HSGH COURT OF CHHATTSSGARH AT BIL^WJR Crimlria! AppeaS hSo. 944 of200S Djvtsson Bench: Coram: HON'BLE MR.T. P. SHARMA & HON'BLE MR. R. L. JHANWAR, JJ. Vs. RESPONDENT Bisruram Sahu S/o Kartikram Sahu, aged about 27 years, Occupation Labour, R/o Viiiage Chiwri, Poiice Station Kurud District Dhamtari C.G.) State of Chhattlsgarh through Statjon Incharge Poiice Station Kurud, District DhamtariC.G. (CRiMiNAL APPEAL UNDER SECTiON 374 (2) OF THE CODE OF CRIMiNAL PROCEDURE, 1973) Present:- Mr. Suresh Tandon, counsel forthe appeifant. IVir.Neeraj Mehta, Pane! Lawyer forthe State. ORAL JUDGMENT (Passed on 28th October, 2010) 1. ChaiSenge in this appeai is to the judgment of conviction & order of sentence dated 25.11.2005 passed by the Additional Sessions Judge, Dhamtari, in Sessions Triai No.161/2004 whereby and whereunder tearned Addltional Sessions Judge after hoiding the appeliant guiity for commissjon of cujpabis homicide of Kartikram (since deceased) amounting to murder convicted him undsr Sectlon 302 of the i.P.C. and sentenced to undergo jmprisonment for iife and to pay a fins of Rs.100/-. 2. Conviction is impugned on the ground that without any iota of cijhching and credibie evidence, the trial Court has convicted and sentenced the appejSant as aforementioned and thereby committed {{Segality. 3. Case of the prosecution, in brief, is that on the fatefui day of 1 5.3.2004 at about 2 p.m. the appeSiant was present with his father, he assauited hls father Kartlkram by biunt object and caused injury over his head, @ 4. 5. they took the injured Kartikram to Medlcal CoiSege Hospjtai,Ralpur for treatment on 16.3.2004 and iodged dehatl nalishj on 18.3.2004 vlde Ex.P/9. During the course of treatment, KartiRram died. Death was intsmated to Pollce Station Moudhapara and Poifoe Station Moudhapara recorded merg vlde Ex.P/11. During the course of incldent, the sppeilant aiso assaulted Pritam who has examined by Dr.V.K-Pandey (PW-2) and founcS one abrasjon over his Jeft wrist of I" x .5". After summoning the witnesses vide Ex.P/7,inquest over dead body of Kartlkram was prepared vide Ex.P/8. On the basis of dehati nalishi Ex.P/9, F.S.R. was registered vlde Ex.P/14. Dead body of deceased Kartikram was sent to Dr.B.R.Ambedkar Hospstal, Raipur vlde Ex.P/12. Dr.Vikas Kumar Dhruv (PW-3) conductsd autopsy vide Ex.P/2 and found foJSowlng Injurles:- i) Stltehed wound over right parietal area. iJ) Stitehedwound over iefttemporai region. iii) Ecchymosed on right frontai, parietai area, ieft temporal and parietal area. iv) Linear fracturs on ieft temporai bone of 13 cm. length. Heamotoma found in duraj. Cause of death was as a resuit of head injury. Spot map wss prepared by Investigating offlcer vide Ex.R/4. Clothes were seized from the spot vide Ex.P/5. Bloodstained solt, plaln soil and one babui stick were selzed from the spot vide Ex.P/6. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after compietlon of Investigation, charge sheet was fiSed before the Court of Chlef Judjciai Magistrate, Dhamtari, who in turn commltted the case to the Courtof Sessions, Raipur, from where leamed Additional Sessions Judge, Dhamtari received the case on transfer for trlai. in order to prove ihe guilt of the accused/appeilant, the prosecution has examined as many as 12 witnesses. Statement of the accused/appeljant was recorded under Sectson 313 of the Cr.P.C. where he denied the drcumstances appearing agalnst hlm and dslmed innocence and faise Impjication In the crime Sn questlon. 6. After providing opportunity of hearing to the parties, learned AdditSonai Sesssons Judge has convjcted and sentsnced the appeliant as aforementioned. 7. We have heard Mr.Suresh Tandon, counsel for the appeilant and Mr.Neeraj Mehta, Panet Lawyer for the State, perussd the jiidgment Impugnedand record ofthe triai Court. 8. Learned counseS for the appeiiant vehementty argued that as per evidence of the prosecution witnesses indudlng the evsdence of investigating officer, the appellant was insane person and he has committed crime during the course of insanity, therefore, he is liable for punlshment in terms of Sectlon 84 ofthe i.P.C. 9. On the othsr hand, iearned State counssl supported the judgment Impugned and argued that in order to attract the exceptionjn terms of Section 84 of the i.P.C., the appeliant was under obljgatlon to prove the exceptlon in terms of Section 105 of the indian Evldence Act, but he has not discharged his burden, even othepvvlse, he was under obSigation to prove the fact that at the tlme of commlssion of the offence he was a person of unsound mind, but bs has not adduced any evldence to prove this fact, therefore, he is not entitled, for any exception in terms of Section 84 ofthe i.P.C. 10. In order to appreciate the arguments advancsd on behaif of the partles, we have examined the evidence avaiiabte on record. 11. in the present case, homlcldai death as a resuSt of fatal injury found over the head of deceased Kartikram has not been substantlaiiy disputed on behaif of the appeliant, on the other hand, aiso establlshed by the evidence of Dr.VJkas Kumar Dhruv (PW-3) and autopsy report vlde Ex.P/2 which reveals that death v/as homlcldai In nature. 