..r"%..,.. ^"':^€\ :: /'.t>^ '^' fc^ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: Coram: HON'BLE Mr.T.P.Sharma & HON'BLE Mr.R.N.Chandrakar, JJ. Appellant (In Jail) Respondent Criminal Appeal No.108 of 2006 Anil Kumar S/o-Sukhal Uraon Aged about 32 years Occupation Labour R/o- Kari Chhapar, Matin P.S.Bango Tahsil- Katghora Distt-Korba (C.G.) Versus State of Chhattisgarh (Criminal Appeal under Section 374 ofthe Cr.P.C.) Mrs.Hamida Siddiquc, counsel for the appellant. Mrs.Madhunisha Singh, Panel Lawyer for the State/respondent. JUDGMENT (Passedon 25th July, 2011) PerT.P.Sharma,J.:- 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 2.12.2004 passed by the Sessions Judge, Korba, in Sessions Trial No.03/2004, whereby & whereunder learned Sessions Judge after holding the appellant guilt for commission of culpable homicide amounting to murder of Urmila Bai and concealing the evidence of criminalcase while acquitting other three accused persons convicted him under Sections 302 and 201 of the I.P.C. and sentenced to undergo imprisonment for life and to pay fine of Rs.2000/-, in default of payment of fine to further undergo R.l. for one year and R.l. for three years and to pay fine of Rs.500/-, in default of payment of fine to further undergo R.l. for six months. 2. Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted & sentenced the appellant as aforementioned and thereby committed illegality. //"i"^ 1 ^»gfs, 1 ^SS&Nss X y/ \^cy 3. As per case of the prosecution, on the fateful day of26.10.2003 at about 8 p.m. the appellant Anil, nephew of unfortunate deceased Urmila Bai, came to the house of Urmila Bai for inviting her on the occasion of Diwali festival, Urmila Bai went to the appellant in his house where on account of suspicion of witchcraft the appellant committed murder of Urmila Bai and buried dead body in his manure ditch adjoining to his house. The appellant rushed to the house of Nansai, brother-in-law of Chhotu Ram (PW-1) who he made extra judicial confession in the presence of Bhaiyalal (PW-12) and Shrilal (PW-13). On second day morning Chhotu Ram (PW-1), son of deceased Urmila Bai search his mother whom Nansai (PW-5) informed about the incident, then he went to the house of appellant Anil who was not present in the house, then he went to Police Station Bango and lodged the F.1.R. vide Ex.P/2. He also made application before Police Station Bango vide Ex.P/2. Investigating officer proceeded for scene of occurrence and after summoning the witnesses vide Ex.P/7 prepared inquest over dead body of Urmila Bai vide Ex.P/6. Spot map was prepared by investigating officer vide Ex.P/3. Panchnama of manure ditch where dead body of Urmila Bai was buried was prepared vide Ex.P/4. Broom used for cleaning the house of appellant was seized vide Ex.P/8 from Hadmohrin, wife ofthe appellant (co-accused) and from co-accused Sundri Bai vide Ex.P/9. Dead body ofthe deceased was sent to Block Medical Officer, Primary Health Centre, Podi-Uproda where Dr.Kiran Bala Sonkar (PW-6) vide Ex.P/18 and found following injuries and symptoms:- (i) Eyes and mouth were opened. (ii) Both the knees were tied by nylon rope. (iii) Sand and soil were present over the body. (iv) Upper part of abdomen was also tied by rope. (v) Most part of the neck was chopped except few muscles andskin part. (vi) Fracture of lower law. (vii) Internal parts of the neck and cervical vertebra were fount cut. (viii) Incised wound of 2" x 1/z" over left eyebrow comprising fracture of bone. "•3'^.. ^ '^ .^•-' ,,,-.^^ '^\ \ '/f7^ v .,^;, ».^ ^y fc (ix) Incised wound over right shoulder of1^". (x) Lacerated wound over left elbow joint of %". (xi) Lacerated wound over left knee of1/^". Cause of death was asphyxia and shock. Injuries were ante-mortem in nature. During the course of investigation, the appellant was taken into custody, he made disclosure statement of clothes vide Ex.P/10, same was recovered along with two spades, bloodstained & plain soil vide Ex.P/16. Co-accused Lalaram made disclosurestatementofaxe/betel axe vide Ex.P/11, same was recovered at the instance of Lalaram from appellant Anil Uraon vide Ex.P/10. Bloodstained cot was seized from the appellantvide Ex.P/13.Axe was seized from co-accused Lalaram vide Ex.P/14. Bloodstained & plain soil were recovered from courtyard of the appellant vide Ex.P/15. Bloodstained clothes of the appellant were seized from the appellant vide Ex.P/17. Patwari also prepared spot map vide Ex.P/26. Sealed cloth ofthe deceased was seized vide Ex.P/25. 4. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Katghora, who in turn, committed the case to the Court of Sessions, Bilaspur and after constitution of new Sessions Division, Korba, case was transferred to Sessions Division, Korba. 5. In order to prove the guilt of the accused, the prosecution has examined as many as twelve witnesses. Statements of the accused were recorded under Section 313 of the Cr.P.C., in which they denied the circumstances appearing against them and pleaded innocence and false implication in the crime inquestion. 