HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hori’ble Shri Rajeev Gupta, C.J. 8r. Hon’ble Shri Sunil Kumar Sinha, J. Criminal Apgeal No. 294[ 2002 v r Dubraj Singh ) Vs. State of Chhattisgarh JUDGMENT For consideration Sdl Sunil Kumar Sinha /,J,LEE/’ ”"75/1/2’009’i Post for /:13&09 j" Sdl- Sunil Kumar Sinha Judge /o/7/2609 @ HIGH COURT OF CHHATTISGARH BILASPUR CORAM: Hon’blé Shri Rajeev Gupta, C.J. 85 Hon’ble Shri Sunil Kumar Sinha J. Criminal Agpeal No.294 of 2002 {k (APPEAL UNDER SECTION 374 121 OF THE CODE OF CRIMINAL PROCEDURE) Appearanc : Mr. Vivek Kumar Pandey, Counsel for the appellant. Mr. Sudhir Bajpai, Deputy Govt.'Advocate, for the State. JUDGMENT (13 .o7.2oo9) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) Appellant Dubraj Singh stands convicted u/s 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.100/—, in default of payment of fine, to further undergo Rigorous Imprisonment for one month, by the II Addl. Sessions Judge, Ambikapur (Sarguja) in Sessions Trial No.304/2001 on 15th [of February, 2002. APEELLANT Dubraj Singh, son of Caste Gond, Aged about 32 years, resident of village Ramnagar, P.S. Lakhaflpur, Distt. Sarguja,(C.G). V? Versus RESPONDENT State of Chhattisgairh Through P.S. ‘ “ Lakhanpur, Distt. Sarguja (C.G.) (2) 2 Cr.A.N0.294/2002 The facts, brief1y stated, are as under: Deceased Ras Kunwar was the wife of the appellant. On 24.07.2001 at about 6.00 — 6.30 p.m., they were working in their field. The allegations are that on account of some petty quarrel, the appellant gave repeated spade blows on the skull of the deceased, who sustained multiple injuries and succumbed to those injuries on the spot itself. The incident was witnessed by Shyam Bilas Gond (P.W.8). After the incident: the appellant went to the house of §umran Singh (P.W.5) and Biran Gond (P.W.10) and made extra judicial confession before them. They went to the place of occurrence along with other Villagers and saw the dead body of the deceased, which was lying in pool of blood. Sumran (P.W.5) lodged the ‘First Information Report (EX.P.1 1) in police outpost Udaipur, on which, Merg intimation (Ex.P.3) and regular First Information Report (EX.P.2) were recorded in Police Station Lakhanpur. The investigating officer reached to the scene of occurrence, prepared inquest (EX.P.17) on the body of deceased and the dead body was sent for its postmortem to Community Health Center, Udaipur, where th‘e postmortem examination was conducted by Dr. D.K. Markam (P.W.3), who prepared his report (Ex.P.lO). The autopsy surgeon noticed following injuries on the body of the deceased: Lacerated wound 31/2” x 11/2” X bone deep on the occipital bone. There was fracture of occipital bone and the brain matter has come out; (ii) Lacerated wound just above the left orbit 2” X 1/2” x bone deep; (iii) Lacerated wound 3" x 1/2” X bone deep medial to the left external ear. (iV) Lacerated wound 2” x 11/2” x bone deep on left side the ear. (V) Lacerated wound 3" x 1/2” x bone deep on Maxilla with fracture of maxilla bone. :V‘ (i) of 3 @ Cr.A.N0’294/2002 The doctor opined that the above injuries were ante- e and they were caused by hard and blunt mortem in natur object and were sufficient to cause death. He opined that the death was syncope, hemorrhagic shock and cause of hemorrha in nature. ge on account of above injuries and it was homicidal In further investigation, site plan was prepared under EX.P.13. Plain soil, blood stained soil and blood stained spade seized from the place of occurrence under EX.P.17. A Gamcha was seized from the appellant under EXP 18. Another were 1 “site plan was prepared by the Patwari under EX.P.20. The seized articles were sent for chemical examination to the Q i Forensic Science Laboratory, Sagar, under EX. P-7 from where a" report (Ex.P.8) was received. According to the F.S.L. Report, the blood s°tains were found on stained soil, Spade, Gamcha, Saree, Blouse and hair of the deceased and they were identified to be the human blood and the stains over Gamcha and Blouse were of ‘B’ group whereas thegroups of other stains could not be identified. After completion of usual investigation, the charge sheet was filed in the Court of Chief Judicial Magistrate, Ambikapur, who in turn committed the matter to the Sessions Court, Ambikapur, from where it was received on transfer by the II Addl. Sessions Judge, Ambikapur, who conducted the trial and convicted and sentenced the appellant, as aforementioned. (3) The conviction of the appellant is based on extra judicial confession made before Surnaran (P.W.5) and Biran (P.W.10) as the sole eye witness Shyam Bilas (P.W.8) turned hostile. V (4) Mr. Vivek Pandey, learned