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2009 DIGILAW 333 (CHH)

Jagar Nath v. State of Chhattisgarh

2009-11-27

R.L.JHANWAR, T.P.SHARMA

body2009
JUDGMENT The judgment of the Court was delivered by T.P.Sharma, J. 1. By this appeal, the appellant has challenged the legality and propriety of the judgment of conviction and order of sentence dated 11.6.2007 passed by the Additional Sessions Judge, Katghora, in Sessions Case No.56/2004 whereby & whereunder learned Additional Sessions Judge after holding the accused/appellant guilty for commission of offence of murder of his mother and father namely, Janki Bai and Dayaram punishable under Section 302 of the Indian Penal Code, sentenced him to undergo imprisonment for life and to pay a fine of Rs.5000/-, in default of payment of fine to further undergo rigorous imprisonment for 2 years on each count. 2. Judgment & order are challenged on the ground that without there being any iota of evidence, the Additional Sessions Judge has convicted and sentenced the appellant as aforementioned and thereby committed illegality. 3. Case of the prosecution in brief is that deceased Janki Bai and Dayaram mother and father of the appellant were going to village Ghosda from village Kotikharra along with other children on fateful day of 24.6.2004 at about 8-9 a.m. While they were on way, the accused assaulted his mother Janki Bai and father Dayaram by axe and killed them. Jai Singh (PW-2) 6 years aged son of the appellant was present at the spot. After committing murder of Janki Bai and Dayaram, the accused went to the house of Raisram (PW-7), brother-in-law of the appellant and made extra-judicial confession of murder of his mother and father to him. When Raisram asked about the dead body, the appellant took him and other persons to the place where dead body of the deceased Janki Bai and Dayaram were lying. Raisram also detained the appellant. Merg intimation was recorded vide Ex.P/12. The F.I.R. was lodged by Raisram vide Ex.P/13 at police outpost Korbi and on the basis of Ex.P/13, numberi F.I.R. was registered. Investigating officer proceeded for the spot where after summoning the witnesses vide Exs.P/1 and P/2, inquest over the dead body of Janki Bai and Dayaram were prepared vide Exs.P/3 and P/4. Dead body of Dayaram and Janki Bai were sent for autopsy vide Exs.P/14 and P/15. The appellant was taken into custody and on the basis of disclosure statement of the appellant vide Ex.P/5, axe was recovered at the instance of the appellant vide Ex.P/6. Dead body of Dayaram and Janki Bai were sent for autopsy vide Exs.P/14 and P/15. The appellant was taken into custody and on the basis of disclosure statement of the appellant vide Ex.P/5, axe was recovered at the instance of the appellant vide Ex.P/6. Plain soil and blood stained soil were recovered vide Exs.P/7 and P/8. The accused was arrested vide Ex.P/9. Spot map was prepared by investigating officer vide Ex.P/9. Spot map was also prepared by Patwari vide Ex.P/11 (A). 4. Autopsy of the deceased Dayaram was conducted by Dr.Umesh Kumar Markam (PW-8) vide Ex.P/14A and found one lacerated wound over right parietal region and one lacerated wound over right side of the neck and cut injury over Trachea. Cause of death was shock as a result of cardio respiratory arrest. Autopsy of deceased Janki Bai was also conducted by Dr.Umesh Kumar Markam (PW-8) vide Ex.P/15A and found incised wound over neck effecting Trachea and over vital part. Cause of death was cardio respiratory arrest as a result of surgical injury. Seized articles were sent for chemical examination where presence of blood over axe recovered from the appellant and soil recovered from the spot were confirmed vide Ex.P/18. 5. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `the Code') and after completion of investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Katghora, who in turn committed the case to the Court of the Sessions Judge, Korba from where Additional Sessions Judge, Katghora received the same on transfer for trial. 6. In order to prove the guilt of the appellant/accused, the prosecution examined as many as 8 witnesses. Statement of the accused/ appellant was also recorded under Section 313 of the Code where he denied the circumstances appearing against him and innocence and false implication is pleaded. 7. Learned Additional Sessions Judge after affording opportunity of hearing to the parties, convicted and sentenced the accused/appellant as aforementioned. 8. We have heard Mr.Anil Pandey, counsel for the appellant and Mr.Sandeep Yadav, Deputy Government Advocate for the State/respondent and perused the judgment impugned and record of the Court below. 9. 7. Learned Additional Sessions Judge after affording opportunity of hearing to the parties, convicted and sentenced the accused/appellant as aforementioned. 8. We have heard Mr.Anil Pandey, counsel for the appellant and Mr.Sandeep Yadav, Deputy Government Advocate for the State/respondent and perused the judgment impugned and record of the Court below. 9. Learned counsel appearing for the appellant submitted that the present case was based on sole testimony of the alleged eyewitness Jai Singh (PW-2), son of the appellant, but Jai Singh has not supported the case of the prosecution. Death of mother and father of the appellant is not disputed. Learned counsel further submitted that statement of Raisram (PW-7) is not worthy of reliance in absence of any corroborative evidence, and it cannot form the basis of conviction. 