MM HIGH COURT OF CHHAT’I‘ISGARH AT 31LASPUR Ctiminal Aggal No. 251 of 200 CORA ’BL 81l . HON’BLE SHR .L.JHA hupam so Ra am, c O year cu lage oc tao Lma T h Vll S1kb1ra Phe sun lm hana Jaspur, D1stnct Jashpur (CG) Versus RESPONDENT tlsgh uh Poe ‘ » State of Chhatar Throg hc ae Loda a Dtct Jhu (CG) Present:— Ms. Chandra Kuman’ avran, counsl fo he en Sh Asms Shukl Government Adocate for h tat (2..2010) Per T.P.Sharma, J.:— Challenge tl apeal to e dgmen fconn order of sentence dated 29 9 2004 passed 1n Sessmns ’l‘nal NO 72/ 2004 by the Addmonal Sessmns Judge Jashpur Dismct 5 Jashpur (CG), whereby and Whereunder the learned Addmonal Sessxons Judge aiier holdmg the appellant gmlty for comxmssmn of murder of Bnsa1 conv1cted the appellant under Sectton 302 of the IPC and sentenced to undergo nnpnsonment for hfe and to pay a W due of Rs 1000/ 1n default of payment of nne to flnther undergo \ V ‘ R.I. for 6 months. f\ 2. The conv1ct10n ls challenged on the ground that w1thout my . ‘ clmchmg and cred1ble ev1dence Court below has conVJcted and t 1. LA M HONE m TP.SHARMA k I RNWAR JJ ‘ APPELLANT Tlr / njan R agd 3 s Ocpatlon Agnculturc R/o Sttn m Thna Jashpur, lsn aspr Ng e r t appllat n h a v te Se ORAL JUDGMENT 68 1n ns p ls th Jut o v1ct10 d sentenced the appellant as aforemenu'oned and thereby committed ' illegality. 3. Brief case of the prosecution is that the appellant, nephewof e t the deceased — Birsai was having enmity with Birsai on account of land, owned and held by Bixsai, having no issue. 'On‘ 11.6.2004, dead body of Birsai with sevele injuries ’was found in the held. , Sahdev (PW—1) lodged FIR vide Ex. P/ 1. Merg intimation was recorded vide Ex. P/ 2. After summoning witnesses vide Ex. 13/3, inquest over the dead body of Birsai was made vide Ex.P/4. ’ Blood ; stained and plain soil was recovered vide Ex P/5 Dead body was sent for autopsy to Pnmaly Health Center Lodam v1de Ex P] 16 Dr RaJendra Smgh Ra] (PW-6) conducted autopsy Vide Ex P 12 and found followmg injunes over‘ the dead body of Birsai 1, Incised wound of 12 x 1 cm x bone deep over face below both eyes Incised wound of 17 x 6 cm x bone deep over right I mandible bone and maxillary bone InCIsed wound of 6 x 3 cm x bone deep over left Jaw Inc1sed wound over the neck of 22 x 7 cm x eewmal vertebra deep, Trachea, thymld cartilage, hyoid bone, cervical vertebra were found cut. 5. Incised wound of 18 x 4.5 cm x bone deep over left} humorous bone. a. Humorous bone was found fractuxed. Injuries found over the body were snfdcient for causing ’ death. Cause of death was as a result of cardio respiratory arrest and death was homicidal in nature. The accused/appellant was.“ :7 taken into custody. He made disclosure statement of ' Baluwave (betel axe) vide Ex. P/6. The same was recovered at the instance of the accused/appellantn‘om hill (China Pahad) vide Ex. 9/7». Blood ‘ ' stained clothes of the accused were seized vide Ex. P/8. Spot map was prepared vidc Ex P19 Sealed clothes of the deceased were J selzed Vlde Ex P/ 10 Patwan plepared spot map V1de Ex P/ 11 - Selzed Baluwa was sent to Doctor v1de Ex P] 13 The same was r exammcd by Dr R S Ra] v1de Ex P/ 14 Statements of the w1tnesses were recorded under Section 161 of the Code‘of Cnmmal - Procedure, 1973 (for shmt ‘the Code’). 4. After compleu‘on of investigation, charge sheet was §Jed before the Court of Jud1c1al Mag1strate Fust Class, Jashpur, who ; ‘ m tum commltted the case to the Court of Sess1ons Judge Jashpur h'om where the learned Addmonal Sess1ons Judge received the case on tansfer for trial. 5. In order to prove the guilt of the appellant/accused, prosecution examined as many as 9 Witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code, where he denied the circumstances appearing against him, innocence and false implication in crime in question was claimed. 6. After ah‘ording opportunity of hearing to the parties, learned Additional Sessions Judge has convicted and sentenced the accused] appellant as aforementioned. 