6. After providing opportunity of hearing to the parties, learned Sessions Judge while acquitting other three accused persons convicted & sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 8. Learnedcounsel for the appellant vehemently argued that conviction is based on the evidence of last seen theory of Chhotu Ram (PW-1), son of ^- the deceased and alleged extra judicial confession made to Nansai (PW-5), son-in-law of the deceased. Evidence of both the witnesses does not inspire confidence and trustworthy, their evidence are unnatural. As per evidence of Nansai (PW-5), the appellant made extra judicial confession to him at 11 p.m. about murder of his mother, but reason best known he has not taken immediate action, although he was with other two persons. Even on second day morning he has not tried to inform son of the deceased or to Police. Likewise as per evidence of Chhotu Ram(PW-1), son ofthe deceased, at the instance of appellant's invitation, his mother accompanied the appellant and went to the house of the appellant but she did not return in the night. On second day morning it would have been his natural conduct to ask the appellant or his family members about his mother but instead of asking whereabouts of his mother he went to village for searching his mother. It shows his unnatural conduct and shows that both the witnesses were hiding real facts. In these circumstances, their evidence cannot be relied upon without further corroboration from independent sources. 9. On the other hand, learned State counsel supported the judgment impugned and argued that evidence of Chhotu Ram(PW-1) and Nansai (PW-5) well corroborated by the evidence of Shrilal (PW-13) to the extent of presence of the appellant at 11 p.m. when Bhaiyalal (PW-12) and Shrilal (PW-13) were present. Learned counsel further arguedthat after appreciating the evidence available on record, the Sessions Judge, Korba while acquitting three co-accused persons on the ground of insufficiency of evidence has rightly convicted & sentenced the appellant as aforementioned. 10.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 11.1n the present case, homicidal death of as a result of fatal injuries virtuallychopping of neck of the deceased has not been substantially disputed on behalf of the appellant, even otherwise, it is also established by the evidence of Dr.Kiran Bala Sonkar (PW-6) and autopsy report Ex.P/18. Death of Urmila Bai washomicidal in nature. ^G-^ ^&..-^ 'l 1 S 1 ''^^^^^, j^ &.-J.J '„,^^.^ l^- 12.As regards the complicity of the appellant in the crime in question, conviction is substantially based onthe evidence of Chhotu Ram (PW-1), Nansai (PW-5), Bhaiyalal (PW-12) and Shrilal (PW-13). As per evidence of Chhotu Ram(PW-1), son of the deceased, on the date of incident at evening time the appellant came to his house, he invited his mother for meal on the occasion of Diwali festival. Her mother Urmila went to the house of the appellant along with theappellant, she did not return at night. At morning time he was going towards village for search of his mother where he met with Nansai who told him that the present appellant has killed his mother and has buried in ditch, then he went to the house of the appellant where the appellant was not present, then he went to Sarpanch Kapil Dev Singh and also went to Police Station and made complaint Ex.P/1 and lodged F.I.R. vide Ex.P/2. Kapil Dev (PW-3) has corroborated the evidence of Chhotu Ram (PW-1). As per evidence of Nansai (PW-5), brother-in-law ofChhotu Ram(PW-1), on the occasion of Diwali festival at about 1 1 p.m. he was present in his house where the appellant came and made extra judicial confession that he has killed Urmilabai and dead body was lying in hiscourtyard, the appellant requested for help of disposal of dead body, the appellant caught hold his hand and dragged him to his courtyard where he saw blpodstained dead body of Urmila, anyhow he rescued himself from clutches of the appellant and fled to the house of Shrilal where Shrilal and Bhaiyalal were present whom he narrated the factum of extra judicial confession, he was under fear, therefore, he stayed in the house of Shrilal. On second day morning between 8 to 9 a.m. he was going towards his house where he met with Chhotu (PW-1) whom he informed the aforesaid fact and extra judidal confession made by the appellant. 