10. On the other hand, learned State counsel supported the judgment impugned and submitted that the present case is based on extra-judicial confession of the appellant given to Raisram (PW-7) who has lodged the report and disclosure of fact of blood stained axe recovered at the instance of the appellant which are sufficient for warranting conviction against the appellant for murder of his mother and father. Learned counsel further submitted that this is a case of double murder and the prosecution has proved its case beyond all shadow of doubt by adducing credible evidence. 11. In order to appreciate the contentions of the parties, we have examined the evidence available on record. Substantially, conviction is based on extra-judicial confession and evidence of disclosure of fact. 12. In the present case, homicidal death as a result of injury of Janki Bai and Dayaram, mother and father of the appellant, has not been substantially disputed by the appellant, otherwise it is also established by Tilkuwar (PW- 1), Jai Singh (PW-2), Itwar Sai (PW-3), Jeevan Lal (PW-4), Kunji Lal (PW-5), S.P.Singh Baghel (PW-6), Raisram (PW-7) and Dr.Umesh Kumar Markam (PW-8), merg intimation (Ex.P/12), F.I.R. (Ex.P/13), inquest (Exs.P/3 and P/4) and autopsy report (Exs.P/14A and P/15A). Dr.Umesh Kumar Markam (PW-8) has specifically deposed that the injury found over the body of Dayaram was incised wound over his neck and cut injury over Trachea and fatal injury over the neck of Janki Bai which are sufficient for causing death. The injury found over the body of Dayaram and Janki Bai are sufficient for causing death and the deaths were homicidal in nature. 13. The injury found over the body of Dayaram and Janki Bai are sufficient for causing death and the deaths were homicidal in nature. 13. As regards the complicity of the appellant/accused in crime in question, the case is based on extra-judicial confession of the appellant, circumstantial evidence and disclosure statement of facts. Extra-judicial confession is generally of weak type of evidence. No conviction ordinarily can be based solely thereupon unless same is corroborated in material particulars. 14. In order to connect the appellant in the crime in question, the prosecution has examined eyewitness Jai Singh (PW-2), 6 years aged child witness who is son of the appellant. He has admitted in his evidence relating to death of his grandfather and grandmother, but has not deposed anything that who has inflicted injuries over the body of deceased Janki Bai and Dayaram. Prosecution has declared him hostile. In his cross-examination, the prosecution has not been able to elicit anything to connect the appellant in the crime in question. 15. Tilkuwar (PW-1), wife of Raisram (PW-7) sister of wife of the appellant has deposed in her evidence that she has informed by Jai Singh (PW-2) that the appellant has killed his mother and father. When she and one Butra went to see mother and father of the appellant, she saw the dead body of the deceased Janki Bai and Dayaram. Statement of this witness is based on the statement of Jai Singh, but Jai Singh has not deposed anything relating to cause of death of his grandmother and grandfather, therefore, in absence of any connecting evidence relating to cause of death, statement of Tilkuwar is of no use. But she has admitted in para-6 of her evidence that after commission of the offence, the accused came to her house. Raisram (PW-7) has deposed in his evidence that the appellant came to him in his house and made extra- judicial confession that he has killed his mother and father "ekrk firk dks Vkaxh ls ikl fn;k ,dkV fn;k+". He has also deposed that when the accused made extra-judicial confession, he suspected that if the appellant will go out then he may also kill his wife. Then he along with Rajesh and Barelal caught hold the appellant and asked him to show where dead bodies of his mother and father were lying. He has also deposed that when the accused made extra-judicial confession, he suspected that if the appellant will go out then he may also kill his wife. Then he along with Rajesh and Barelal caught hold the appellant and asked him to show where dead bodies of his mother and father were lying. The accused took them to the spot where dead bodies were lying and thereafter he went to the police station and lodged the F.I.R.(Exs.P/12 and P/13). In his detail cross-examination, he has admitted in para-7 of his cross-examination that place of incident was half kilometer away from his house. Son and daughters of the appellant also came to his house, but at that time, he was not present. They intimated the incident to his wife. In para- 12 of his cross-examination, he has also deposed that injuries of the deceased were informed by the accused. He has denied the suggestion that he is having enmity with the appellant and on the ground of enmity, he has falsely implicated the appellant in the alleged commission of offence. 16. S.P.Singh Baghel (PW-6), investigating officer, has supported the investigation and deposed that the accused has made disclosure statement of axe vide Ex.P/5 before witnesses and at the instance of the accused, axe was recovered from shrub vide Ex.P/6. Kunji Lal (PW-5) witness of disclosure statement has not supported Exs.P/5 and P/6. S.P.Singh Baghel (PW-6) has denied the suggestion in para-20 of his cross- examination that the accused has not made disclosure statement and has not recovered axe at the instance of the accused. 