HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hon’ble Shri Justice Sunil Kumar Sinha and Hon’ble Shri Justice Radhe Shyam Sharma Criminal Appeal No.1 146 of 1995 Appellant Shania Korva, son of Oso Korva, aged 18 years, resident of Village Jarhadih Patra Boi, P.S. Shankargarh, District Surguja (M.P.) (Now Chhattisgarh) VGI‘SUS Respondent I State of Madhya Pradesh V e (now State of Chhattisgarh) Present Shri Abhay Tlwarl counsel for the appellant Shri Ravmdra Agrawal Panel Lawyer for the State/respondent Criminal Appeal under Section 374(2) of the Code of Criminal Procedure JUDGMENT (Delivered on Gm September,2011) Per Radhe Shyam Sharma, J.: This appeal is directed against the judgment dated 26-4-1995 passed by 2nd Additional Session Judge, Ambikapur in Session Trial No.168/1994. By the impugned judgment, appellant Shania Korva hasbeen convicted under Section 302 ofthe Indian Péenal Code and sentenced to undergo imprisonment for life. 2. Case of the prosecution, in brief, is as under: The appellant was residing with his wife near the house of ‘\ complainant Jole Ram (PW—1). On the fateful day, i.e., 5-3—1994, the complainant, after taking meals, was sleeping in his house. At about 10 P.M., the appellant came to him and told that he has assaulted 2 his wife in the house by a Tangi (Axe). The complainant went to the house of the appellant along with his wife and father of the appellant. He saw that Kalahi Bai, wife of the appellant was lying on the earth in the house. He saw injuries on cheek and right wrist of Kalahi Bai. She had died. Complainant Jole Ram (PW-1) lodged First Information Report (EXP—14). Merg lntimation (EXP-15) was also recorded. The investigating officer reached the place of occurrence, gavle notice (Ex.P-2A) to Panchas’and prepared inquest (Ex.P-3) on thehody of the deceased. Dead body of the deceased was sent for t post mortem to Primary Health Centre, Shankargarh. Post mortem examination was conducted by Dr. J. Kujur (PW-6),‘who gave his report EXP-9, in which, he found one spindle shaped incised wound of 1inchx1/2inchx1/4inch on right wrist and another spindle shaped incised wound of 3inchesx1inchxbone—deep on left cheek, oblique in direction, on the body of the deceased. The dOctor opined that cause of death was shock and respiratory failure due to loss of excessive blood and rupture of trachea and it was homicidal in natUre. ln further investigation, blood stained soil, plain soil, Tangi 0 (Axe) and clothes of the deceased and the appellaiot were seized. The seized articles were sent for chemical examination to Assistant Chemical Examiner, Forensic Science Laboratory, Raipur vide Ex.P— ' 13, from where a report (EXP-19) was received. According to the FSL report (Ex.P—19), articlNe‘B — blood stained soil, article C — Tangi (Axe), article D — Lungi, article E — Baniyan, articlesF & G — Saree, article H — Petticoat and article i -— Blouse were found stained with blood. 3 After completion of the investigation, a charge-sheet was med against the appeiiant in the Court of Judicial Magistrate First Class, l Ambikapur, who, in turn, committed the case to the Court of Session, l from where it was received on transfer by the 2”d Additional §ession Judge, Ambikapur, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Shri Abhay Tiwari, learned counsel for the appellant argued that there is no eye-witness to the incident. Finding of guilt recorded l u on extra-judicial confession is unreasonable. It was not proved beyond reasonable doubt. Even if the circumstances are taken on their face value, 'it cannot be said that it was the appellant who committed murder of the deceased. The prosecution has utterly failed to prove his case beyond reasonable doubt, therefore, the appellant is entitled to acquittal. 4. On the contrary, Shri Ravindra Agrawal, learned Panel Lawyer forithe State/respondent, supporting the impugned judgment, argued that the prosecution has roved its case beyond reasonable doubt. p 9 5. We have heard learned counsel for the parties at length and have perused the impugned judgment as also record of the session case. There is no eye-witness to the incident. 'The case of the prosecution is mainly based on extra-judicial confession and “circumstantial evidence th‘atthe deceased was found murdered in a house where she lived with the appellant. 