7. We have heard Ms Chandra Kuman Navrang, learned l counsel for the appellant and Shn Ashrsh Shukla learned : M Government Advocate for the State/respondent and perused the judgment impugned and record of the Court below. 8. Learned counsel appearing for the appellant vehemently r argued that in the present case, evidence adduced-on behalf ofthe w prosecution is sumcient for casting doubt that the =-accused/ t appellant has committed an oEence, but it is not sumcie-nt for iinding the conclusion that the appellant was the only person, who , 1. has committed the oh‘ence. Suspicion, however, grave cannot *ake place of a legal proof. She argued that extra jndicial confession is a weak type of evidence and without mrther corroboration; it is not safe to rely. Except extra judicial confession, no other evidence has been adduced by the prosecution against the appeHant She further argued that extra judicial’confession made by the accused] appellant is not swcient for drawing any inference andcf prosecution has not proved allchain of circumstances to exclude the possibility that none other than the accused/appellant had committed the on'ence. 9. 0n the other hand, learned State counsels vehemently opposed the arguments and submitted that the conviction is substantially based on the evidence of Dulam Khaikho (PW‘3), a Kotwar before whom the extra judicial confession has been Inade by the appellant and the same is su$cient for draWingan inference that the appellant has committed murder of Birsai. ; i i W 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behw of ji- the prosecution. r l 1. In the present case, homicidal death of the deceased has not: been substantially'disputed by thevappellant, even otherwise‘rit is} t i established by the evidence of Dr. Rajendm‘singh Raj (W76) aim-v ; autopsy report EX.P/ 12, which revealed that fatal injuries were I found over the face and neck, which was sumcient for causing death of the deceased and death was homicidal in nature. ._ 12. As regards complicity of the appellantfaccused in crime in s question is concerned, conviction is substantially based onmthe evidence of extra judicial confession made by the accused beforew WW mwnarmmaxm‘mw m * K 1: w 1 A In A. L M PW—3- Dulaxa Khalkho and disclosum of weapon at the instance of - r the appellant. Dulara Khalkho (PW-3) has deposed that on the date of incident while he was coming mm his filed after completion ofv w his work; the accused] appellant met him near Bahaxi river and’oni‘w asking that Where the appellant was going, he replied that‘he was » going to Jashpur. He asked why he is going to Jashpmj, then the ‘ ‘ appellant made extla judicial confession befom him that he had cut elder bmther of his father namely- Birsai and thereafter he hed away nom the spot. 13. Defence has moss—examined Dulam Khalkho (PW—3) in. detailed, but has not been able to elicit anything in his cross- examination to discredit his testimony on the gonnd of extra judicial confession made by the appellant to him. He has stated in t para 6 of his cmss examination that he had told Police that thew appellant had met him in the held and the appellant had not, met him in his house. 14. Statement of Dulara Khalkho (PW-3), Kotwar in pam 1‘of‘his examination in chief revealed that the appellant had told him that - he has cut elder brother of his father. d am sag m w Ell? ail W- : W i1 He thought that this Witness Will caught hold of him, l ‘ ' therefore, he fled away. In cross examination he has specihcally 5 stated that the accused met him injhe held, but he has not 1:: narrated relating to land dispute. The appellant has not made extra judicial confession before Dulam Khalkho (PW—3) as he was a Kotwar, but he has narrated the fact to Dulata Khalkhoas a person, which is natuxal. Although, extra judicial confession: is a weak type of evidence, but once it is proved, the sam€is su$cient for conviction of the appellant. 