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2012 DIGILAW 267 (CHH)

KRISHNA KUMAR PARASTE v. STATE OF C. G.

2012-10-09

RADHE SHYAM SHARMA, SUNIL KUMAR SINHA

body2012
JUDGMENT Sunil Kumar Sinha, J. 1. This appeal is directed against the judgment dated 20th of January, 2009, passed in Sessions Trial No. 26/2007 by the Additional Sessions Judge, Pendra Road, District- Bilaspur (C.G.). 2. By the impugned judgment, the appellant has been convicted and sentenced in the following manner with a direction to run the sentences concurrently. Conviction Sentences U/S 302 of IPC Imprisonment for life and to pay fine of Rs.500 with default sentence of R.I. for 1 year. U/S 449 of IPC Imprisonment for life and to pay fine of Rs.500 with default sentence of R.I. for 1 year. 3. The facts, briefly stated, are as under:- The 5 accused persons (A-1 to A-5) were prosecuted for the offence under Sections 148, 449, 506-11 & 302/149 IPC. They allegedly committed murder of Dukli and his wife-Chamelia Bai. The 6th accused namely Bhaiyalal was a juvenile. It is stated at Bar that he was tried and acquitted by the concerned Juvenile Board. The case of the prosecution is that on 03.12.2006, at about 5:00 p.m., the 6 accused persons formed an unlawful assembly, committed rioting with deadly weapons and in furtherance of common object of the said assembly, entered into the house of complainant- Ram Singh (P.W.23) and committed murder of his parents namely- Dukli (father) and Chamelia Bai (mother). Ram Singh (P.W.23 son of the deceased persons) was not present in the house at the time of the incident. He had gone for grazing the cattles. He was informed by the villagers that quarrel is going on in his house. He came to his house and intervened in the quarrel. He witnessed the incident. Ram Singh (P.W.23) lodged F.I.R. (Ex-P-27). The two injured persons (his parents) were sent for their medical examination and were examined by Dr. A.L. Kurram (P.W.12). Their MLC reports are Ex-P-8 and Ex-P-9. Since the injured persons were in critical condition, they were referred to CIMS hospital, Bilaspur, where they died ruing the course of treatment. Information was sent to the police and Merg Intimations (Ex-P-19 & Ex-P-20) were recorded. Investigating Officer, gave notices (Ex-P-21 & Ex-P-22) to the Panchas and prepared inquests (Ex-P-6 & Ex-P-7) on the dead bodies of the deceased persons. The dead bodies were sent for their postmortem. The postmortem examinations were conducted by Dr. Information was sent to the police and Merg Intimations (Ex-P-19 & Ex-P-20) were recorded. Investigating Officer, gave notices (Ex-P-21 & Ex-P-22) to the Panchas and prepared inquests (Ex-P-6 & Ex-P-7) on the dead bodies of the deceased persons. The dead bodies were sent for their postmortem. The postmortem examinations were conducted by Dr. Vijay K. Verma (P.W.22), who found multiple serious injuries on the dead bodies of the deceased persons and opined that the deaths were homicidal in nature. The Postmortem reports are Ex-P-43 and Ex-P-44. In further investigation, the accused persons were taken into custody and their memorandum statements (Ex-P-29, Ex-P-30, Ex-P-31, Ex-P-32 & Ex-P-32-A) were recorded under Section 27 of the Evidence Act, and weapons of offence were seized at their instances. Though, it was contended by the prosecution that the weapons were carrying blood like substances, but FSL report could not be filed. The further case of the prosecution is that the present appellant, Krishna Kumar (A-5) had made extra-judicial confession before Balveer (P.W.5). The learned Sessions Judge held vide para 11 of the judgment that it was not established by the evidence of Ram Singh (P.W.23) that all the accused persons had assaulted the deceased persons. However, the Sessions Judge relied on the testimony of Balveer (P.W.5) and held that appellant (A-5) had made extra-judicial confession before him, therefore, he alone was liable for punishment under the aforesaid Sections of the IPC. Appellant (A-5), thus, was convicted and sentenced as above and the other accused (A-1 to A-4) were acquitted of the charges framed against them. 4. Mr. Yogendra Chaturvedi, learned counsel appearing on behalf of the appellant, has argued that the extra-judicial confession was not established by the evidence of Balveer (P.W.5), therefore, conviction based on the above solitary circumstance of extra-judicial confession cannot be sustained. 5. On the other hand, Mr. N.K. Mehta, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 6. Having heard learned counsel for the parties at length, we have perused the records of the Sessions case. 7. Ram Singh (P.W.23) is son of the deceased persons. He was not present in his house at the time of the incident. He was informed by some villagers that a quarrel was going on in his house. 