counsel appearing on behalf of the appellant argued that the sole eye—witness Shyam Bilas V\\(P.W.8) has turned hostile and he has not at all supported the . \ 7 \\ )k‘v’Q’w t I‘ ‘ (‘r A NO 4 294/2002 @ case of prosecution and the evidence relating to extra judicial confession is shaky and unreliable. (5) On the other hand, Mr. Sudhir Bajpai, learned Deputy Govt. Advocate appearing on behalf of the State opposed these arguments and supported the judgment and order passed by the Sessions Court. l ' (6) We have heard learned counsel for the parties at length KK 1 v and ha‘ve also perused the records of the Sessions Case. (7) ‘ Sumran Sipgh (P.W.5) deposed that deceased Ras Kunwar was’the daughter of his aunt and appellant Dubraj is his brother—in-law. On the fateful day, the appellant came to his place and said that he has killed the deceased. The appellant also said that he has killed her by a spade. Hearing this, he went to see the dead body of the deceased. The dead body of the deceased was lying at a distance of about 200 metres from her house. He saw the injury on her skull. He called Biran Sigh, Ram Prasad, Ram Charan, Hridayram who also saw the deadbody. The spade was lying near the deadbody of deceased Ras Kunwar. He certified to lodge the merg intimation and the report in the concerned police outpost. Biran Gond (P.W.10) deposed that at about 5-6 p.m., appellant Dubraj met him near the house of Sumran (P.W.5). He asked him to go and see deceased Ras Kunwar. The appellant stated that he had given *3 two spade blows to the deceased, due to which, she has received ‘7‘ v p \injuries on her head. The appellant also stated that on account Cr.A.No.294/2002 @ 5 of such blows, the brain matter of the deceased has come out. P.W.1O Biran Gond deposed in categorical words that the appellant made extra judicial confession before him that he had ' ' assaulted the deceased with a spade. l (8) Though these witnesses have been put to a lengthy cross exarjninations by the defence, but the defence has not been able to elicit any such circumstance, on which, either their i1» testimonies may be discarded or it may be said that they are falsely implicating the appellant in crime 1n question. It has been lefid down in many cases that 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 may 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. (9) In the present case, the two witnesses of extra judicial confession namely Sumran (P.W.5) and Biran (P.W.10) are the distant relatives of the appellant and the deceased. Nothing has been brought on record to show that either they were biased or \even remotely inimical to the appellant. They had no motive for 6 (Tr‘A_No.294/2002 attributing the untruthful statement to the appellant. The words spoken to these witnesses were clear and unambiguous and the statements made to them unmistakably convey that the appellant was the author of the crime. Nothing is omitted by these witnesses. The evidence of Sumran (P.W.5) is supported by ithe Merg intimation (EX.P.3) as also the F.I.R(EX.P.11), in which he has mentioned the factum of extra judicial confession made to him by the appellant. (10) For ‘all -the reasons, in appreciation, we rely on the evidence of these witnesses and hold th’at the appellant made extra judicial confession before them and the conviction based on such confession can well be sustained. ¢ *«f (11) Shri Vivek Pandey next contended that the act of the appellant was not premeditated and it was committed all of a sudden in the heat .of passion, therefore, his act would fall under Exception 4 of Section 300 and an offence u/s 302 IPC would not be made out. (12) We have carefully considered the argument advanced by Mr. Pandey. Exception 4 provides that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel ‘ r or unusual manner. (13) In the present case, though it comes that some quarrel k;w \took place and without preparation or premeditation, the 7 @ Cr.A.N0.294/2002 over the deéeased, but the mannerin which appellant attacked he gave repeated blows by spade on the skull of the deceased, including fracture of parietal who received the above injuries and maxilla bone and the brain matter has come out causing her’ instantaneous death, would show that the appellant had\ takdn undue advantage and had acted in a cruel and unusual manner. Therefore, his case would not fall under Exception 4 andl the arguments advanced in this regard cannot be accepted. i (14) For the foregoing reasons, we do not find any substance in the appeal. The appeal is liable to be dismissed and is accordingly dismissed. , H‘e‘. r Sdl- _ Sunil Kumar Sinha Judge sai— Chief JuStice "‘ Rao