13.Bhaiyalal (PW-12) has deposed in his evidence that Nansai came to his house and informed that the appellant has killed mother of Chhoturam. Shrilal (PW-13) has not supported the case of the prosecution, but has admitted the fact that at about 1 p.m. he along with Bhaiyalal were sitting near fire, at that time Nansai came to his house. The prosecution has declared Shrilal (PW-13) hostile, but he has admitted the fact to the extent that in the intervening night of the alleged incident Nansai came to him when he was sitting with Bhaiyalal. ff^ %1 ^y € 14.Defence has cross-examined Chhotu Ram (PW-1) at length, but has not been able to elicit anything in his cross-examination to discredit his testimony, especially relating to the fact that the present appellant has not invited and taken deceased Urmila to his house in the intervening night of 26/27.10.2003 and on second day dead body of Urmila Bai buried in ditch was found. This witness has specifically deposed that his mother had gone to the house of the appellant along with the appellant and she did not return at night but he has not went to the house of the appellant for asking him for whereabouts of his mother and instead of going to the house of the appellant he went towards village. This part of the evidence and conduct of the witness do not appear to be natural but subsequent conduct of the witness does not make his evidence suspicious or inadmissible in evidence especially relating to last seen theory. 15.Last seen theory is a weak type of evidence and if it is corroborated from independent sources, then same may be sufficient for conviction of the accused. While dealing with the question of evidentiary value of last seen theory and nature of explanation that when the accused parted the company of the deceased the Supreme Court in the matter of State of Goa v. Sanjay Thakran and another and another connecfed appeal has held that in case of last seen together the proof of last seen together would be relevant if the prosecution establishes that in the intervening period there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime. Para 34 of the said judgment reads thus:- "34. From the principle iaid down by this Court, the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it '(2007) 3 SCC 755 G cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap jn this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission ofthe crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, thena relatively wider time gap would not affect the prosecution case." 16. While dealing with the same question, the Supreme Court in the matter of Sahadevan alias Sagadevan v. State represented by Inspector of Police, Chennai has held that ifthe prosecution on the basis of reliable evidence establishes that the missing person was last seen in the company of the accused and was never seen thereafter, then it would be obligatory on the accused to explain the circumstances in which the missing person and the accused parted company. Para 19 of the said judgment reads thus:- "19. The last circumstance relied on by the courts below pertains to the stand taken by the appellants in the trial as to parting company with Vadivelu. Here we must notice that as discussed hereinabove, the prosecution has established the fact that Vadivelu was seen in the company of the appellants from the morning of 5.3.1985 till at least 5 p.m. on the same day, when he was brought to his house and thereafter his dead body was found in the morning of 6.3.1985. Therefore, it has become obligatory on the appellants to satisfy the court as to how, where and in what manner Vadivelu parted company with them. This is on the principle that a person 2(2003) 1 SCC 534 ^^s^\. y' ^i. ^ "i. '% t^. jy -^ '%.... ^^.^ ^^^:^ ^l c" who is last found in the company of another, if later found missing, then the person with whom he was last found has to explain the circumstances in which they parted company. In the instant case the appellants have failed to discharge this onus. In their statement under Section 313 Cr.P.C. they have not taken any specific stand whatsoever. In the evidence of PW-25, it is elicited that on 5.3.1985 in the afternoon when Vadivelu was produced before the said witness, he after interrogation allowed Vadivelu to go, but then it is found from his evidence that he instructed A-1 to keep a watch over Vadivelu. In such circumstances, it was jncumbent upon A-1 to have explained to the court in what circumstances they parted company. He has not given any explanation in this regard. On the contrary, the prosecution has established the fact that on the very day at about 5 p.m., Vadivelu was brought to the house of PW-1 by the appellants which was seen by PW-5. This part of the evidence of PW-5 has gone unchallenged in the cross- examination and, therefore, we will have to proceed on the basis that, what is stated by PW-5 in this regard is true. If that be so, the prosecution has established the fact that on 5.3.1985 at 5 p.m. Vadivelu was still in the company ofthese appellants and, therefore, in the absence of any specific explanation from the appellants jn this regard, and in view of the other incriminatingcircumstances against the appellants having been proved by the prosecution, an adverse inference will have to be drawn against these appellants as to their part in the