4 6. So far as extra-judicial confession is concerned, in State of U.P. vs. M.K. Anthony, AIR 1985 SC 48, the Hon’ble Supreme Court held as follows: 6 “15. this Court observed that the Iaw does not require that evidence of an extra-judicial confession should in all cases be corroborated. It thus appears that extra-judiciai confession appears to have been treated as a weak piece of evidence but there is no rule of law nor rule of prudence that it cannot be acted upon unless $‘Qorroborated. lf th’e evidence about extra-judicial confession comes from the mouth of witness/witnesses 2 who appear to be unbiased, not even remotely inimical t5 the accused, and in respect of whom nothing is brought out‘which may tend to indicate that he may have a motive for attributing an untruthful statément 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. ln such a situation to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. lf the eyidence of extra-judicial confession is reliable, trustworthy and beyond reproach the same can be relied upon and a conviction can be founded thereon.” \~ 7., ln Kulvinder SingtL and another vs. State of Haryana, \ \\ (2011) 5 SCC 258, the Hon‘ble Supreme Court held as follows: “19. In State of Rajasthan v. Raja Ram, (2003) 8 SCC 180, this Court held as under : (SCC p. 192, para 19) E ,_ \ 5 “19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved Iike any other fact. The value of the evidence as to confession, Iike 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 gives the evidence. It is not open to any court to start with a presumption that extra-judiciai confession is a weak type of evidence. It would depend on the nature of the circumstances, the 1 V ‘time when the confession was made and the credibility of the witnesses who speak of such a confession. Such a confession can be relied upon and 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 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. After subjecting l the evidence of the witness to a rigorous test on the touchstone of credibility, the extra—judicial confession i‘ can be accepted and can be the basis of a conviction if it passes the test of credibility." 8. In Aloke Nath Dutta and others vs. State of West Bengal, (2007) 12 SCC 230, the ijgn’ble Supreme Court held as follows: \\ “68. In State of Rajasthan v. Raja Ram, (2003) 8 SCC 180, it was held: (SCC p. 192, para 19) i.\ 6 “19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved Iike 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 gives the evidence. lt is not open to any court to start with a presumption that extra-judicial confessidn is a weak type of evidence. lt would depend on the nature of the circumstances, the 1 u time when the confession was made and the credibility of the witnesses who speak of such a confession. ch a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth o witnesses who apear to be uiased, not even remtely inical to the acsed, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguou 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 a onviction if it passes the test of credibility.” lt was further observed: (SCC p. 192, para 20) “20.. lf the evidence relating to extra-judicial confession is found credible after being tested on the touchstone of credibility and acceptability, it can solely form the basis of conviction. The requirement of corroboration as rightly submitted by the learned \ Su f p nb o mi cu s i c \ 7 counsel for the respondent-accused, is a matter of prudence and not an invariable rule of Iaw.” 69. In Gagan Kanojia v. State of Punjab, (2006) 13 SCC 516, this Court opined: (SCC pp. 525-26, para 23)” “23. Extra-judicial confession, as is well known, can form the basis of a conviction. By way of abundant caution, however, the court may look for some corroboration. Extra-judicial confession cannot ipso facto be termed to be ‘tainted. An extra-judicial confession, if made voluntarily and proved can be relied l "’ upon by the courts.” 9.: J‘ole Ram‘(PW—1) deposed that father of‘the appellant informed him that his daughter-in-law had died and on being asked, he §went with him to see her. He saw injury on her left cheek. Father of the appellant had told him that his daughter-in-law was murdered by‘the appellant. He further deposed that on’being asked, the appellant told him that his wife was fleeing, therefore, he assaulted het on her left cheek with the Tangi (Axe). The injury on the cheek wds deep and left wrist of the deceased was also injured. Though froth the evidence of this witness it does not appear that the appellant had told him that he assaulted the deceased due to her fleeing yet from his evidence it is evident that he was told by the appellant that he assaulted the deceased and reason therefor was not disclosed to him. 6 "wx 10:. Karamsai (PW-3) deposed that Chowkidar Likha told him that a dead body was lying in the house of the appellant and he asked him to go to see the dead body. He had gone to see the dead body. l/ l \ 8 He saw that the appellant