^K HIGH COURT OF CHHATTISGARH. BILASPUR D.B. Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. CRIMINAL APPEAL No.525 of 2003 Parmeshwar Vs. State of Chhattisgarh :& JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEVGUPTA .J ^y .^: I SdA Chief Justice Post for Judgment : ^"/08/2008 _Q^ Sd/- Sunil Kumar Sinha Judge —— ^K HIGH COURT OF CHHATTISGARH. BILASPUR D.B. Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. CRIMINAL APPEAL No.525 of 2003 APPELLANT c RESPONDENT Parmeshwar, age 28 years, S/o Jethuram Satnami, R/o Village - Kapsda, Police Station - Old Bhilai, Distt. - Durg (C.G.) Vs^ State of Chhattisgarh Through Station House Officer, Police Station - Urla, District - Raipur (C.G.) APPEAL U/S 374(2) OF THE CODE OF CRIMINAL PROCEDURE Appearance: Shri Y.C. Sharma, counsel for the appellant. Shri Akhil Mishra, Dy. Govt. Advocate for the State. JUDGMENT (S~.08.2008) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) Appellant Parmeshwar has filed this appeal against the judgment of conviction and order of sentence dated 15.2.2002 passed by the V Addl. Sessions Judge, Raipur, in Sessions Trial No.301/2001 whereby he has been convicted u/s 302 IPC and sentenced to undergo R.l. for life. (2) The brief facts are that the deceased namely Kewra Bai was wife of the appellant. She was residing with the appellant in a rented premises in Urla Basti. Her mother, Bhukhan Bai (P.W.10) was also rn^mv W^&^i^'^^^ Cr.A.No.525of2003 (-DB) residing in a nearby house. On the fateful day i.e., 04.7.2001 at about 5 p.m., Bhukhan Bai was sitting along with her daughter Kewra Bai in front of the house of Kewra Bai. When the accused appellant came there, Kewra Bai had some hot exchanges with the accused saying that how they will maintain themselves when he will not work. Thereafter, a quarrel took place between the husband and wife and during the course of quarrel, the accused/appellant took out a knife from the back of his full pant, caught the tuft of the hair of the deceased and gave repeated knife blows to her vital parts. A neighbour Sadhelal Satnami (P.W.2) tried to intervene, on which, the accused/appellant said that "I will do with my wife whatever 1 like, who are you to say ?" Seeing the above attitude of the appellant, Bhukhan Bai immediately rushed to call Kotwar Fattechand (P.W.14) but by the time they could return back, the deceased has succumbed to the injuries and the appellant had already left the scene of occurrence. They saw multiple injuries on the person of the deceased. An information was telephonically given to Police Station, LJrla, which was reduced into writing vide Rosnamcha Sanha No.128. On receiving such information, Sub-lnspector R.B.S. Parihar (P.W.18) immediately left for the scene of occurrence along with Head- Constable A.R. Sahu (P.W.9). They met Bhukhan Bai andrecorded Dehati A/a//s/7/", Ex.P.11. Merg intimation was also recorded on the instance of Bhukhan Bai vide Ex.P.14. After giving notices (Ex.P.3) to Panchas, inquest on the body of the deceased was prepared under Ex.P.4 and the dead body of the deceased was sent for postmortem examination under Ex.P.15. Dr. Sanjay Kumar Dadu (P.W.8) conducted the postmortem examination and noticed the following external injuries: Cr.A.No.525of2003 fDB) a 1) Incised wound on the anterior aspect of left side of neck, size 10 x 3.0 cm; 2) Incised wound on the anterior aspect of right side of neck, size 4 x 2.0 cm; 3) Incised wound on the anterior aspect of neck at middle, size 8 x 1.0 x 1.0 cm. transversely placed, muscle deep; 4) Incised wound on the anterior aspect of right side of neck, size 7x3.0x1.0 cm obliquely placed, muscle deep; 5) Incised wound present just right to middle over chin, size 3.5 x 0.5 cm; 6) Incised wound on right lateral aspect of neck and just posterior to mastoid, size 9 x4 x 1.0 cm; 7) Incised wound on the posterior aspect of right side of neck, size 4x3x1 .Ocm; 8) Incised wound on the posterior aspect of left side of neck, size 6x3x1.0 cm; 9) Incised wound present on left side of neck, size 6 x2 x 1.0 cm; 10) Superficial incised wound on right side of face just below ear lobule, size 7x1.0 cm; 11) Linear abrasions one over uppertip right, another below right molar eminence & third over left cheek, size 3.5 x 0.1 cm transversally placed , 2.5 x 0.1 cm vertically placed & 1 x0.1 cm vertically placed, respectively; 12) Superficial incised wounds on the right supraorbital margin lateral end, size 4 x 1.0 cm & another on bridge on nose, size 1 x 0.3 