JUDGMENT : Sanjay K. Agrawal, J Appellant-accused was tried by the 2nd Additional Sessions Judge, Baloda Bazar, in Sessions Trial No.166/2001 (State of Chhattisgarh v. Maheshwar Kalar) for commission of offence punishable under Section 302 of the IPC and he was sentenced to undergo imprisonment for life and pay fine of Rs.500/-, in default of payment of fine to further undergo rigorous imprisonment of six months. 2. Feeling aggrieved & dissatisfied with the judgment of conviction and order of sentence recorded by the Additional Sessions Judge, appellant-accused has preferred this appeal before this Court under Section 374(2) of the CrPC. 3. The prosecution case as unfolded during the course of trial is as under: - 3.1 In the intervening night of 26/27-1-2001 at Village Sail, Police Station Kasdol at about 1.20 in the night, in the house of Ganesh Ram Jaiswal, his wife Guruwari Bai was murdered by strangulation. 3.2 Ganesh Ram Jaiswal (husband of the deceased) is a intellectually challenged person whereas his wife Gurubari Bai (since deceased) was also intellectually challenged woman but she was slightly stronger than her husband in understanding. Since both were intellectually challenged persons, therefore, to cultivate their agricultural land and out of earning from said land, maintain them and for that purpose they had kept in their house the present appellant, who is close relative of Ganesh Ram Jaiswal but Appellant-accused wanted the land of Ganesh Ram Jaiswal to be transferred to his name and in which he suspected that deceased Gurubari Bai had made an objection, pursuant to which accused Maheshwar was not maintaining the deceased properly and on account of which on 26.1.2001 she had complained to villagers namely Chowa Jaiswal and others that accused is not maintaining her properly and she was promised by the villagers to take decision on her complaint. In the morning of 27.01.2001, it was revealed that she has been murdered, upon which, Samarudas (PW-15)- Kotwar of the village had gone to the spot and seen the dead body of Guruwari Bai and while he was going to Kasdol Police Station for lodging First Information Report, appellant-accused Maheshwar met him, at that time, Bharat Lal Sahu (PW-5) was also with him and on enquiry, the accused made extra judicial confession to both of them that since Guruwari Bai used to abuse him and objected in getting his name mutated in the revenue records, he has murdered Gurubari Bai and then they have taken accused Maheshwar to Police Station Kasdol and FIR (Ex.P-12) was made by Samaru Das Manikpuri (PW-15) and merg intimation was also recorded vide Ex. P- 13 being merg intimation No.4/2001. Investigation was initiated and the Police got the post mortem conducted vide Ex.P-15 by Dr. Y.K. Sharma (PW-13). 3.3 Offence under Section 302 of the IPC was registered against the accused/appellant. Bangles and clothes were seized from the spot and it were sent for chemical examination and spot map was prepared. 3.4 The jurisdictional police after usual investigation, charge-sheeted the accused/appellant for the offence under Section 302 of the Indian Penal Code. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 15 witnesses and brought on record documents Exs.P-1 to P-18A. 3.5 The accused/appellant abjured the guilt and entered into defence and has not examined any witness but filed two documents i.e. Exs. D- 1 & D-2 in support of his defence. 3.6 The accused appellant in his statement recorded under Section 313 of the CrPC, denied the incriminating evidence appearing against him and pleaded to be innocent. 3.7 Learned Additional Sessions Judge on appraisal of entire evidence on record held accused/appellant guilty of charge and convicted the accused under Section 302 of the IPC and sentenced him as mentioned in foregoing paragraphs. 4. Mrs. Indira Tripathi, learned counsel appearing for the appellant, would submit that the prosecution has failed to prove the offence under Section 302 IPC beyond reasonable doubt as there is no evidence on record to implicate the appellant in the offence under Section 302 of the Indian Penal Code. 4. Mrs. Indira Tripathi, learned counsel appearing for the appellant, would submit that the prosecution has failed to prove the offence under Section 302 IPC beyond reasonable doubt as there is no evidence on record to implicate the appellant in the offence under Section 302 of the Indian Penal Code. She would further submit that Bharatlal Sahu (PW-5) & Samaru Das (PW-15), before whom the extra judicial confession was made by the accused/appellant, were declared hostile and they have not supported the case of the prosecution and merely on the basis of suspicion, he has been convicted. She would further submit that the testimony of prosecution witnesses, who have been declared hostile, cannot be relied upon to convict the appellant and, therefore, judgment of conviction is liable to be set aside and he be acquitted of the charge levelled against him. 5. On the other hand, Mrs. Smita Ghai, learned Panel Lawyer appearing on behalf of the State/respondent, would support the impugned judgment and submit that the prosecution has led sufficient evidence to bring home the offence and as such, the judgment of conviction recorded and sentence awarded does not warrant any interference by this Court, therefore, the appeal deserves to be dismissed. 