and his father were present there. On being asked by him, the appellant told him that his wife had refused to make the bed ready and was fleeing, therefore, he assaulted her on her cheek and hand with the Tangi (Axe). , 9 11. Oso (PW-4) deposed that he lived with his son (the appellant) and his daughter-in-law (the deceased). He had gone to see his sister in an other colony. When he returned home in the morning, he saw injuries on cheek and wrist of his daughter-in-law Kalahi. He gathered villagers. The appellant was present at the house. He askedJhe appellant about the injuries sustained by‘his daughter—in- law. The appellant told him that she herself fell down. 12. Jeetha Ram, Village Kotwar (PW-7) deposed that father of the appellant came to him in the morning and told him that the appellant had inflicted cut—injuries to his daughter-in—Iaw. On being asked by him, he had gone to see her. He saw injuries on cheek and wrist of the deceased. He also saw that the Tangi (Axe) was stuck in her waist. On being asked there, the appellant told him that he had caused cut-injuries to his wife with the Tangi (Axe) and thereafter he fled. j ln cross-examination, he deposed that the 3" appellant had told him that his wife (the deceased) was fleeing, therefore, he assaulted and caused cut-injuries to her. \s x; 13. Kuwari (PW-11) deposed thatthe appellantcame to her house l at about 10 P.M. and told that he has committedmurder of his wife with the Tangi (Axe). She had gone to the house of the appellant on the next day. She saw injuries on left cheek and left wrist of the @ w. 9 deceased. She further deposed that the injuries were caused with the Tangi (Axe) and the deceased was Iying dead. 14.: From the above evidence, it is cleariy estabiished that the appeiiant made extra-judiciai confession before Jole Ram (PW-1), Karamsai (PW-3), Oso (PW-4), Jeetha Ram (PW—7) and Kuwari (PW-1 1) and we are satisfied that the said extra—judiciai confession was voluntarily and was not result of inducement, threat or promise as contempiated by Section 24 of the Evidence Act. From the u . evidence of above witnesses, particuiariy of Oso (PW-4), who is father of the appeiiant, it is also clear that the deceased Iived with the appeiiant in the house, which was in their exclusive occupation and the deceased was last seen alive in the company of the appeiiant and the appeiiant and the deceased only two members were present in the house at the reievant time. 15. In Dnyaneshwar vs. State of Maharashtra, (2007) 10 SCC 445, the Hon’bie Supreme Court held as foilows: “10. It has not been disputed before us that the deceased was murdered in her matrimoniai home. It is not the case of the appeiiant that the offe§nce was committed by somebody else. It is also not his case that there was a possibiiity of an outsider to commit the said offence. One of the circumstances which is relevant is that when the coupie was Iast seen in a premises to‘ which=..an outsider may not have any \\\i access, it is for the husband to explain the ground for \i unnatural death of his wife. In Raj Kumar Prasad Tamarkar v. State of Bihar, (2007) 10 SCC 433; this Court held: (SCC p. 440, paras 22-23) 10 “22. The conspectus of the events which had been noticed by the learned Sessions Judge as also by the High Court categoricaliy goes to show that at the time when the occurrence took place, the deceased and the respondent onISI were in the bedroom and the terrace connecting the same. There was no other person. The cause of death of the deceased Usha Devi i.e. by a gunshot injury is not disputed. The fact that the terrace and the bedr‘oom are adjoining each other is not in dispute. 23. The autopsy report shows that ‘a blackening and charring’ existed so far as Injury (I) is concerned. The blackening and charring keeping in view the nature of the firearm, which is said to have been used clearly go to show that a shot was fired froma short distance. Biackening or charring is possible when a shot is fired from a distance of about 2 feet to 3 feet. It, therefore cannot be a case where the death might have been caused by somebody‘by firing a shot at the deceased from a distance of more than 6 feet. The place of injury is also important. The iacerated wound was found cver glabel|a (middle of forehead). lt goes a long way to show that the same must have been done by a pérson who wanted to kill the deceasedfrom a short distance. There was, thus, a remote possibility of causation of such type of injury by'any other person, who was not on the terrace. Once the prosecution has been able to show that at the relevant time, the room and terrace were in exclusive occupation of the couple, the