cm; 13) Abrasion on lateral end of left supra-orbital region, size2x 1.0cm 14) Superficial incised wounds just below suprasternal notch, right side of chest one below the other size 2.5 x 0.2 cm transversally placed & 2 x 0.2 cm transversally placed, respectively; Cr.A.No.525of2003 (DB} 15) Incised wound on right side of chest, size 1 x 1.0 cm obliquely placed, muscle deep; 16) Incised wound on right side of chest size 3 x 0.3 cm transversally placed, muscle deep; 17) Superficial incised wound just below clavicle bone, size 1.5x0.3 cm; 18) Superficial incised wound below suprasternal notch just right to middle, size 3 x0.2cm; 19) Superficial incised wound on left side of chest below suprasternal, size 7 x 1.5 cm; 20) Superficial wound present just lateral to injury No. 19, size 1.5x 0.3 cm; 21) Superficial incised wound on the anterior aspect of left side of arm at middle, size 3.5 x 0.3cm; 22) Incised wound on the anterior aspect of left forearm, size 6 x 1.Q cm vertically placed, muscle deep; 23) Incised wounds on the right lateral aspect of chest, size 14 x 5.0 cm; 24) Stab incised wound on the right lateral aspect of chest, size 2 x 1.0 cm; 25) Linear abrasion size 7 x 0.1 cm vertical from anterior end of injury No. 23; 26) Multiple linear abrasions present just anterior to injury No. 24; 27) Superficial incised wound on the anterior aspect of abdomen, size 2 x 0.2 cm; 28) Stab incised wound on the anterior aspect of abdomen size 7 x 2.0 cm; 29) Superficial incised wound on the anterior aspect of abdomen, size 4x1.0 cm; 30) Superficial incised wound just above lateral end of injury No. 29, size 6 x 0.2 cm; 31) Superficial incised wounds two in number in same place 10.0 cm below xiphisternum, one 1.0 cm & another 3.0 cm on left lateral '^^^ll"?"?^^^!^ Cr. A. No.525 of2003 CDB) ^ to midline, size 1 x 0.1 cm & 1.2 x 0.2 cm, respectively; 32) Two stab incised wounds in same place 10.0 cm below xiphisternum on 4.0 cm & 6.0 cm on left lateral to midline, size 1.2 x 0.3 cm&2.2x 1.0cm; 33) Stab incised wound 11.5 cm below xiphisternum & 2.5 cm on left lateral to midline, size 2 x 0.2 cm; 34) Stab incised wound 12.0 cm below xiphisternum & just left to midline, size 3 x 0.3 cm; 35) Incised wound on the posterior aspect of right shoulder, size 3.5 x 1.5 cm, transversally placed, muscle deep; 36) Incised wound on right side of arm, size 5 x 1.5 cm, transversally placed, muscle deep; 37) Superficial incised wounds one on left side of palm, size 2.5 x 0.1 cm; another on palmar aspect of left thumb, size 1.5 x 0.3 cm & other on middle phalanx of little finger, size 1 x 0.5 cm; 38) Incised wounds on the left hand palmar aspect on middle finger, middle & proximal phalanx, size 3x1.0 cm; another at left of palm & ring finger, size 2x1.0 cm; 39) Incised wound on the left hand index finger; 40) Superficial incised wound on the right hand palmar aspect middle finger & middle phaianx size 3 x 0.3 cm; 41) Superficial incised wound on the anterior aspect of right knee, size 6.5 x 3 cm and 42) Abrasion on the posterior aspect of left elbow, size 3 x 1.0 cm. On internal examination, he found that there was clotting of blood in the skull below the skin; there was cut injury of about 1 cm in the lower portion of the right lung; about 100 cc blood was stored in right plural cavity; left lung was congested; trachea was cut at the place of C-4 bone; there were many incised wounds over the intestinal membrane; ! -^T Cr. A. No.525 of 2003 CDB) Oesophagus was cut at the place of C-4 bone; incised wound was there on the stomach; the lower blood vessel to the stomach was also cut; there were marks of many incised injuries on the small intestine and about 200 cc cream coloured substance was found in the stomach. The autopsy surgeon opjned that the cause of death was shock and hemorrhage as a result of injuries over the neck; the injuries were caused by hard and sharp object and the death was homicidal in nature. He prepared his report, Ex. P.8. In further investigation, when Head Constable A.R. Sahu (P.W.9) and Sub-lnspector R.B.S. Parihar (P.W.18) reached to Kumhari Police Chowki, they met the accused there. The accused was accompanied by Punit Das (P.W.11), Kotwar of village Kapsda and Satrughanlal (P.W.2) a resident of that village. These persons had gone to hand over the accused to Police Chowki Kumhari on the instructions of maternal uncle of the accused namely Ayodhya Prasad (P.W.1), before whom the accused/appellant had made an extra judicial confession in village Kapsda just after the incident. The Head Constable seized the blood stained knife, half shiri: and full pant ofthe deceased by preparing seizure memo, Ex.P.1. The seized articles were sent for their chemical examination to the Forensic Science Laboratory, Raipur, vide Memo Ex.P-20 & P-21 and the F.S.L. report Ex.P.22 was received. According to the F.S.L. report, blood stains were found on the full pant, shirt and the knife which were seized from the possession of the accused. In further investigation, the statements of various witnesses, including two eye witnesses, namely Bhukhan Bai (P.W.10) & Sadhelal Satnami (P.W.12) and the witnesses of extra judicial confession namely Ayodhya Prasad (P.W.1), Kotwar Punit Das (P.W.11) & Satrughanlal (P.W.2), were recorded. Cr.A.No.525of2003 (DB) 9 c (3) After completion of investigation, the charge sheet was filed in the Court of Judicial Magistrate, First Class, Raipur, who in turn committed the case to the Sessions Judge, Raipur, from where, it was received on transfer by 5 Addl. Sessions Judge, Raipur, who, after conducting the trial, convicted and sentenced the accused/appellant, as aforementioned. (4) On trial,the two eye witnesses^named above,did not support the case of prosecution. However, the trial Court, believing the factum of extra judicial confession to be fully proved on the basis of evidence of Ayodhya Prasad (P.W.1), Kotwar Puneet Das (P.W.11) & Satrughanlal (P.W.2) corroborated by other circumstantial evidence like seizure of blood stained clothes and weapon from the possession of the accused/appellant, recorded a finding of conviction against him. (5) Learned counsel for the appellant argued that the finding of the extra judicial confession does not appear to be based on clinching and reliable evidence with corroboration thereof, therefore, the conviction - based upon the alleged extra judicial confession of the appellant before his maternal uncle Ayodhya Prasad (P.W.1) cannot be sustained. (6) On the other hand, learned State Counsel opposed these arguments and supported the judgment passed by the trial Court. (7) We have heard learned counsel for the parties at tength and have also perused the records of the Sessions Case. (8) In the matter of State of U.P. -vs- M.K. Anthonv (1985) 1 SCC 505, the Apex court held that there is neither any rule of law nor of prudence that evidence furnished by extra judicial confession cannot be Cr. A. No.525 of2003 CDB) s.. (..- relied upon unless corroborated by some other credible evidence. The courts have considered the evidence of extra judicial confession a weak piece of evidence. 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 havea 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, in such a situation to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. If the evidence of extra judicial confession is reliable, trustworthy and beyond reproach the same can be relied upon and a conviction can be founded thereon." (9) Further in the matter of Naravan Sinah -Vs- State of M.P.. f1985) 4 SCC 26, the Apex Court held that it is not open to any court to start with a presumption that an extra judicial confession is a weak type of evidence and it depends upon the veracity of the witnesses to whom it is made and it is for the court to decide on the acceptability the evidence having regard to the credibility ofthe witnesses. (10) Again in the matter of Baldev Rai -Vs- State of Harvana. 1991 supp f1) SCC 14 the Apex Court laid down that "An extra judicial confession, ifvoluntary, cah be relied upon by thecourt along with other ^^;3't:;^|^^^^||:^^^j@^!I|^ Cr.A.No.525of2003 (DB) evidence in convicting the accused. The value of the evidence as to the confession depends upon the veracity of the witnesses to whom it is made. It is true that the court requires the witness to give the actual words used by the accused as nearly as possible but it is not an invariable rule that the court should not accept the evidence, if not the actual words but the substance were given. It is for the court having regard to the credibility of the witness to accept the evidence or not. When the court believes the witness before whom the confession is made and it is satisfied that the confession was voluntary, conviction can be founded on such evidence. Keeping these principles in mind, the Apex Court found in this case that the confession has been properly accepted and acted upon by the courts below and there was no scope for any doubt regarding the complicity of the appellant in the crime. The confession of the appellant was voluntary. The testimony of PW 4 and PW5 being responsible persons could not be doubted in the absence of any material to show that they had been motivated to falsely implicate the appelJant. The very presence of the appellant and his father with the party of Ishar Dass throughout the operation up to lodging of complaint at the police station, dispel any suspicion against the prosecution case and clearly point to the truthfulness of the same. His Lordships said that, therefore, they were unable to find any infirmity in the confession which has been accepted and relied upon by the courts below." (11) In the case of Kavita Vs. State of Tamilnadu. (1998) 6 SCC 108, the Apex Court again reiterated the same principles that there is no doubt that convictions can be based on extra judicial confession but it is well settled that in the very nature of things, it is a weak piece of 10 Cr.A.No.525of2003 (DB} evidence and therefore, it is to be proved just like any other fact and the value thereof depends upon the veracity of the witness to whom it is made. It may not be necessary that the actual words used by the accused must be given by the witness but it is for the court to decide on the acceptability of the evidence having regard to the credibility of the witnesses. (12) Further in the matter of State of Punjab -Vs' Gurdeep Singh, 1999 SCC (Cri.) 1368, again the Apex Court emphasized that in the matter of evidence of extra judicial confession, the evidentiary value of the evidence depends upon the veracity of the witnesses to whom it is made and it can be treated as substantive evidence if there is found some assuring material or circumstance and the delay in recording extrajudicial confession before a person wholly unconnected with the police is always a matter of great suspect. (13) In the matter of Sukhwant sinah alias Balwinder Sinah -Vs- State throuah C.B.I.. AIR 2003 S.C. 3362 the Apex Court saying about the statement of the co-accused, laid down that if confessional statement of a co-accused is acceptable to the Court even without corroboration then a confession of a co-accused can be the basis of conviction of another accused so implicated in that confession. Therefore the fact that the appellant accused had not confessed or the confessional statements made implicating him by co-accused are not independently corroborated, will not be a ground to reject the evidence produced by the prosecution in the form of confessional statement of co-accused provided the confession relied against the appellant accused is acceptable to the Court. ff ^ ^ j! :-^-%Kgy'J^%^^tJ 11 Cr. A. No.525 of 2003 (-DB) t (14) Referring to the decision rendered in the matter oi Sukwant Singh (Supra), the Apex Court again held in the matter of Gaaan Kanoiia and another-Vs- State of Puniab 2007 (2) Crimes 81 (SC), that the extra judicial confession can form the basis of a conviction and by way of abundant caution, Court may look for some corroboration. (15) Therefore, on the basis of above principles, it is clear that there is no rule of law that the evidence of extra judicial confession cannot be relied on alone and for recording a conviction on such confession, there should be corroboration by some other evidence. On the contrary, if the evidence of extra judicial confession is reliable, trustworthy and is beyond the shadow of doubts, the same can be made the sole foundation for recording conviction ofthe accused and the Court by way of abundant caution, may look for some corroboration. (16) If we look into the evidence of the case on hand, admittedly, the two eye witnesses namely Bhukhan Bai (P.W.10) the mother of deceased and Sadhelal Satnami (P.W.12), neighbour ofthe deceased have completely turned hostile and they have not supported the case of prosecution. (17) As far as the extra judicial confession is concerned, P.W.1 Ayodhya Prasad deposed that on the fateful day at about 7.30 p.m., he was in village Kapsda, and he heard hue and cry that the accused has come to the village after committing murder of his wife. On hearing all this, he immediately went to the house of accused and asked him, on which, the accused replied that he has committed murder of his wife. At that time, about 25-30 persons were there. Hearing all this, he advised to the accused to go to the police station and for this he called '^^•••y w ^ ^^.