According to the F.S.L. report, blood stains were found on the seized stone. Criminal Appeal No. 915 of 2002 (5) Ms. Nirupama Bajpai, learned counsel appearing on behalf of the appellant, has mainly argued on the extra judicial confession. She argued that PW-7, Shrawan Kumar and PW-10, Vishnu Kumar, were not reliable witnesses, therefore, the extra judicial confession was not proved. (6) On the other hand, Mr. V.V.S. Murthy, learned Dy. Advcoate General appearing on behalf of the State, opposed these arguments and supported the judgment and order passed by the learned Sessions Court. (7) We have heard the learned counsel for the parties at length and have also perused the records ofthe sessions case. (8) Shrawan Kumar (PW-7) deposed that "on the fateful day, the appellant met him near the house of one Bhujal Yadav. The appellant asked taking his name as to where he is going ? He replied that he is going to his house to bring gunny bags. The appellant stated to him that he has killed his uncle Ramdin. The appellant also requested him to tell all this in the village. After hearing all this, he went towards Indira Aawas place and saw that the dead body of the deceased was lying by the side of the road. The deceased had received injuries on his head and blood was coming out from the injuries??. (9) Vishnu Kumar (PW-10) is a boy of 15 years. He deposed that "on the fateful day, when he went to school, a person of village Sonbarsa came to him and stated that his uncle was killed. That person requested him to go and tell this in the village. He immediately went to the village and told all this to Gorelal. Gorelal came with him and ^'\:^^^ ^^\ v^. ^ Criminal Appeal No. 915 of2002 identified the appellant FekulaF. Gorelal has been examined as PW-2 but he has turned hostile and has not supported the case of prosecution. (10) While dealing the principles relating to extra judicial confession, the Apex Court held in the matter of State pf U.P. -vs- M.K. Anthony (1985) 1 SCC 505 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 other 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 niay tend to indicate 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 of the 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 conviction, 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 beyond reproach the same can be relied upon and a conviction can be founded thereon." (11) Therefore, on the basis of above principles, 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 ^ R Criminal Appeal No. 915 of2002 should be corroboration by some other evidence. On the contrary, ifthe 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 accused and the Court by way of abundant caution, may look for some corroboration. (12) Ifwelook into the evidence ofVishnu Kumar (PW-10), it doesnot inspire confidence of the Court, as the same is not clear and unambiguous on material points. This witness was not knowing the appellant, he deposed that the appellant was identified by Gorelal (PW-2), but Gorelal does not supports this witness. Therefore we reject his testimony. So far as testimony of PW-7, Shrawan Kumar, is concerned, that cannot be discarded. There is no niaterial to show that this witness was biased or inimical to the accused, even nothing could be brought on record which may tend to indicated that he may have a motive for attributing an untruthful statement to the accused. The words spoken to by this witness are clear, unambiguous and unmistakably convey that the appellant had committed the murder of his uncle. Even the appellant had taken the name of his uncle before this witness which he mentioned in his evidence. Though this witness has been put to lengthy cross examination by the defence, but the defence has not been able to elicit any such circumstance on which his testimony may be discarded. Therefore, we find that the prosecution has been able to prove the motive as also the circumstance of extra judicial confession against the appellant. Since the appellant was not willing that even half of the property should be given to the daughter of the deceased and he was unhappy with the decision of the deceased \ that he would be getting only half of his property and the background \ €S^\. '^ Criminal Aopeal No. 915 of 2002 that earlier also quarrel and marpit have taken place between the appellant and the deceased on this count, there was a strong motive with the appellant to kill the deceased. The factum of extra judicial confession proved against the appellant coupled with the above evidence of motive, are strong circumstantial evidence in this case and the learned Sessions Judge has rightly relied on them convicting the appellant u/s 302 IPC. (13) There is no illegality or infirmity in the judgment and order passed by the learned Sessions Judge. (14) The appeal has no merits, the same is liable to be dismissed and is accordingly dismissed. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge vatti