@ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: ' HON'BLE MR. DHIRENDRA MISHRA & HON‘BLE MR. R.N. CHANDRAKARt JJ" CRIMINAL APPEAL NO.1019/2002 gCriminal App’eai U/s 374 (2) of Cr.P.C.) APPELLANT ‘ Bhukhau alias Bhukhu Majhi, Son of Rama (Injailcusfody) walias Ranga, aged abouf- 45 year's, residem of villagaPur‘i, P,S.— Ghar’ghoda, Tah.- Gharghoda, DisTr‘icT—Raigarh (Chhaffisgarh) Sfa’re of‘.Chhuf+isgarh, Through P.3- Ghar‘ghodu, Tah.- Ghar‘ghoda' Disfr'icf- Raigarh (ChhaTfisgar’h) Vs RES?PONDENT s ‘ Present ‘ ' Mr. S. VadavfDy. GOVT. Advocate for fhe respondenf—Sfafe. ORAL JUDGMENT (23rd September, 2009) ‘1. The appellan‘r has preferred This criminal appeal under Sec’rion 374 (2) of fhe Cr.P.C. againsf The judgmem‘ of convicflon and order of senTence da’red 29.08.2002 passed in S,T. No.126/2001 whereby learneds4lh Addh‘ional Sessions Judge, (FTC), Raigarh has convicTed ’rhe appellanf under Secfion 302 of The IPC for causing homicidal deafh of hislown wife namely Sukhwaro Bai and sentenced him To undergo life imprisonmen’r and fine of Rs.100/—, in defaulf of paymem‘ of fine ’ro undergo addifionol RI. of 3 monfhs. . Case of fhe prosecution] in brief, is fha’r deceased Sukhwaro Bai was wife of The oppellanT. BoTh of Them resided in Village Puri wiTh Their son RamawTar. The appellanf used To quarrel wiTh his wife afTer consuming liquor. On 14.4.2001 aT abouT 8.00 am. complainanT MehTTar Manjhi .‘(IPW-l), broTher of The appellanT, had gone To Aamapahad along wiTh SanaTram (PW—3), Mahnurom (PW-6) & Sukulu for collecTing Mahua flowers. His broTher Bhukau came To The place where They were plucking flowers aT 2.00 p.m. in The afTernoon and afTer drinking waTer reTurned rrrrf\£k .\ b Towards hi 's house . Vlhen l T he comp lomanT ‘ was reTurnIng ‘ WI 'T h h‘s i Mr. V.P. Gup'ra, Advoca’re for The appellant hirendra Mishral J: \ D 2 Q3 companions at 4‘00 p.m., They mef The appellam‘ on way. The appeHqn’r informed Them ThaT he has murdered his wife Sukhwaro Bai. RamawTor‘ also informed Them ThaT his moTher has been murdered. InformaTibn abouT The murder was given To The police on Telephone. On receiving The informaTion on Teiephone, The police recorded The some in The daily diary of EXP-12 and proceeded for The Scene of occurrence. AfTer recording DehaTi Nalishi (EXP-1) in The village on The basis of informaTion of comblainanT MehTTar Monjhi (PW-1), merg inTimaTion of EXP—2 was also recorded. On The basis of dehaTi nalishi, FIR of EXP—14 was regis’reredc InquesT of EXP-4 over The person of deceased was prepared in presence of The‘wh‘nesses. SpoT map of Ex.P‘—6 was prepared by The InvesTigaTing Officer. Dead body was senT for auTopsy To CommuniTy HealTh CenTre, Gharghoda vide E3<.P—13, where Dr. S.K. Kesari (PW—11) conducTed posTmorTem examinaTion and gave his reporf of EXP—13A. Nazri naksha was ,goT prepared by Halka PaTwari Shri RaTan Singh SarThi (PW-7). Blood sTained DhoTi worn by The appellanT aT The Time of incidenT was Taken inTo possession vide Ex.P-’7. Weapon of offence, axe, sTained wiTh blood like subsTance was Taken inTo possession vie EXP—10. Ar’ricles seized during invesTigaTion including blood sTained axe, wearing apparels of The appellanT & The deceased and oTher arTicles were senT for chemical examinaTion To FSL, Raipur vide EXP—19 and The reporT of FSL is available on record wherein iT is menTioned ThaT axe seized aT The . insTance of The appellanT and DhoTi worn by The appellanT aT The Time of incidenT conTained blood. . AfTer compleTing invesTigaTion, charge sheeT was filed in The CourT of The learned Judicial MagisTraTe 1“ Class, ‘Gharghoda, who in Turn commiTTed The case To learned Sessions Judge, Raigarh from where The learned AddiTional Sessions Judge received The case on Transfer for Tgjal. Learned Trial CourT framed charge under SecTion 302 of The IPC againsT The accused/appellanT, who abjured his guilT. The prosecuTion, in order To esTablish The charge againsT The accused/appellanT, examined eleven wiTnesses in all. ThereafTer, sTaTemenT of The accused/appellanT was recorded under SecTion 313 of The Cr.P.C. in which he denied The @ circumsfances appearing againsf him in The prosecu’rion case and pleaded innocence & false implica’rion. He has fur’rher' s’ra’red that his brofher has implicafed him in a false case due ’ro land rela’red dispufe. . Learned Trial couri af’rer‘ hearing The argumen’rs of learned counsel for ’rhe respecTive parties, convicted and sentenced the appellant herein, as aforementioned. . Homicidal death of deceased Sukhwaro Bai is not in dispute. Even otherwise from the evidence of witnesses of extrajudicial confesswn namely Mehttar ManJhi (PW 1) dlrSanatram (PW—2) and also from the eVIdence of Dr S K Kesari (PW 11) who conducted postmortem over the person of the deceased and proved the postmortem report of EXP—13A wherein he found following injuries on the person of the deceased and hasl opined