missing of Vadivelu. At this point, it may be relevant to note that though no specific stand has been taken by the appellants as to their parting company with Vadivelu, in theirstatement under Section 313 Cr.P.C., it is seen from the evidence of PWs.1 and 5 that A-1 told the said witnesses on the night intervening between 5-3-1985 and 6- 3-1985 that Vadivelu had escaped from the Police Station when he was allowed to sleep in the verandah of the Police Station. This explanation given by A-1 to PW-1 which was also heard by PWs.5 and 14, clearly shows that the same is totally false and obviously was an excuse made by the appellants to conceal the true facts and, therefore, this circumstance of A-1 making a false statement to PW-1 can also be taken as a circumstance against the appellants, in establishing the appellants' guilt. This Court in more than one case has held, that if the prosecution, based on reliable evidence, establishes that the missing person was last seen in the company of the accused and was never seen thereafter, it is obligatory on the accused to explain the circumstances in which the missing person and the accused parted company. See Joseph v. State of Kerala [2000 5 SCC 197]. Therefore, we are in agreement with the finding ofthe courts below that circumstance No.7 also stands established against the appellants." .•..€^-M:-^^^-\ .^;'>">:'.,...7^y ^ . 'v. "^ .-< 17.Defence has cross-examined Nansai (PW-5) at length, but has not been able to elicit anything in his cross-examination to discredithis testimony except the fact that he has not informed Chhotu in the night time which has explained that on accountof fear he stayed in the house of Shrilal instead of going to his house. His immediate action of reaching to Bhaiyalal (PW-12) and Shrilal (PW-13) has been corroborated by Bhaiyalal (PW-12) and Shrilal (PW-13) which shows that he rescued himselffrom clutches ofthe appellant, rushed to the aforesaid witnesses and stayed in the house of Shrilal. 18.As per case of the prosecution, the appellant has committed homicidal death of Urmila Bai i.e. mother-in-lawof Nansai (PW-5) in his house and he dragged Nansai (PW-5) to his house for secret disposal of dead body where he saw bloodstained and injured dead body of Urmila Bai, in these circumstances, fearwas not unnatural. IQ.Extra judidal confession is generally of weak type of evidence. No conviction ordinarily can be based solely thereupon unless same is corroborated in material particulars. While dealing withthe question of the evidentiary value of extra judicial confession, the Supreme Court in the matter of Baldev Singh v. State of Punjab3 has held that extra- judicial confession is generally of weak type of evidence. No conviction ordinarily can be based solely thereupon unless same is corroborated in material particulars. 20.While dealing with the same question, the Supreme Court in the matter of Mohd. Azad @ Samin v. State of West Bengal4 has held that if extra-judicial confession made voluntarily and truth in a fit state of mind then it can be relied upon and confession will nave to prove like in any other evidence. Para 22 of the said judgment reads as under:- "22. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. Theconfession will have to be proved like anyother 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 32009 AIR SCW 3730 42009 AIR SCW 752 10 ^p gives 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, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied ypon ths 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 inimicalto 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 untruthful statementto 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 bythe 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." 21.Evidence of Nansai (PW-5) well corroborated by the evidence of Bhaiyalal (PW-12) and Shrilal (PW-13) up to some extent relating to extra judicial confession and evidence of Chhotu Ram (PW-1) relating to last seen theory corroborated by the evidence of Kapil Dev (PW-3) are if considered together, then inference would be possible that the present appellant has caused homicidal death of deceased Urmila Bai and except the present appellant none other has caused homicidal death of Urmila Bai. It also excludes the possibility of innocency of the appellant. Neck of Urmila Bai was chopped after calling her in his house shows grave intention of the appellant for causing homicidal death with intent to cause death ofdeceased Urmila Bai. 22.After appreciating the evidence available on record, learned Sessions Judge has convicted & sentenced the appellant as aforementioned. 23.0n close scrutiny of the evidence, we do not find any illegality or infirmity in the judgment impugned warranting interference. 24.Consequently, the appeal being devoid of merit is liable to be dismissed and it is hereby dismissed. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge ^