HIGH COURT OF CHHATTISGARH AT BILACTUR &imiaal Appeal No. 41/2003 APPELLANT (In Jail) VERSUS Jhunnulal son of Narayan aged 45 years, resident ofviUage Paradol, PoUce Station Maaendragarh, District Koriya (CG) RESPONDBHT State of Chliattisgarh through PoUce Station- Manendr^arii, Distnct Korya (CG) :S8;8lU8i( CRJMIHAL APPE&L UWDER 8ECTION 374 OF THE CODB OF CRIMINAL PROCBDURE Appearance: Smt. Indira. Tripathi and Shri Shashi Kumar Kushwaha, counsel for ttie appeBaut. SIui D.K. Gwalre, Govenunent Advocate for fhe State. Divlsion Beach:- Hoa'ble Shri T.P. Sharma & Hon'ble Shri R.LrtJhaawar.JJ Per T.P.Sharma, j. ORAL JUDGMENT (25,01.2010) 1. ChaUeuge in this appeal is to fhe judgmeat of conviction aad order of sentencc dated 28.10.2002, passed by the Addttional Sessions Judge, Manendragargh, District Konya (CG) ia Sessfons Trial No. 153/2002, whereby aad whereunder fhe leamed Additional Sessions Judge afier holdiag the appeUant giuUy for coiamission of causiag homicidal deafh, amounting to niurder of his wife - Mankunwar, while acqtiittmg the accused Ramprasad, vs •^ ^ ^ j fr^/ Dhaunu Singh aud Budhraram, convicted fhe appeUant-.JIiunnulal under Section 302 of the IPC and sentenced to undeiy imprisoninent for life aud to pay a fine of Rs.500/ -, iu default of payinent of fine to further undei^o R.I. for 5 mouths. imst 2. The judginent uupugned is chaUciiged on the gBound that without aay credible and cUnching evidence, thc Court below has convicted aud sentenced thS appeUaat only on the basia of extra judicial confession made before :his chiUren i.e. his son Sundar (PW-1), Manmati (PW-2) wife ofSunder and Gulab (PW-3) son and thereby coiniaitted iUegalily. 3. The case offhe prosecution is that fhe dece^ed-Maakunwar was residing with ths appeUant at viUage -Paradol, District Korya. Oa fhe fateful day of 23.11.2001, on fhe ground of witehcraft, other three co-accused persons condemned fhe deceased before the appeUant, on which, he caused death of his wife by straiigulating her wifh a shawl in fhe night. Ncxt vaomia^, the appeUaat niade disclosure extra judicial confessiou before his cluldren i.e. his son Sundar (PW-1), Manmati (PW-2) wife ®f Sunder aad Gulab (PW-3) son. Szmdar (PW-1) lodged First Information Report vide Ex. P/l. Merg iatunation was recordcd vide Ex. P/8. The Investigatitq; Officer left for fhe scenc of occurrence aad after siumnoiung witnesses, iaquest ovcr the dead body of fhe deceased was prepared vide Ex. P/2. Dead body was sent for autopsy to Cominunity Healfh Ccutre, ManendragaA vidc Ex. P/6-A. Autopsywas couducted by Dr. P. K. Rohaa (PW-6) vide Ex.P/6 and fouad dark coloured Ugature inark over the neck 2cm x 8" aad abrasions over fhe knee, back aad shoulder ofthe deceased and cause of deafh was asphyxia as a result of throtflmg. The deafh was homicidal ia nature. One shawl was recovered 6x>m. the spot vide Ex. P/3. Spot map was prepared vide Ex.P/4 and Ex. P/5. Sealed ardcles were seized vide Ex. P/9. Statemeats offhe '^ ^-^. &! "5S-. ''•' witaesses were recorded under Sectk>n 161 ofthe Code ofCnminal Proceduie, 1973, 4. Afler corapletion of iuvestigatioa, chai^e sheet was filed before the Judicial Magistrate First Class, Maaendragarh, who in tum, committed the case to the Coxirt of Sessions from. wheiie fhe leamed Additional Sessions Judge, Manendr^arh, District Kortya received the case on traasfer fbr trial. \. 5. In order to prove ttie guilt ofthc appeBaat and other accKsed persoas, prosecutiou has examined as many as 9 witaesses. Accused persons were examined under Section 313 of the Code of Crimiual Procedure ia which they deiiied the circumstances appearing against thein, pleaded innocence and false nnplicatiou. 6. After affordiitg opporttmily of hearing to the parties, leamsd Additional Sessions Judge has acquitted fhe three accused peraons Ramprasad, Dhannu Singfa and Budluaraai under Section 302/109 of the IPC, whereas, conwicted fhe appeBaat-Jhunniilal under Section 302 ofthe IPC for commission ofmiuderafbiswife- Mankunwar aiid sentenced as above. 