~^^ (%% HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: APPELLANTS (In Custody) RESPONDENT HON'BLEMR. T.P. SHARMA & HON'BLE MR. R. L. JHANWAR. JJ. Cr. A. No. 465/2001 (1) (2) Versus Podyami Chaitu, S/o Podyami Handi, Muda, Aged 40 yrs. Podyami Dosi, W/o Podyami Chaitu, Aged 35 yrs., Muria. Both R/o Village Metapal, Majharipara, P.S. Katekalyan, Distt Dantewada (C.G.) State of Chhattisgarh. MEMORANDUM OF CRIMINAL APPEAL U/S 374 (21 OF THE CODB OF CMMINAL PROCEDURE. Present- Ms. Nirupma Bajpai, Advocate for fhe appellants. Mr. D.K. Gwalre, G.A. for fhe State/respondent (i/ QRAL-JUDGEMBNT (Passedon 29/01/2010) The followms tudgment of the Court was passed bv T.P. Sharma, Js- 1. Challenge in this appeal is to the judgment of conviction aiid oi-der of sentence dated 26.03.2001 passed by First Additional Sessions Judge, Bastar at Jagdalpur, in Sessions Trial No. 489/2000 whereby & whereunder after holding the appellant No. 1 Podyami Chaitu guilty for the commission of culpable homicide amoiinting to murder of his son Siikliuram convicted the appeUant No. 1 Podyami Chaitu under Sections 302 8& 201 of the Indian Penal Code and sentenced imprisonment for Ufe and fine of Rs. 100/- >4, cc^ and m default of payment of fine to fiirther rigorous imprisonment. for 3 months and rigorous imprisonment for 3 years and appellant No. 2 Podyami Dosi has been convicted under Section 201/34 of the Indian Penal Code and sentenced rigorous unprisonment for 3 years. Appellant No. 2 Podyami Dosi has been released after completion of part of sentence as a result of remission. Judgment is mipugned on the ground that without any iota of evidence sufficient for conviction of appellants Coiirt below has convicted and sentenced fhe appellants aforementioned and thereby committed an iUegality. The brief case of the prosecution is that on fateful day of 19/9/2000 at night the deceased whom appeUant N0. 1 Podyami Chaitu father ofthe deceased earUer given Rs. 100/- and directed to purchase salt, oil, chilly and rice but ta stead ofpurchasing the articles necessary for the UveUhood deceased spent thie money and purchastng the liquor and after consuming fhe liquor he came to his house he was in drunken condition. AppeUants asked about articles some altercation took place fhen fhe deceased son of the appeUants assaulted the appellant No. 1 i.e. to his father then the appellants annoyed and pushed ftie deceased on the land and sti^ngulated by twisting fhe neck by the appeUant No. 1 and caused his deafh. After causing his deafh fhe appellant No. 1 Podyami Chaitu along with appellant No. 2 his wife Podyami Dosi took the dead body near caiial and with a view to conceal of evidence of criminal case they thrown the dead body in the field. ^c Appellant No. 1 Podyanii Chaitu went to the Police Station and lodged the Marg intunatiion vide Ex. P-9. He has lodged the Fu-st Information Report vide Ex. P- 10. The investigatmg officer left the scene of occurrence and after summoning, the witnesses vide Ex. P-11. Inquest over the dead body of deceased Sukhram was prepared vide Ex. P-3. Dead body was sent for autopsy to Primary Healfh Centre, Katekalyan vide Ex. P-12. Autopsy was conducted by PW5 Dr. O.S. Kanwar vide Ex. P-8 and found following circLunstances:- Tuming rounded dislocation of Cervical Vertebra, swelling over the neck. Cause of death was throttling and death was homicidal m nature. 4. Accused/Appellant No. 1 Podyami Chaitu taken in to custody. He made disclosure statement of the cloths of the deceased vide Ex. P-7 saine was recovered at the instance of the appeUant No. 1 vide Ex. P-5. One old customary bed sheet {Kathri} was recovered vide Ex. P-6. Spot map was prepared vide Ex. P-13. Patwari was also prepared the spot map vide Ex. P-17. 5. Statement of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short the Code^ After completion of fhe investigation charge-sheet was filed before the Chief Judicial Magistrate, Dantewada who in tum committed the case to the Cozirt of Sessions, Bastar. Leamed Additional Sessions Judge received the case on transfer for trial. 6. In order to prove tfae guilt of fhe accused/appeUants prosecution examined as well as 8 witnesses. Accused persons were examined .^^' /y^^^ ;/ ^Y '^. ^ '^ (? under Section 313 of ttie Code where tfaey derded the circumstaaces appeadng against fhem, innocency and false implication is claimed. 7. After affording an opportunity of hearing to the parties, leamed Additional Sessions Judge convicted and sentenced the appellants aforementioned. 8. Leamed counsel for the parties are heard. Judgment impugned and record of Court below perused. 9. In the present case, appeUant No. 2 Podyami Dosi has been convicted under Section 201/34 of the Indiaa Penal Code and sentenced rigorous imprisonment for 3 years. According to fhe infonnation given by the leamed counsel for fhe appellants and respondent/State that she has completed the sentence and after remission she has released. 10. Leamed counsel for the appellants vehementiy ai^ued fhat m the present case, conviction is based on dtrect evidence of PW8 Sukhdev Singh, Upsarpcm.ch relating to extra judicial confession made by the appellant No. 1. 11. Leamed counsel for the appellants further submits fhat evidence of PW8 Sukhdev Singh is not reliable. Ofher members of the Panchayat have not corroborated fhe evidence of PW8 Sukhdev Singh alleged extra. judicial confession is a week type of evidence and in absence of corroboration from independent soiirces same is not safe to rely ofthe commission offhe appellants. (.£ 12. On fhe other hand, learned counsel for fhe respondent/State opposed the appeal and submits that PW8 Sukhdev Singh was Upsarpanch of the village and was responsible person for the village, before whom appellants have made extra judicial confession of the guilt although evidence of extra judicial confession is a week type of evidence but once it is proved to be true, then it may be sufiicient for the conviction ofthe appellants. 13. In order to appreciate the argument advanced on behalf of the parties we have examuied the evidence adduced on behatf of the prosecution. 14. In the present case homicidal death as a result of fhrottling/ante- mortem injury has not been substantially disputed by the appellants on the other hand, it is estabUshed by the evidence of PW5 Dr. O.S. Kanwar and autopsy report Ex. P-8 which reveal fhat neck of fhe deceased was twisting and cause of death was throtUing. The death was homicidal in nature. 15. As regard the complicity of the appellants m crime in question is concemed, the conviction is based on extra judicial confession made by the appellants to the PW8 Sukhdev Singh, Upsarpanch. PW8 Sukhdev Smgh has deposed in his evidence that after the death of deceased Sukhram Panchayat was convened. AppeUants made disclosure statement before Panchayat fhat he has committed the murder of his son Sukhram before members of the Panchayat which he has recorded vide Ex. P-20 and has also obtained the fhumb impression of the appellants Ex. P-20 was C.C sent by him. After obtaining thumb impression of ftie other members ofthe Panchayat to the Station In-charge, Police Station Katekalyan vide Ex. P-19. 16. Defence has cross examined fhis witnesses at length but has not asked any question relatmg to extra judidal confession made by the appellants before him and Panchayat B)vidence of PW8 Sukhdev Singh has corroborated by the written extra judicial confession Ex. P-20 which has been sent to the Police Station Ex. P-19. Other witnesses of Panchayat have not supported the factum of extra judicial confession. Prosecution has declared them hostUe but PW2 Sannu and PW3 Sundi has admitted in fheir evidence that Panchayat was convened. Appellant Podyami Chaitu and his wife Podyami Dosi were present in the Panchayat Appellants told to fhe Panchayat on the date of incident he had given Rs. 100/- to the deceased son for brmgmg articles from the market but the deceased consumed liquor. The part of the statement given by the appellants have been corroborated by aforesaid hostile witnesses and fhey have partly corroborated the evidence of PW8 Sukhdev Singh and Panchnama Ex. P-20. evidence of PW8 Sukhdev Singh relating to the extra judicial confession made by the appellants before him and Panchayat corroborated by fhe written Panchama Ex; P-20 and partly corrobqrated fhe evidence of hostile witnesses PW2 Saiinu and PW3 Siindi insptre confidence and safe to rely up to the extent with appellant Podyami Chaitu has made extrajudicial confession before Panchayat Extra judicial confession is also an evidence and tf it is proved to be torue then same may be relied for the commission of the accused. 17. While dealing with the evidentiary value of extra-judicial confession made under Section 24 of the Evidence Act, fhe Apex CoLirt in the matter of Baldeu Singh v. State of Punfabl has held that extra-judicial confession is generally of weak type of evidence. No conviction ordinarily can be based solely thereupon uiiless same is corroborated in material particulars. 