17. The present case is solely based on extra-judicial confession made by the appellant to Raisram (PW-7), brother- in-law of husband of sister of his wife. According to the case of the prosecution, Jai Singh (PW-2) son of the appellant was eyewitness but he has not supported the case of the prosecution. The prosecution has declared him hostile. He has admitted in para-4 of his evidence that he along with his father i.e. the accused, his younger sister and grandmother and grandfather were going to village Ghosda where his mother was residing. According to the case of the prosecution, mother and father of the accused died as a result of injuries while they were going to village Ghosda along with the accused. According to the case of the prosecution, mother and father of the accused died as a result of injuries while they were going to village Ghosda along with the accused. Jai Singh has not supported the factum of assault made by the accused but has supported the case of the prosecution up to the extent that during the course of journey the offence was committed and the accused was present along with him and his grandmother and grandfather. 18. According to the case of the prosecution, initially Jai Singh (PW-2), son of the appellant, had seen the incident and was present at the time of incident but in his evidence in the Court he has not supported the case of the prosecution and the prosecution has declared him hostile. In his cross- examination he has not admitted that he has seen the incident but his deposition reveals that at the time of incident he along with his sister, father i.e. appellant and deceased were going to village Ghosra where his mother was residing. He has denied the suggestion that his father has assaulted his grandmother and grandfather but he has specifically deposed that his father i.e. appellant was present with them. According to the case of the prosecution, the deceased Janki Bai and Dayaram were going to village Ghosra and the appellant was also with them. The appellant has not offered any explanation that how the incident occurred and how his father and mother died, even he has not lodged any report. 19. As regards the extra-judicial confession is concerned, Raisram (PW-7) brother-in-law of the appellant (husband of wife's sister of the appellant) has specifically deposed that the appellant came to him and made extra-judicial confession that he has cut his mother and father and killed while they were going to another ward where his wife was residing. Defence has cross-examined this witness at length. In para-8 of his cross-examination, he has admitted that son of the appellant informed about the incident to his wife because at that time he was not present in the house. He has also admitted that he went to the spot along with the accused and caught hold him. In para 12 of his cross-examination, he has also deposed that he came to know from the accused that injuries found over the deceased persons were caused by axe. He has also admitted that he went to the spot along with the accused and caught hold him. In para 12 of his cross-examination, he has also deposed that he came to know from the accused that injuries found over the deceased persons were caused by axe. He has denied the suggestion that he is telling lie on the ground of enmity, though Jai Singh (PW-2) son of the appellant has not supported the case of the prosecution but Tilkunwar (PW-1), sister of mother of witness Jai Singh (PW- 2) has specifically deposed that Jai Singh has told her that the appellant has caused fatal injuries to his grandmother and grandfather. Itwar Sai (PW-3) has deposed that he came to know about the incident from Tilkunwar (PW-1). 20. While dealing with the evidentiary value of extra- judicial confession made under Section 24 of the Evidence Act, the Apex Court in the matter of Baldev Singh v. State of Punjab1 has held that extra-judicial confession is generally of weak type of evidence. No conviction ordinarily can be based solely thereupon unless same is corroborated in material particulars. 21. While dealing with the same question, the Apex Court in the matter of Mohd. Azad @ Samin v. State of West Bengal2 has held that if extra-judicial confession made voluntarily 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 a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, 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 time when the confession was made and the credibility of the witnesses who speak to such a confession. 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 time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon the 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 inimical 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 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. 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 conviction if it passes the test of credibility" 22. The Apex Court in the matter of Shiva Karam Payaswami Tewar v. State of Maharashtra3 has held that statement may be oral or written, the admission of guilt would amount to a confession whether it is communicated to another or not. 23. While dealing with the same question, the Apex Court in the matter of State of Punjab v. Harjagdev Singh4 has held that every inducement, threat or promise does not vitiate a confession. Normally extra-judicial confession is a weak type of evidence and shall not be relied upon without further corroboration from other sources. 