7. We have heard leamed counsel for the parties, perused Ae judgment aad record offhe trial Court, 8. Leamed counsel for the appeUant veheinenfty argued fhat fhe extra judicial confession made by the appeUaat before Sundar (PW-1), daughter-iu-law- (wife ofSunder) Manmati (FW-2) and soa Gulab (PW-3), te not reliable. The stateiaents of these witnesses are self contradictory. Prosecutiou has not adduced any other evidence to corroborate fhe factuin of extra judlcial eonfession. They fiirther argued fhat even if the case of prosecution is considered to be true then also the conviction of fh.e appellaat uiider Secdon 302 of thc IPC would not be sustauiable as on w sudden provocation \sy ofher fhree co-accused persons, the appeBaut has coiiunittcd homicidal deafti of his wife- Mankmumu", therefore, the act offtie.appellantdoesnot travelbeyond SectiDn 304partIIofIPC. 9. In order to appreciate fhe aiguinents of the parties, we have exaiuined the evidcnce adduced onbehalfofthe prosecution. •I-'L 10. Ia fhe present case, hoinicidal death as a resiilt of throttliag/straagulatiou is not: substaatiaUy disputed by the appeBant On fhe ofher Iiand, it is also estabMshcd by tfae evidence of Dr. P. K. Rohan (PW-6) and Autopsy report Ex. P/6, which revealed that the cause ofdeath was ssphysda as a restilt of fhrotUuig/strangulatioa aud the death was honaicidal in uaturc. 11. As regard coiapUcity of the appeUant in the cruae in qncstion ia conceraed, the conviction of the appeBant is based on extra judicial confession inade before his two sows and dai^titer in- law. Sundar (PW-1) son of the appeUant has deposed in his ewdence that fhe appeUaat and his inottier were residing toyfher. Tfae appeUaat caxae to him at about 4.00 a.m. and made disctosiHC stateinent that he had kiUed tiis wlfe- Maakuuwar i.e. mofher of Sundar. Then he went to see his niofher aud saw that dead toody of his mother was lyiug near Power house iu the viU^e, thereafter, he lodged First Itifonnation Report vide Ex. P/l. Manmati (PW-2) tsas also deposed that fhe appellant, who is her fafher ia law, caaae at about 4.00 a.m. and stated that he has kiUed his wife near fhe electric pole. Gulab (PW-3) has also deposed in his cvidence that at about 4.00 a.iu. fhe appeUant caiue to Tiim aud inade disclostue stateinent fh.at he had killed his wife Maukuawar Le. mofhcr of Gulab. In cross examination, Suadar (PW-1) has dcposed ia para 5 that relations between fhe deceased aad the appeBant were cordial. Marunati (PW-2) has also admitted iu her cross examination that when lus father in law/appeUaat came and made ^—T? extea judicial confessiott, at that tiine, her husbaad- Siuxlar (FW- 1) was also present,. 12. Defence has cross examined Suadar (PW-l), Manmati (PW-2) aud Gulab (PW-3), but faas not been able to cUcit aayfhu^ ia their cross exammation to discredit the fact fhat thc appellaat has not inade extra judicial confession before them. Alfhough cxtra judicial confession is a ,mate picce of evidence, but once it us proved to be ta-ue then the sanae is sufficieat for conviction. 13. While deaUng with the cvidentiaiy value of cxtia-judicial confession made under Section 24 of the Evidcnce Act, tfae Apex Court in. fhe matter of BaMev SinjSh v. State of Puajab1 has heM that cxtra-judicial confession is generaUy of weak 1ype of evideuce. No conviction oidiaarily can be based sotely fhereupon unless same is corroborated in uiaterial particulars. 