the catise of death as shock due to excesswe bleeding as a result of inJuries present over the persan of deceased and the same was homICIdal in nature, the homICIdal death of deceased Sukhwaro Bai is established. s INJURIES SUSTAINED BV THE DECEASED' - InCIsed wound of the Size 7x2 5 cm over backSIde of neck spindle shaped 4 cm deep - InCised wound of the si.ze 5x2 cm just below (Si little oblique to Injury No.1. . . Mr. Gupta, learned counsel for the appellant argued that there is no eyewitness to the incident and the conviction i’s based on the evidence of complainant Mehttar Manjhi (PW—1) & Sanatram (PW—2), who were witnesses of alleged extrajudicial confession. There are inherent contradictions in the version of above two witnesses, which make their evidence unreliable and untrustworthy. Evidence of extrajudicial confession is a weak type of evidence and the same cannot be made solitary basis for convicting the appellant. He further submitted that §anatram (PW—3) is a tutored witness as he has deposed as per instructions of Mehttar (PW-1). The appellant has some land related dispute with his brother’rMehttar and therefore, he has framed him in a false case. The appellant was not present in his home on the date of L sexjnqdent as he had‘gone to village Sambhar~singha . On ’rhe other hand, learned counsel for The S‘raTe suppom‘ing The impugned judgmem‘ argued The? The appellanT has made exTrajudicial confession before MehTTar (PW-1), who is his own broTher, immediaTely afTer The incidenT. His broTher lodged The reporT and disclosed The facT of exTrajudicial confession in The'reporT iTself menTioning The presenT appellanT as perpeTmTor of offence. IndependenT wiTness SanaTram (PW-3), who accompanied MehTTar when The appellanT made exTrajudicial confession, has also deposed abouT The confession made by The appellanT The appellanT also informed his broTher ThaT ofTer commITTIng murder he has Thrown The weapon of offence axe in The Badi from where The somefhas been seized by The police. DhoTi worn by The appellanT aT The Time of incidenT conTained blood sTains and The some has been duly verified in The r_eporT of FSL. In These circUmsTances, The Trial courT has righTly held The appellanT guilTy of crime. . We have heard learned counsel for The parTies. We have perused The record of The Trial CourT as also The impugned judgmenT. . ConvicTion of The appellanT is based on The evidence of MehTTar (PW-1), who is none oTher Than The real broTher of The appellanT. 10.MehTTar (PW—1) has caTegorically deposed ThaT on The daTe of incidenT when he had gone To Aamapahad in The morning aT abouT 8.00 a.m. wiTh SanaTram, Mahnuram & Sukulul The appellanT came There aT abouT 2.00 p.m., Took waTer and ThereafTer reTurned Towards his home. They again meT The appellanT on way aT abouT 4.00 p.m. while They were reTurning Towards village, when The appellanT made exTrajudicial confession regarding murdering his wife Sukhwaro Bai wiTh an axe. This wiTness gave informaTion To The police by Telephone and has furTher lodged DehaTi Nalishi (EX.P—1)‘on 15.4.2001 aT abouT 2.00 a.m. in which also he has menTiohed abouT The exTrajudicial confession made by The appellanT. GThis wiTness has been cross~examined aT lengTh by The defence and a suggesTion has been given To This wiTness ThaT he himself has murdered Sukhwaro Bai and lodged a false reporT againsT The appellanT, who had gone To oTher village on The daTe of incidenT, and implicaTed him in a false case However, he has sTouTly denied The suggesTion. .Fr‘om perusal of The evidence of Meh‘rmr (PW—1), we find ‘rhaf his evidence inspires confidence. Considering ThdT Meh'r’rar (PW-1) is real br'o’rher of appeilan’r and The appellanf by way of defence has no’r adduced any evidence 1'0 es‘rabhsh Thq’r There was any on—going dispu’re with his broTher, a bald defence fhaT his bro’rher has implica‘red him in a false case due To land relaTed dispuTe canno’r be accepfed. The evidence of lhis wifness is fur’rher corrobora’red from Dehafi Nalishi of EXP-1 as l well as evidence of Sanafram (PW—3) who accompanied him when The applellan‘r made exTrajudicial confession on The daTe of inciden’r and has l alsd sTaTed Tha’r The appellan’r confessed his guil’r befofe him ThaT he mundened his wife Sukhwaro Bai. The defence could noT be able To eliciT anyThing which makes The evidence of SanaTram (PW-3) unreliable and unTrusTwo'rThy. 12. In These circumsTdnces, considering The facT ThaT This is a house murder and The appellanT made exTrajudicial confession, we are of The opinion ThaT The Trial courT has noT commiTTed any illegaliTy or infirmiTy in basing convicTion of The appellanT on his exTraJudicial confession before MehTTar (PW—1) d SanaTram (PW—2). 13. In The resulT, There is nosubsTance in This appeal, The same deserves To be dismissed and is, accordingly, hereby dismissed. a ’ Sdl— Sd/- RN. Chandtak” DHJRENDRA MISHRA Judge Judge