burden of proof lay upon the respondent to show under what circumstances death was caused to his wife. The onus was on him. He failed to discharge the same." @ u, 11 g 16. In Swamy Shraddananda alias Murali Manohar Mishra vs. State of Karnataka, (2007) 12 SCC 288, the Hon’ble Supreme Coutt held as follows: “34. If it is proved that the deceased died in an unnatural circumstance in her bedroom, which was occupied only by her and her husband, Iaw requires the husband to offer an explanation in this behalf. We, however, do not intend to lay down a general law in this l ‘ u ‘behalf as much would depend upon the facts and circumstances of each case. Absence of any explanation by the husband would lead to an inference which wo'uld lead to a circumstance against the accused. x l l l l 35. We may, however, notice that recently in Raj Kumar Prasad Tamarkar v. State of Bihar, (2007) 10 SCC 433, this Court opined: (SCC pp, 440-41, paras 23-25) “23. Once the prosecution has been able to show that at the relevant time, the room and terrace were in exclusive occupation of the couple, the burden of proof lay upon the respondent to show under what circumstances 8 death was caused to his wife. The onus was on him. He failed to discharge the same. 24. This legal position would appear from a decision of this Court in Nika Ram v. Stateof H.P., (1972) 2 SCC 80, wherein it was held: (SCC p. .87, para 16) ‘16. It is in the evidence of Girju PW that on the accused and Churi deceased resided in the house of the accused. To similar effect are the statements of Mani Ram (PW 8), who is the 12 uncle of the accused, and Bhagat Ram, school teacher (PW 16). According to Bhagat Ram, he saw the ‘accused and the deceased together at their house on the day of occurrence. Mani Ram (PW 8) saw the accused at his house at 3 p.m., while Poshu Ram (PW 7) saw the accused and the deceased at their house on the evening of the day of occurrence. The accused also does not‘deny that he was with the deceased at his house on the day of i” ‘ occurrence. The house of the accused, according to plan PM, consists of one ‘residential room, one other small room and a verandah. The correctness of that plan is proved by A.R. Verma, overseer_,_,(PW 5). The fact that the accused alone was with Churi deceased in the house when she was murdered there with the khokhri and the fact that the relations of the accused with the deceased, as g would be shown hereafter, were strained would, in the absence of any cogent explanation by him, point to his guilt.’ 25. In Trimukh Maroti Kirkan v.e State of Maharashtra, (2006) 10 SCC 681, the law is stated in the following terms: (SCC p. 694, para 22) ‘22. Where an accused is alleged to have committed the murder of his wife rand thefprosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence’takes place in the dwelling home where the husband also 13 normally resided, it has. been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an expianation which is found to be false, it is a strong circumstance which indicates that he is responsibie for commission of the crime.’ " i i‘v i i i 17.§ In view of the extra-judiciai confession made by the appellant before the above prosecution witnesses, homicidal death of the deceased and that the coupie was Iast seen together in a premises to which an outsider may not have any access, possibiiity of any outsider committing the offence is overruled. It is for the husband/appellant to explain the ground for unnaturai death of his wif‘e. Absence of explanation by the appellant would lead to an inference which would lead to a circumstance against the appellant. It is not in dispute that the house, where the deceased was lying dead, was in exclusive possession of the couple. The burden of proof lay upon the appellant to show under what circumstances the death of his wife took place. The appellant gave explanation that the deceased sustained injuries as she had fallen downs ln view of the medical evidence and the extra-judicial confessionfithe explanation offered by the appellant is unacceptable. ; 18. After going through the entire evidence available on record, we are of the view that there is enough evidence that it is none else C; but the appellant who caused murder of the deceased. In our ,/ \\ considered opinion, the prosecution has established its case on the \basis of extra-judicial confession and the above circumstantial \\ t/§ 14 evidence. There cannot be any other possible or plausibie View favouring the appeHant. 19. For the foregoing reasons, we find no substance in the appeal, which is Iiable to be a d is accordingiy dismissed. V\ es . ~w\\\ Gopal Sdl- Sd/ R.s. Sharma unrl Kama}, Judge Sinha Judge /