18. While dealing with the same question, the Apex Court in the niatter of Mohd. Azcud (% Sa/nin v. Stcste of West Benfial2 has held fhat if extra-judicial confession made voluntadly and truth in a fit state of mind then it can be relied upon and confession will nave to prove like in any other evidence. Para 22 of the said judgment reads as under:- ^22. An extra-judicial confession, if voluntary and true and made in afit state of rmnd, can be relied upon by the oourt. The confession imll have to be proved like any other /ac(. The value of the evidence as to confession, like any oiher evidence, depends upon the veradty of the witness to whom it has been nwide. Tfie vahie ofthe evidence as to the confession depends on the reliability of the witness who gives the eindence. It is not open to any court to start with a presumption that extra'-judiaal confession is a weak type of evidence, It would depend on the nature of the drcumstances, the time when the confession was made and Ihe credibility of the witnesses zuho speak to sudz a confession, SucJz a confession can be relied upon the conviciion can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inirmcal to the accused, and in respect of whom nothing is brought 12009AIRSCW3730 22009 AIR 8CW 752 ^ & :'Y c out which may tend to indicate that he may have a motive of attributing an urztruthful statement to the accused, the zoords spoken to by the witness are clear, unambiguous and ujwrzistakably convey that the accused is the perpetrator of the crime and nothing is omiited 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-judidal confession can be cbooepted and can be the basis ofconviction ifitpasses the test of credibilitys 19. As regard fhe question of motive is concemed extra judicial confession made by the appellants and written Panchnama Ex. P- 20 clearly reveals fhat appeUant No. 1 gave Rs. 100/- to his deceased son for bringing salt, oil, chilly and rice for their Uvelihood but in stead of brmging aforesaid articles he spend the money for purchasing liquor and after consumtng liquor he came to the house when fhe appellant No. 1 objurgated the deceased then the deceased slapped the appellant No. 1 then appellant No. 1 annoyed over fhrow hun in fhe land and twisted his neck as a result of twisting of the neck he died. He along with his wife co- accused took his dead body and had thrown in the field. This extra judicial confession clearly reveals fhat instead of bringing the necessary articles for livelihood of the famUy deceased spend the money for consuming liquor and when fhe appellant objurgated him then he crossed the discipline and slapped his fafher and provoked him then the appeUant caused deafh of ftie deceased on sudden provocation. The act of appellants is clearly falls under explanation of Section 300 of the Indian Penal Code which reads as foUows :- ^ .V) L. ExcepHon 1.- When culpable hofnicide is not fnurder.- Culpable homicide is not murder if the offender, whilst deprived ofthe power of self-oontrol by grave and sudden provocation, causes the death o/ the person who gave the provocation or causes the death of any other person by mistake or accident. 20. The act of the appellants does not traveled beyond the scope of under Section 302 Part-II and Section 201 of the Indian Penal Code. 21. After appredating the evidence of fhe prosecution Court below has convicted the appeUant No. 1 under Section 302 & 201 of the Indian Penal Code and appeUant No. 2 iinder Section 201 read with section 34 of fhe Indian Penal Code but has not considered the evidence fhat appellants was provoked by the deceased by beating his father and on sudden provocation the appellants have caused the deafh of fhe deceased fhereby committed an illegality. 22. For fhe foregoing reason, appeal is partly allowed. Conviction of the appellant No. 1 namely Podyami Chaitu under Sections 302 & 201 and appellant No. 2 namely Podyami Dosi under Section 201/34 of the Indian Penal Code and sentenced iniposed to them is hereby maintaiaed. Conviction of the appellant No. 1 Podyami Chaitu under Section 302 ofthe Indian Penal Code is altered into under Section 304 Part-II of fhe Indian penal Code and considering the circumstances sentenced to imprisonment for 10 '^^m^- custodial period i.e. from 19. 10.2000 till today for about 9 year & 3 months. He be released if not required in any other case. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge