W aaw W w ; § a gum #2 i ’Yy rff»f' ‘ g ! IGH COURT OF CHHATTISGARH AT BILASPUR (HOn. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 797 of 2006 Dharam Sai Rajwa‘r APPELLANT VERSUS State of Chhattisgarh RESPONDENT Shri Rakesh Pandey counsel for the appellant. Shri Neeraj Mehta 'PL for the respondent/State. @IMINAL APPEAL UNDER SECTION374 OF THE CODEOF CRIMINAL PROCEDURE. J U D_G ME N,T V (1 1 .02.2‘01 1) This appeal is directed against the judgment and order dated 13.09.2006 passed by the Additional Sessions Judge (FTC) Surajpur in Sessions Trial No. 55/2006 convicting the accused/appellant under Section 304 (Part-I) of the Indian Pen‘a’l 7 Code and sentencing him to undergo rigorous imprisonment fOr‘ten years and pay fine of Rs. 500, in default of payment of fine to further undergo rigorous imprisonment for one month. 2. Case of the prosecution in brief is that on 5.12.2005 merg intimation Ex. P-12 was given by Ram Bhajan (PW-1) in policerout post Bhatgaon which was later on transferred to police station Pratappur and recorded as Ex. P-3. By this merg intimation it was informed by said Ram Bhajan (PW-1) that deceased Buddhi Bai'was married to the present appellant and that on 4.12.2005 accused/appellant had come to his house and informed that on account of being abused by the deceased he assaulted her with club as a result of which she fell down in the thrashing field and died. Me'rg intimation further states that at the time when accused/appellant confessed his guilt, Ram Chandra (PW-2) and one Hukum Sai were also present. It also mentions that both Ram Bhajan and Ram Chandra (PW—1 and PW—2 respectively) had gone ‘to the hoUse of the accused/appellant and saw the dead body of the deceased. Based on this merg intimation, FlRs Ex. P-13 and Ex.P-'4 were registered at police out post Bhatgaon and PoliCe Station ww K H f Pratappur respectively for the offence under section 302 IPC vide Crime No. 263/2005. After investigation challan was tiled on 23.12.2005. -2..— 3. So as to hold the accused/appeliant guilty, prosecution has examined 09 witnesses in supportof its case. Statement of the 'accused/appeilant was aiso recorded under section 313 of the Code of Criminal Procedure in which he denied the charge levelled against him and pleaded his innocence and false implication in the case. This apart, one Shiv Narayan (DW-1) has also been examined by th%"defence in support of its case. 4. After hearing the parties the trial Court has acquitted the s . accused/appellant of the charge under section 302 IPC but convicted and sentenced him as mentioned above. ;.o 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. Counsel for the accused/appellant submits that the entire cas of the prosecution is based on circumstantial evidence where on the t 6. basis of extra judicial confession made by the accused/appellan before Ram Bhajan (PW-1) and Ram Chandra (PW-2) the Court below has convicted himuunder Section 304 (pat-l) IPC. He submits that extra judicial confession is a very weak type of evidence and merely on the basis of the same, he should not have been convicted by the Court below. He submits that Harihar Lal (PW-6) —- the witness of memorandum and seizure (Ex. P48 and P-9) has not supported the case of the prosecution and has been declared hostile. He submits that the Court below ought to have accepted the evidence of defence witness namely Shiv Narayan who has stated that the accused/appellant had informed him as also Ram B'hajan (PW-1) about the death of deceased. He submits that deceased had / succumbed to the head injuries received by her because of being dashed against a ridge. 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that voluntarily made extra r . . e C45 judicial confession by the accused/appellant before‘ Ram Bhajan . ‘(PW—1) and Ram Chandra (PW—2) has been duly proved by the prosecution beyond a_ll reasonable doubts and therefore the same being a strong piece of evidence has rightly been made the basis for conviction by the Court below. He submits that it is not the case of the accused/appellant that the deceased died an accidental death after being hit against something as in his statement recorded under Section 313 of the Code of Criminal Procedure, the ‘ accused/appellant has taken"a plea of alibi. He submits that the medical report of the deceased also makes it clear that the deceased died due to injuries which were homicidal in nature. ~ 3_‘ i 8. a j (-).has d in h vid t us/llan n to r-i-lw th ease s is sit. Aci to this witss, t ccused/apllant wrking i l M ha k d by lting w a pie od. h i h tated tht e accued/pll himself hd nfeed his gui t i ai ha he had asslted e ith lb esult of hich h died. H hs stated ht the ime t cd/aa had disclsd the incide to im, wi, S a Cnr w so rent th O mg o aou tho usapent the wen £ Rm Bhaan PW1 state is eence tha accedappet happes be his brothena and e dced wa h ser cordng ne he ape who was o n Coa ines s illed the decease assau ith ec of wo Tis wtness as s a th sapeant a coss lt o‘ hm syng tt au the decased w a cu as a r w se e a ta at t when he acuseppellnt oe nt h his fe one Hukum ai and Rm hada ere al pse ere. n coin to knw bt the incident rugh the acced/plla, y t t he thahi fld where dead bdy of the d w yig o t rsng ie o eceased as ln wth on e h bng fusy ccordi o m s he and the eople psent th him t te relet ti t purb an t the ar faen t th re cou t be ldged very day and i ce to be lod on flwi day Th wit ha f ad th s he s literae, e d pu s tum prn th pr o odged Theeater ac t ss he poce ad c age an * conducted the inquest of the dead body and the inquest report so . prepared also bears his thumb impression and then the body was sent for post mortem examination to Community Health Centre, Pratappur. Plain soil, blood stained soil and dung smeared soil were seized in his presence and the ac’cused/appellanthad informed the poliCe also about killing‘the deceased by causing injury with the help i injuries hr ead leedi proel. Ang t hi, a p re wi a h van me go erted d hat dk had ll in the nigh, e port ld no o on that t am ged the olong . is ness s urther stte at a wa ilt h ha t hi hb imessio in e reot s l. rf, cording o this witne, t li h ome to this vill d L) ,{l w w “manna. 4‘ @ of a piece of wood which later on was seized by the police at his instance. In cross examination also this witness has stated almost the same thing as in the examination in chief. This witness has denied the fact that on the date of incident the deceased and the accused/appeiiant both had consumed liquor and being under its influence the deceased got dashed against the wall and died as a result of the injuries sustained by her on head. Ram Chandra (PW-2) is also the witness to extra judicial confession made by the accused/appellant before him‘: This witness has also stated that when he was sitting in the house of Ram Bhajan (PW-1), accused/appellant came there and informed that as the deceased was not offefing him food, there was some quarrel between them in which he killed her by inflicting injuries with the club and that her dead body was lying in the thrashing field. Suggestions put to this witness regarding the deceased having sustained injuries after being h it against the wall, have been denied by this witness. 'Jairam Rajwade (PW-3) — the witness to inquest (Ex. P—1 and P—2) has , upported the case of the prosecution. Head Constable Basant ~ Gupta (PW-4) is the witness who recorded merg intimation (Ex. P—3) ‘ and FIR (Ex. P-4). Constable Linyus Lakda (PW-5) is the witness who took the dead body of the deceased for post mortem xamination. Harihar Lal (PW—6) is the witness to inquest, memorandum and seizure who has not supported the case of the rosecution and has been declared hostile. However, the said memorandum and seizure have been proved by Ram Bhajan (PW- ). Sub Inspector Kailash Mirre (PW—7) is the investigating officer ho‘has supported the case of the prosecution. Dr. Kapil Dev Paikra (PW-8) is the witness who had performed post mortem examination on the body of the deceased and given his report Ex. P—19. This witness has stated that cause of death is extra dural head injury I which was homicidal in nature. According to this witness, had the prompt medical treatment made available, the deceased could have survived. 59 . in the case in hand conviction ofvthe accused/appellant is ased on the circumstantial evidence i.e. extra judicial confession made by him before the two witnesses namely Ram Bhajan (PW-1) ”q- < s e p 1 w b " $7. and Ram Chandra (PW—2). While dealing with the impact of extra judicial confession in the matter of Mohd. Azad alias Samin v. State of West Bengal, 2009 AIR SCW 752 it has been held by the Apex Court as under: “22. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by he Court. The confession will have to be proved like ny other fact. The value of the evidence as to onfession, like any other evidence, 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 reliability of the Witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would ‘depend on the nature of the circumstances, the ime when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimica/ to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthfu/ 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. After subjecting the‘evidence of the witness to a rigorous test on the touchstone of credibility, the extra judicial-confession can be accepted and can be the basis of a conviction if it passes the test of credibility. " 10. Having thus seen the material collected by the prosecution articularly the evidence of Ram Bhajan (PW—1) and Ram Chandra (PW-2) before whom the accused/appellant had voluntarily _ confessed his guilt of having killed the deceased by causing injury on head with the help of piece of wood, this Court is of the onsidered opinion that the prosecution has proved its case beyond ll reasonable doubts. The defence has not been in a position to elicit anything on the basis of which credibility of the testimony of Ram Bhajan (PW-i) and Ram Chandra (PW—2) can be doubted. ‘ Nothing has been brought on record by the defence that these two I witnesses were even remotely on inimical terms or biased in an manner to the accused/appellant which WOuld have made them to make untruthful statement against him. All these things have rightl t a c t p c a ‘ ‘ y y @ Pg__ een considered by the Court below while recording its finding by the well founded judgment impugned. 11. Having thus viewed the factual background of the case in hand, according to the considered opinion of this Court conviction appears to be an inevitable conclusion. The judgment impugned does not appear to suffer from any illegality or infirmity and accordingly the same needs affirmation. 12. ln the result, the appeal being without merits is liable to be dismissed. It is dismissed as such. Accused/appellant is already in jéN and hence no order regarding his surrender etc. is required to be passed. . / - M,_ ¢ Sdl‘. ‘ 1’rit'll‘kerf‘wak§gizt Ju ge ‘tki v 1 b §