6. Having heard learned counsel for the parties at length, we have perused the records of the Sessions case. 7. Ram Singh (P.W.23) is son of the deceased persons. He was not present in his house at the time of the incident. He was informed by some villagers that a quarrel was going on in his house. According to his evidence, he did not enter into his house on account of fear of his life. He only saw that the accused persons were coming out of his house. F.I.R. (Ex-P-27) was lodged by Ram Singh (P.W.23). He lodged the F.I.R. as an eye-witness. He mentioned in the F.I.R. that he saw that the accused persons firstly assaulted his father and when his mother came to rescue, she was also assaulted by them. He and one Amrit Lal (P.W. 1) had also tried to intervene at the time of the incident. In his Court version he did not depose that infact he had seen the incident, which according to him occurred in the above manner. He only deposed that he saw that the accused persons were coming out of his house. It is for these reasons, the Sessions Judge has recorded the finding that it was not established by the evidence of Ram Singh (P.W.23) that the accused persons had assaulted the deceased persons. Amrit Lal (P.W.1) has turned hostile and he also did not support the version of Ram Singh (P.W.23). 8. The learned Sessions Judge has based the conviction on extra-judicial confession of appellant (A-5) before Balveer (P.W.5). Balveer (P.W.5) deposed that on the fateful day, the appellant came to him and said that "Dukli aur Dukli Ki Patni - Chameli Bai Ko Jaise Filmi Style Me Marte Hai, Waise Mar Diya". When he further asked, the appellant stated that Dashru has seen everything, the incident had taken place before him, he should ask Dashru. After some time, Ram Singh (P.W.23) also came to him and told that "His parents have been murdered and he is going to Bilaspur". Balveer (P.W.5) in clear words deposed that Ram Singh (P.W.23) did not mention the names of the assailants before him. Balveer (P.W.5) was declared hostile by the prosecution and was allowed to be cross-examined by the Public Prosecutor. Nothing material could be elicited in his cross-examination. Balveer (P.W.5) in clear words deposed that Ram Singh (P.W.23) did not mention the names of the assailants before him. Balveer (P.W.5) was declared hostile by the prosecution and was allowed to be cross-examined by the Public Prosecutor. Nothing material could be elicited in his cross-examination. In cross-examination, he very clearly deposed that Ram Singh (P.W.23) had only stated that his parents have been murdered, but he did not tell the names of the accused persons. He told him to look after his cattles. Balveer (P.W.5) further corrected his version by adding that at that time, parents of Ram Singh (P.W.23) were alive, therefore, Ram Singh (P.W.23) had said that he is taking them for treatment to Bilaspur. In Crocs-examination by the defence, he deposed in the last line of para 5 that the police had not asked him about the incident and he had not given any statement before the police. 9. It has been laid down in many cases that 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 have a 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. 10. In Sk. Yusuf Vs. State of West Bengal AIR 2011 SC 2283 , the Supreme Court held that the extra judicial confession is weak type of evidence. It must be established to be true and made voluntarily in a fit state of mind. The words of witness must be clear, unambiguous and clearly convey that accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility. Reference has been made to State of Rajasthan Vs. Raja Ram (2003) 8 SCC 180 , and Kulvinder Singh & Another Vs. State of Haryana (2011) 5 SCC 258 . The extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility. Reference has been made to State of Rajasthan Vs. Raja Ram (2003) 8 SCC 180 , and Kulvinder Singh & Another Vs. State of Haryana (2011) 5 SCC 258 . 11. In the instant case, the solitary witness of extra-judicial confession has turned hostile. Even if we take his evidence as it is, it only gives an idea that the appellant told him that deceased persons have been murdered in Filmi style. Who committed their murder in Filmi style is not clear from his evidence. That is to say that it is not clear from his evidence that the appellant stated that he himself has committed murder of the deceased persons in Filmi style. This evidence of Balveer (P.W. 5) relating to the alleged extra-judicial confession of the appellant is shaky and is ambiguous. We are of the view that in light of the above inherent infirmities in the evidence of Balveer (P.W. 5), it was not safe to rely on his solitary testimony. Besides the above, his version also demolishes that part of evidence of Ram Singh (P.W.23), in which, he stated that he had seen the accused persons coming out from his house, because Balveer (P.W.5) clearly deposed that Ram Singh (P.W.23) had not told the names of the assailants or accused persons to him. We are of the view that the learned Sessions Judge fell into error by convicting the appellant on the solitary evidence of extra-judicial confession before Balveer (P.W.5). 12. For the foregoing reasons, the appeal is allowed. The conviction and sentences awarded to the appellant under Section 302 and 449 IPC are set aside. The appellant is acquitted of the charges framed against him. It is stated that the appellant is in jail since 07.12.2005. He be released forthwith if not required in any other case. Appeal Allowed.