24. Though the independent witness Kunjilal (PW-5) has not supported the evidence of memorandum and seizure (Exs.P/5 and P/6), but S.P.Singh Baghel (PW-6) has specifically disposed that the accused made disclosure statement of facts of Ex.P/5 and at his instance, axe was recovered from shrub vide Ex.P/6. He has denied the suggestion in para 20 of his cross- examination that the accused has not made disclosure statement and has not recovered the axe. He has denied the suggestion in para 20 of his cross- examination that the accused has not made disclosure statement and has not recovered the axe. Axe was found with blood vide FSL report Ex.P/18, though the prosecution has not proved blood group and whether the blood was human or not, but the case of the prosecution is not based only on disclosure of blood stained axe and presence of blood upon axe, therefore, recovery of blood stained axe is also one of the adverse circumstance against the accused/appellant. 25. Tilkunwar (PW-1) close relative of the appellant and deceased has deposed that immediately after the incident son of the appellant narrated the story. Raisram (PW-7) husband of Tilkunwar and brother-in-law of the appellant has deposed that the accused came to him and made extra-judicial confession. Evidence of Raisram relating to extra-judicial confession of the accused is unchallenged. He also asked the accused to show the dead bodies where they were lying, then the accused took them to the spot. This evidence of Raisram (PW-7) shows that the accused was going with his mother and father to village Ghosra. During the course of journey, mother and father of the appellant died as a result of injuries. The incident was informed by son of the appellant to Tilkunwar (PW-1). The accused himself has made extra- judicial confession to Raisram (PW-7) as a consequent of the same, he along with other persons caught hold the accused with a view to save another incident of causing death of the wife of the appellant, by the accused. The accused took Raisram and others to the place where dead bodies of the deceased Janki Bai and Dayaram were lying. Recovery of blood stained axe at the instance of the appellant. These facts are corroborative piece of evidence. Admittedly, the appellant was going to his mother and father who died as a result of fatal injuries during the course of journey. The appellant has not offered any explanation that how they died and where he left his mother and father during the course of journey before their deaths. On the other hand, the appellant immediately went to the house of his close relative Raisram (PW-7) brother-in-law and made extra-judicial confession and also took them to the spot where dead bodies of his mother and father were lying. On the other hand, the appellant immediately went to the house of his close relative Raisram (PW-7) brother-in-law and made extra-judicial confession and also took them to the spot where dead bodies of his mother and father were lying. This is not the case in which the appellant came to know about homicidal death of his parents through some other sources or he came to know the place where dead bodies of his mother and father were lying. Travelling of the appellant with his mother and father, reaching of the appellant to the house of Raisram (PW-7), making extra- judicial confession and taking them to show the spot are so closely connected and otherwise also sufficient for drawing inference that the appellant is the person who has caused homicidal death of his father and mother. 26. As held by the Apex Court in the matter of Baldev Singh (supra), extra- judicial confession is a weak type of evidence and no conviction ordinarily can be based solely thereupon unless same is corroborated in material particulars. 27. In the present case, the evidence of extra-judicial confession is supported by the aforesaid other material particulars and passes to a rigorous test on the touchstone of credibility. Extra-judicial confession made by the appellant corroborated by material particulars is safe to rely can be the basis of conviction. 28. As regards the motive is concerned, it can be inferred on the basis of nature of injuries, part of the body where injuries were found and the manner in which it was inflicted. The fatal injuries over the neck of both the deceased were found and cause of deaths due to cardio respiratory arrest. Cause of fatal injury over the neck shows the intention of causing homicidal death amounting murder. 29. After appreciating the evidence available on record, learned Additional Sessions Judge has convicted and sentenced the appellant as aforementioned. The evidence adduced on behalf of the prosecution relating to extra-judicial confession and other corroborating circumstances inspire confidence and trustworthy. The conviction of the appellant is based on the aforesaid evidence and the same is sustainable under the law. 30. On close scrutiny of the evidence available on record, we are of the considered view that judgment impugned does not suffer from any illegality or infirmity. The appeal being devoid of merit is liable to be dismissed and is hereby dismissed.