^.:^'" 12 Cr.A.No.525of2003 ('DB1 c, Kotwar Punit Das (P.W.11) & Satrugh^nlal (P.W.2), who took the accused to Police Chowki, Kumhari. Though, this witness has been cross-examined by the defence giving many suggestions about the fidelity of the deceased and about not keeping good mental condition of the accused/appellant, but the defence has not been able to elicit any such circumstance which may discredit the credibility of this witness regarding the extra judicial confession made by the accused. This witness is the maternal uncle of the accused and is resident of village Kapsda, which is a nearby village where the accused and the deceased were residing in a rented house. It appears to be a natural conduct of the accused that after committing murder of his wife, he immediately left the scene ofoccurrence i.e., village Urla and rushed to his native place and disclosed the story to his maternal uncle who was quite elder to him in his family. The conduct of this witness, Ayodhya Prasad (P.W.1), also appears to be natural when after hearing about the murder ofthe deceased by the accused/appellant he immediately called village Kotwar Punit Das and handed over the accused to him by instructing him to take the accused to Police Station. (18) It nowhere comeson record that this witness was biased or even remotely inimical to the accused which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused. His evidence shows that the confession was made before him in clear words and was unambiguous and nothing is omitted by him which may go against his credibility. If we appreciate the evidence of this witness in light of other material/circumstantial evidence on record, it would appear that Kotwar Puneet Das (P.W.11) and Satrughan Lal (P.W. 2) have corroborated his evidence. Puneet Das deposed that on the 13 Cr.A.No.525of2003 fDB) fateful day, Ayodhya Prasad (P.W.1) came to his house and stated that accused has come from village Urla and he is saying to go to Police StationUrla. He also stated to him that the accused has committed murder of his wife. On this, he went to the house of accused and took him to Police Chowki, Kumhari where he met Raipur Police who completed the procedure of seizure of various articles. (19) P.W.2 Satrughanlal has also deposed in similar fashion saying that Ayodhya Prasad came to his house and told that the accused has stated to him that he has killed his wife and they are to go to police station, on which, he along with Kotwar Puneet Das, Ayodhya Prasad and accused Parmeshwar went to Police Chowki, Kumhari. (20) The factum of taking the accused appellant to Police Chowki, Kumhari and handing over him to the Police is also proved by the evidence of Head Constable A.R. Sahu (P.W.9) who deposed that when on telephonic information he reached to the spot and thereafter to Police Chowki Kumhari, by that time accused Parmeshwar, Kotwar Puneet Das (P.W.11) and Satrughanlal (P.W.2) had also reached to the said police chowki, where the accused/appellant handed over one blood stained knife to him. The clothes of the accused (half shirt and full pant) were also blood stained. They were also taken into possession by this witness and in presence of Puneet Das (P.W.11) and Satrughanlal (P.W.2) a seizure memo to this effect (Ex. P.1) was prepared. This witness has been formally cross examined by the defence and nothing has been brought on record against his credibility. (21) A perusal of the records would show that these seized articles as also the clothes of the deceased and plain soil and blood stained soil /& 14 Cr.A.No.525of2003 (DB} L seized from the place of occurrence were sent for their chemical examination to the Forensic Science Laboratory, Raipur, by Memo Ex.P-20 & P-21 and a report vide Ex.P.22 was obtained. The contents of the report would show that apart from the clothes of the deceased and the blood stained soil, blood was also found on the full pant, half shirt and the knife which were seized from the possession of the accused/appellant. (22) Therefore, it is apparent that the evidence of P.W.1 Ayodhya Prasad is corroborated by the evidence of P.W.11 Puneet Das & P.W.2 Satrughanlal and it is further corroborated by the act of taking accused to the Police Chowki, Kumhari, and handing over him to the Police and also by seizure of clothes and knife from the possession of the accused, on which, the blood stains were found in their chemical examination. Therefore, in the facts and circumstances ofthe case, the evidence of extra judicial confession which the accused made before his maternal uncle Ayodhya Prasad