15. While dealing with the evidentiary value of extra-judicial. a confession made under Section 24 of the Evidence Act, the-Apex - t. mm Wat» ewe; em$ awn» s t Court in the matter of Baldev Singh v. State of Punjabl ha held 4‘ that extra-judicial confession is generally of weak type of evidense. na: x: ‘ No conviction ordinan'ly can be based solely thereupon unkssv/gl same is corroborated in material paxticulars. 16. While dealing with the same question, the Apex Court maths matter of Mohd. Azad @ Samin v. State ofWest Bengal?- has held- that if extra-judicial confession made voluntarily and u'uth in aam state of mind then it can be relied upon and confession Will nave to - J prove like in any other evidence. Pam 22 of the said judgment *» l reads as under: “22. An extra—judicial confession, if voluntary and true and made in a nt state of mind, can be relied upon by the court. The confession will have to‘be, proved like any other fact. The value of the evidence V as to confession 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 r Ieliability of the Witness who gives the evidence. It is not open to any court to start with a plesnmph'on 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 canibe relied). upon the conviction can be founded thereon if th evidence about the confession Comes hum the mout ‘ of witnesses who appear to be unbiased, .not’even, g remotely inimical to the accused, and in’i‘espect of -*‘ whom nothing is brou’ght 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 axe clear, unambiguous. andl V; unmistakably convey that the accused is pth‘eif perpetrator of the crime and nothing is omitted by the witness which may militate against it.‘ After ‘ subjecting the evidence of the witnessto a. rigerou$ x, test on the touchstone of credibility, theextia-judicial “ 12009 AIR SCW 3730 22009 AIR SCW 752 - e h /X ? @ confession can be accepted and can be the basis- of r ’ conviction if it passes the test of credibility” 17. In the present case, the accused] appellant has also made disclosme statement of the weapon of o§ence ie. Baluwa (betel axe). Adhanu Ram (PW—2), who is a witness of Panchanama has \ deposed that the appellant has not made any statement to The I. Police, but he has specincally deposed in pala 3 that the appellant , took out the hidden Baluwa {betel axe) mm the China Pahad and gave it to the Police. He has admitted in his cross examination that the weapon was not took out by the Police mm ChJna Pahad He has also admitted that this type ofweapon is generally kept by the Villagers 1n their house Although, the stamed blood found over the Baluwa has not been exammed by the Chemical Expert . However, ev1dence ofAdhanu Ram (PW 2) revealed that the Baluwa- (betel axe) was h1dden 1n the hm, which 1s not ordmanly reachable I place, then only the appellant took out the same horn the. hill This is a corroboxative piece of evidence. Evidence of Sahdev (PW— 2‘. 1), brother 1n law of the appellant Who has lodged the FIR also r categoncally deposed the ennnty and the fact that the present accused] appellant was mterested to take the land of the deceased, who was not having any issue. The extta judicial confession made by the appellant to Dulara Khalkho (PW—3) is smient $r the conviction of the appellant under Section 302 of the ~IPC. The same - :, is well corroborated by recovery of the weapon of odence at the instance of the appellant and enmity of the appellant with the ' . deceased. 18. Afte appreciating the evidence available on r e . , leatned Additional Sessions Jde onvicted n ntce the appellant as afotementioned. 19 On close scrutiny of the evidence we do not ii . , nd anys illegalit or f in the judmet of convictio nd cide r econd, th g‘ ug has c ad seend y inirmity gn n a r of . “\‘Kjw f» 20. Consequently, the appeal being devoid of melits is liable to be dismissed and it is hemby dismissed. ‘RE ’1‘ Sd/- ’ ‘ Sd/‘ ‘L T.P ‘ R.L. T.P Shanna j Judge