14. While dealiug wifti fhe sanie question, the Apex Court in the matter ofMohd. Azad ® Sainin v. State ofWestBeagal2 has held that if extra-judicial confession inade voluntarily aad truth in a fit state of miud then it can be reUed upon aud coafession wiU bawe to prove Uke ia any ofher evideace. Para 22 of fhe saM judgmeat reads as under:- *22. An extra-judicial confession, if voluntaiy and true and inade in a fitstate of mind, caa be i^Ued upon by the court. The confession will have to be proved Uke auy other fact. The value of fhe evidencc as to confession, like any offaer evidence, depends upon fhe veracily^of fhe wltness to whoni it ttas been laade. The value of the evidence as to the confession depends on the reliabilily offhe witaess who gives (he evidence. It is not open to aay court to start wiffa a presiunption fhat extra-judicial confession is a weak type of evidence. It would depcnd on the nature of the circuinstauces, fhe tune when the coiifession was inade and the credibility of fh.e witnesses who speak 12009 AIR SCW 3730 • 22009 AIK 5CW 752.- ^""-^ ,rf" •.'"•Sf t & 3 'Q 8 to such'a coiifession. Such a confession can be reBed upon fhe conviction caa be foimded fhereon if the evidence about fhe confession coines fiTom the mouth of witnesses who appear to be unbiased, not cven reniotely mimical to fhc accused, and ia re^)ect of whoni npthiag is brought out which may tead to indicate fhat he may have a inotnre of attributmg aa UD.trufhful statement to the accused, the werds spokeii to by fhe witness are clcar, unambiguous and uniiiistakably convey fhat the accused is fhe perpetrator oftbe crime aud nofhiag is oinitted by fhe witness wtiich^ may Tnflitate against it. After subjecting flie evidence of fhe witaess to a rigorous test on fhe touchstone ofcredibility, the extia-judicial confessioa caa be accepted aud cau be fhe basis of couviction ifit passes fhe test ofcredibitily*' 15. In fhe present case the extea judicial coiifession made by the appellant before his son- Sundar (PW-l), dai^hter iu law (wife of Sunder)- Manmati (PW-2) aiid sou- Gulab (PW-3) is cortoborated by the Firat Iirformadon Report Ex. P/1 as also fhe xnedical evidence Ex. P/6. Thc evidencc of Sundar (PW-1), Manmati (PW-2) and Gulab (PW-3) inspires confidence of the Court and it is sufficient for convicting aad sentenciug fhe appeUaat under Section 302 of the IPC for coaunission of nnirder of his wife- Maakunwar. 16. As regards the question of motive is concemcd, althou^i in case of direct evidence, motive loses its importauce. Even otherwise, motwe is oiily aid in criminaltty, but in caae of Gircunistaatial evidence, motive has great role. In thc present case, the three other co-accused person have condemned the deceascd before fhe appeUaat on the groiuid ofwitehcraft and fhe appeUaat on sudden provocation, assaulted the deceased by ttuottling her neck. Prior to fhe iacident, ftiere was no motivc fbr causiag such injuiy to ftie deceased. Coaaulering fhe aUeged act ofwitehcraft by the deceased, fhe appeUant on suddeu provocation has oonunitted fhe offence. Thc circumstaaces shown by the evidence rCTealed pr '.l^^ J/ 1S.--'" fhat the appeBaut has nbt caused culpable h.0micide aiaoitntrag to murder of his wife, but has caused hoinicidal dcath of his wife when he was provoked on the ground ofwitehcraft. Therefore, fhe act of fhe appeUaat does not travel beyond fhe scope of Sectk>n 304 part II of fhe IPC ahd the Court below has convicted and sentenced the appeUant uader Sectiou 302 of the IPC, but has not considered the circumstances, in which, the affence has been cotumitted aad thereby conmutted illegality. \. 17. On close scrutmy of fhe evidcnce, we are of the considered opiaion that the conviction ofthe appcUaut uader Sectk>n 302 of the IPC is not susteiuable under law and the act of fhe appeBant does not teavel beyond the scope of Section 304 Part II ofthe IPC. 18. Consequently, ftie appeal is parfly aUowed, Convkrtion ofthe appeUaiit under Section 302 of fhe IPC is altered into Section 304 part II of the IPC aad sentenced impnsoruuent for custodial period i.e. siuce 25.11.2001 tiU today. He be released forthwith, if net reqiiired in aay ofher case. _^ i Sd/- sunita Sd/- T.P. Sharnia Judge R.L. Jhanwar Judge