f-^-Ct. HIGH COURT OFLCHHATTISGARH AT BILASPUR D.B.: Hon'ble Shri JusticeJ\P. Sharma and Ho^n'ble Shri Justice Prashant Kumar Mishra Criminal Appeal No.1057Lof 2004 Nanhi Ram versus State of Chhattisgarh JUDGMENT FOR CONSiDERATSON Sd/- Prashant Kumar Mishra Judgp Hon'ble Shri T.P. Sharma, J.- Sd/- °> °^-f ^ SAanna / Judge yf3 Post for | r^03-2011 Sd/- JUDGE fy-03-2011 I <S3- JSF-- HIGH COURT OF CHHATTISGAftH AT BILASPUR D.B^: Hon'ble Shri Justice T.P. Sharma and hlon'ble Shri Justice Prashant Kumar Mishra Criminal Appeal No.1057 of 2004 Appellant Respondent versus Nanhi Ram State of Chhattisgarh Present: Shri Abhay Tiwari, counsel for the appellant. Shri Sanjeev Kumar Agrawal, Panel State/respondent. Lawyer for the Criminal Appealynder Section 374(2) ofthe Code ofCriminal Procedure JUDGMENT (Delivered on l ^ March, 2011) <Per<Prasfiant 'Kymar'M.islira, ]:. This appeal has been preferred by the appellanVaccused challenging his conviction under Section 302 of the Indian Penal Code and sentence of imprisonment for life together with fine of Rs.200/-. ; 2 . Case of the prosecution, in short, as reflected in the merg intimation report (Ex.P-7) and F.1.R. (Ex.P-8), is that in the intervening night of 10/11-4-2004, at about 2 A.M., Surjobai came to the house of Banshiram Sidar (first informant) and informed him that she heard alarm raised by Kiri:iram Sidar, father of the accused Nanhi Ram, who was shouting Bachao-Bachao. On this information, 'he (Banshiram Sidar) along with Ghasiya, Dukalu, Gambhuinya, Bhagatram and Sankirtan Sidar went to the house of Nanhi Ram and witnessed that Kirtiram was resting on his cot and Nanhi Ram was standing in the courtyard (Aangan) and his mother Mankunwar (deceased) was lying dead in the courtyard. She had injuries on her neck and both the shoulders and blood was oozing out from the injuries. On being asked as to what happened, Nanhi Ram said before the abovenamed persons that he has murdered Mankunwar. At this time, the accused/appellant Nanhi Ram was keeping a Tangi in his hand. Banshiram along with other persons went away and because of midnight and for want of conveyance, report could not be lodged immediately. He lodged the report (Ex.P-8) on 11-4-2004 at about 10 A.M. with the Police Station Tamnar. It has also been mentioned in the F.1.R. that 4 days prior to the incident the accused had chased his wife to commit her murder and thereafter his wife along with children went to her parental house. 3. Dead body of Mankunwar was sent for autopsy on 11-4-2004 itself and in the autopsy report (Ex.P-5), it was reported that the death was homicidal in nature. In course of investigation, the accused submitted memorandum (Ex.P-13) and on the basis ofthis memorandum, the weapon of offence, i.e., the Tang/ was seized from the appellant vide Ex.P-10. After recording statement of witnesses, the prosecution submitted charge-sheet and the matter was committed to the Sessions Court for appellant's trial for committing offence under Section 302 of the Indian Penal Code. In course of trial, the prosecution examined Gambhuinya PW-1, \Jogender PW-2, Anupdas PW-3, Diliram PW-4, Dr. B.S.Badai PW-5, Banshiram PW-6, Kirtiram PW-7, Lalit Kumar PW-8, Dukalu PW-9, Milan PW-10, Ghasiya PW-11, Ghasiram PW-12 and Ravindra Singh Maravi PW-13. 4. On the basis of evidence adduced by the prosecution, the trial Court found that the death of the deceased was homicidal in nature, however, the learned trial Court has reporded the finding that recording of memorandum on the statement of the accused is not proved and as such recovery of the weapon at the instance of the accused is also not proved. Similarly, the learned trial Judge also held that although from the statement of PW-5 Dr. B.S.Badai, it is proved that the injuries on the person of the deceased can be caused by the seized Tangi, however, in the absence of report of Forensic Science Laboratory, Raipur, it is not proved that the seized weapon was used for committing the offence. The learned trial Judge recorded the finding of the appellant's guilt and has convicted him on the basis of evidence of PW-6 Banshiram, PW-9 Dukalu, PW-11 Ghasiya and PW-12 Ghasiram (Kotwar). These witnesses have stated that the accused had confessed before them that he has committed murder of his mother Mankunwar. 5. Learned counsel appearing for the appellant has argued that the finding recorded by the trial Court is absolutely perverse and the appellant's conviction is based on evidence which do not prove his guilt. He would further argue that the statements of prosecution witnesses are full of material contradictions and omissions and thus the conviction and sentence imposed by the learned trial Court deserves to be set aside. 4 6. This Court has perused statements of PW-6 Banshiram, PW-9 Dukalu, PW-11 Ghasiya and PW-12 Ghasiram. PW-6 Banshiram is the first informant. In his examination-in-chief, he has stated that the appellant had confessed before him in the presence of Dukalu, Gam, Sankirtan, Udaynath and Motilal that he has committed murder of his mother and the appellant was having a Tangi in his hand. Though this witness has been declared hostile, however, in his cross-examination by the defence, he has stated that he had seen Nanhi Ram with a Tangi in his hand. 7. PW-7 Kirtiram is the father of the appellant. In his examination-in-chief, he has supported the prosecution case, however, in the cross-examination, he has stated that he has not witnessed the accused committing murder of his wife Mankunwar. PW-9 Dukalu, PW-11 Ghasiya and PW-12 Ghasiram have supported the prosecution case in their examination-in-chief, more particularly, the prosecution case to the effect that the appellant had made confession about committing murder of the deceased, however, in the cross-examination, they have denied to have made such statements to the police during investigation recorded under Section 161 ofthe Code of Criminal Procedure. 