12. As regards the compildty of the accused/appeHant in ths crime in questson, convlctlon Is substantially based on the evidence of extra judiciai confession made by the appeilant to Girwar Sahu (PW-9). As per evidence of Girwar Sahu (PW-9), he was informed by Nekram @ Neku about the incident. then he went to the house of Injured 4 Kartikram, Kartikram was treated by the doctor, the appeiiant was also present there whom he toSd that he has assaulted; then the appeliant told that he has asssuited Kartikram, the appeilant has made extra judiciai confession to him that he has assaulted his father by Chimta. in para 9 of hls cross-examination, he has denied the altegation that the appeiiant v^as insane. jn pars 11, he has ateo denled the suggestton t'nat wsth a view to deprive the appeilant frQm taking partition over the property he is falseiy Smp!lcating hlm. The evldence of this witness cieariy reveais that the appeiSant was present in hls house where body of his father was lying and the appeljant has a!so made extra judJdal confesslon to this wjtness that he has assaulted hjsfather. 13. Extra judiciai confession is a weak type of evidence, but once it is proved then same is sufficient for convictlon. Whiie deallng with the evidentsary value of extra-judlciaj confesslon made under Sect'ion 24 of the Evidencs Act, the Supreme Court in the matter of Baidev Singh v.State of Punjab1 has heid that extra-judleiai confesston is generaiiy of weak type of evidence. No convlction ordinarlly can be based soleSy thereupon unless same is corroborated In materiaS particuiars. 14. WhlSe deaijng with the same questlon; the Supreme Court in the matter of t4ohd. @ v. oTWest.Beiigaf has heid that If extra-judiclal confesslon made vo!untariiy and truth in a fit state of mind then it can b©reiied upon and confesslon wlES nave to prove jlke tn sny other evldence. Para 22 of the said jydgment reads as under- "22. An extra-judiciai confsssion, If voiuntary and true and made in a fit state of mind, can be rdied upon by the court. The confession wl}i have to be proved i!ke any other faot. The va!ue of the svidence as to confession, tlke any other evidence, depends upon the veracity of the witness to whom it has been made. The vaiue of the evidence as to the confession depends on the reijabiSity of the wltness who gives the evidence. St js not open to any court to start with a presumptjon that extra-judiciai confession is a weaktype of evjdence. !t l2009 AIR SCW 3730 22009 AIR SCW 752 .w- Vi/ouid dspend on the nature of the circumstances, the time when theconfession was made and the credibilsty of the witnesses who speak to such a confession. Such a confession can be relled upon the convlction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimicaj to the accused, and En respect of whom nothjng fs brought out which may tend to indicate that he may have a motive of attributingan untruthfu! statemeht to the accused, the words spoken to by the wttness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may miiitate against jt. After subjecting the evidence of the wltness to a rigorous test on the touchstone of credlbi!s'ty, the extra- judiciaj confession can be accepted and can be the basls of convsctlon jf it passes the test of Gredibllity" 15. The evidence of Girwar Sahu (PW-9) atone is sufficisnt for drawing inference that the sppellant has caused injury to hIs father Kartlkram. 16. As regards the questton of motive, in case of direct evldence motive Sosses "rts importance, even otherwlse, motive oniy aids In criminailty and can be inferred on the basis of nature of injury, klnd of weapon used, part ofthe body effected and other similar circumstances. 17. tn fhe present case, as per medical evidence, crack Sinear fracture of temporai bone was fatai. Sncjdent took piace on 15.3.2004, injured was taken into hospstal on 16.3.2004 and he ctsed on 20.3.2004, after flve days of the (ncident. injury found over the body of the deceased does not find dangerous to jjfe. After causing such jnjury, the appeiiant has not fied from the spot, he was present in the same house and he has admltted that he has caused Injury, he was havSng sufficient opportunity to finish his father but he has not caused more injuries to the deceased. Thte shows that at the time of causlng injury, the appeiiant was havlng RnowSedge that his father may dle, but he has not caused injury with Intent to cause d©athof his father. Even otherwise, as per evidence of investigating officer T.R.MahiSange (PW-12), h6 has not inquired from the accused because accussd was insane (I^RT), but other witnesses have not corroborated this fact. 18. The present appeSlani has not examined any doctor or any other wltness jn support of his unsoundness of mind as required to prove in terms of Section 105 ofthe indian Evidence Act, but the evidence of jnvestigatSng officer can be taken into consideratlon that although the appejiant was not insane, but he was not in a fit state of mlnd whteh find support from hls cpnduct that even after causing injury he was present In his house where body of his father was iying. in these clrcumstanceSi we are of the considered view that the act of the appeliant does not travei beyond the scope of Section 304 Part ij of the I.P.C. 19. Whiie convlcting the appeilant, ths triai Court has not considered the aforesald fact, nature of injury and statement of jnvestigatlng offscer, thereby committed illegalsty. 20. Consequentjy, the sppeai is part!y aStowed. Convictlon of the appejiant under Section 302 of the i.P.C. is altered to Sectlon 304 Part I! ofthe I.P.C. and sentenced to undergo R.i. forseven years. Sd/- T«P.Sharma Judge Sd/- R.L. Jhanwar Judge