8. In Pyare Lal Bhargava vs. The State of Rajasthan,AIR 1963 SC 1094, the Hon'ble Supreme Court has laid down the principle as to when a conviction can be based on confessional statement or retracted confession. Paragraph 7 of the report reads thus: ilt.i .":1:^ ;::^ "7. The second argument also has no merits. A retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and was voluntarily made. But it has been held that a court shall not base a conviction on such a confession without corroboration. It is not a ruleof law, but is only a rule of prudence. It cannot even be laid down as an inflexible rule of practice or prudence that under no circumstances such a conviction can be made without corroboration, for a court may, in a particular case, be convinced of the absolute truth ofa confession and preparedto act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars. The High Court having regard to the said principles looked for corroboration and found it in the evidence of Bishan Swaroop, P.W.7, and the entry in the Dak Book, Ex PA. 4, and acceptedthe confession in view of the said pieces of corroboration. The finding is one of fact and there is no permissible ground for disturbing it in this appeal." 9. In Gagan Kanojia and another vs. State of Punjab, (2006) 13 SCC 516, the Hon'ble Supreme Court has reiterated the principle about admissibility of extra-judicial confession for recording conviction of an accused. Paragraphs 23, 24 and 25 of the judgment read thus: "23. Extra-judicial confession, as is well known, can form the basis of a conviction. By way of abundant caution, however, the court may look for some \ corroboration. Extra-judicial confession cannot ipso - facto be termed to be tainted. An extra-judicial Li. .^' ^ confession, if made voluntarily and proved can be relied upon by the courts. [See Sukhwant Singh v. State, (2003) 8 SCC 90.) 24. Extra-judicial confession, however, purported to have been made by Appellant 1 before this father, which was recorded in his statement before the Magistrate under Section 164 of the Code of Criminal Procedure, was not admissible in evidence. (See State of Delhi v. Shri Ram Lohia, AIR 1960 SC 490 para 13 and Geo/ge v. State of Kerala, (1998) 4 -SCC 605 para 36.) He was not examined by the prosecution. He might not have been examined for good reasons. At one point of time, he might have been sure about the involvement of his son, but at a later stage, he would have thought not to depose against him. 25. In a case of this nature, it was also not expected that the family members of Appellant 1 would depose against him, as regards recovery of clothes which were recovered from his own house. The prosecution furthermore has brought on record the recovery of trousers and shirt of the accused. The colour of the said garments is not in dispute. The fact that the same were not belonging to him has also not been canvassed before us. Place of kidnapping has also not been disputed before us. Apart from PW 4, PW 11 is also a witness to the said fact." 10. When the evidence in the present case is examined in the light of the principle laid down by the Hon'ble Supreme Court in the abovementioned cases, it is to be seen that PW-6 Banshiram (the first informant) has supported the case of the prosecution in his examination-in-chief. He has admitted to have lodged the F.1.R. Though he has not supported the entire statement made by him to m 6 cfc^ the police yet, when cross-examined by the prosecution after declaring him hostile on the question of recovery of the weapon, he again supports the case of the prosecution. In paragraph 5 of the cross-examination, he has denied the suggestion made by the defence that he has not seen Nanhi Ram with a Tangi in his hand. Further, in paragraph 8, he made a statement at his ownthat Nanhi Ram has committed murder of his mother. The appellant's father Kirtiram has been examined as PW-7, who has fully supported the case of prosecution in his examination-in-chief though in the cross- examination he says that he has not witnessed the appellant having committed murder of Mankunwar. Similarly, PW-11 Ghasiya and PW-12 Ghasiram have also supported the case of prosecution with regard to extra-judicial confession, in their examination-in-chief. Thus, taking into consideration the entirety of the evidence, it appears that when alarm was raised, the abovementioned witnesses went to the house of the appellant, where they witnessed that the appellant is standing in the courtyard with a Tangi in his hand and stated before them that he has killed his mother. This statement was made by the appellant voluntarily without any pressure and thus the same deserves to be accepted. 11. Though the appellant has denied to have made any statement in the presence of witnesses, however, apart from making general denial, he has not stated any reason as to why these witnesses have deposed against him. In answer to question No.22, when he was asked as to the statement made by PW-11 Ghasiya and PW-12 'Ghasiram about the extra-judicial confession, the appellant stated ^\ s.. *' ^ Gopal that he is not aware of the statement. This reply by the appellant does not amount to denial ofthe statement made by him before PW- 11 Ghasiya and PW-12 Ghasiram. 12. In view ofthe above discussion, this Court is unable to accept the argument that the evidence of extra-judicial confession is shaky or it lacks corroboration or that it is untrustworthy. The finding of conviction recorded by the trial Court, thus, does not warrant interference. 13. Consequently, the conviction and sentence imposed on the appellant is confirmed. The criminal appeal fails and is hereby dismissed. Sd/- T.P. Sharma Judge Sd/- prashant.KumarMishra Judge Lt.