6. The question for consideration in this appeal is, firstly, whether the death of deceased Guruwari Bai was homicidal in nature and secondly, whether she has been murdered by the present appellant. 7. The deceased had suffered number of anti-mortem injuries in the neck region, which are said to have been caused during attempt of throttling and cause of death is asphyxia due to throttling and, thus, death of deceased Gurubari Bai was homicidal in nature. Post-mortem report is Ex.P-10. 8. Dr. Y.K. Sharma (PW-13), who has conducted post mortem on the person of the deceased, has been examined and he has clearly opined that injuries sustained by the deceased can be caused in the neck region during attempt of throttling. Post-mortem report is Ex.P-10. 8. Dr. Y.K. Sharma (PW-13), who has conducted post mortem on the person of the deceased, has been examined and he has clearly opined that injuries sustained by the deceased can be caused in the neck region during attempt of throttling. He has noticed twenty one injuries at the time of post mortem on the body of the deceased:- ^^2- 'ko foPNsnu djus ij ik;k fd Vsfd;k fjax vkSj FkjkbZM dk Vyst VwVk gqvk ik;k FkkA vkWa[k ds mij ekFks ij tks pksV ds fu'kku Fks mlds peM+h ds uhps [kwu tek gqvk FkkA Ldy cksu esa dksbZ pksV ugha FkkA czsu ftt ,oa czsu esa datslu ik;k FkkA QsQM+s datsLVsM Fks] gzn; dk nkfguk d{k jDr Hkjk Fkk vkSj cka;k d{k [kkyh FkkA eqag ds vanj esa xky esa nksuksa vksj dh peM+h esa ykfyek FkhA vek'k; esa fcuk ipk Hkkstu ik;k FkkA ;d`r] Iykgk] xqnkZ datsLVsM ik;k FkkA 3- e`rdk ds 'kjhj ij vk;h pksVsa e`R;q ls iwoZ xyk nckus ls ,oe~ la?k"kZ ls vk ldrh gSaA tks iksLVekVZe djus ds 36 ?kaVs ds Hkhrj vkrh FkhA esjs erkuqlkj e`rdk dh e`R;q] mldk xyk nckus ls ne ?kqVus ls gqbZ FkhA tks fd yxHkx iksLVekVZe ds 36 ?kaVs ds Hkhrj dh FkhA e`R;q ekuo o/k izd`fr dh FkhA esjs }kjk nh xbZ 'ko ijh{k.k fjiksVZ iz0ih0&10 gS ftlds , ls , Hkkx ij esjk gLrk{kj gSA^^ 9. The aforesaid statement of doctor conducting the postmortem and the nature of injuries suffered by deceased would clearly establish that death of Guruwari Bai was homicidal in nature. 10. Ganesh Ram Jaiswal (husband of the deceased) at the time of incident was intellectually challenged person whereas deceased Gurubari Bai had weak vision but she used to speak clearly and, therefore, they kept the appellant-accused, who was close relative with them for maintaining them and for cultivating their agricultural land which they had. This fact is established by the prosecution. 11. Motilal (PW-6) has stated in his evidence that prior to the incident, Guruwari Bai had stated to him that accused is not maintaining her properly. Babulal (PW-1) - father of deceased had stated that she had complained to the Panchas and other villagers that the appellant is not maintaining her, on which, she was promised by village panchas to resolve the dispute shortly. Babulal (PW-1) - father of deceased had stated that she had complained to the Panchas and other villagers that the appellant is not maintaining her, on which, she was promised by village panchas to resolve the dispute shortly. He also stated in his evidence that on 20.4.2000, another FIR No.72 was lodged against the appellant for offences punishable under Sections 294, 323/34 of the Indian Penal Code alleging that appellant-accused has assaulted the deceased father and her mother and abused them by using filthy language. Chowaram (PW-4) has also made similar statement. 12. Samaru Das (PW-15) has stated his evidence that he had made a report of murder of deceased Guruwari Bai vide Ex.P-12 and Merg Intimation vide Ex. P-13 and he has signed the said document. He further stated in his evidence that the appellant had admitted before him that he has strangulated Guruwari Bai as she used to abuse him and he and Bharatlal Sahu (PW-5) had lodged the report in the police Station Kasdol. While in the Court Bharatlal Sahu (PW-5) had not supported the case of the prosecution and both Bharatlal Sahu (PW-5) & Samaru Das (PW-15) have been declared hostile, and they were subjected to cross-examination. Samaru Das (PW-15) in cross examination has stated that he met the accused in the Police Station, he has made report to the police, pursuant to which, FIR (Ex.P-12) was recorded and merg intimation (Ex.P-13) was recorded in which Samaru Das (PW-15) has signed and, as such, Samaru Das (PW-15) though declared hostile but has clearly accepted in the cross examination about lodging of FIR (Ex. P-12) and Merg Intimation (Ex.P-13), and the fact that accused/appellant has made extra judicial confession before him. 13. At this stage, it would be appropriate to notice the principle of law as to whether testimony of hostile witness can be relied upon. It is settled law that corroborated part of evidence of hostile witness regarding commission of offence is admissible. It was so held by the Supreme Court in the matter of Mrinal Das v. State of Tripura (2011) 9 SCC 479 : (2011) 3 SCC (Cri) 810. Relevant paragraph of the said report states as under: - (SCC pp.505- 506, para 67) "67. It is settled law that corroborated part of evidence of hostile witness regarding commission of offence is admissible. Relevant paragraph of the said report states as under: - (SCC pp.505- 506, para 67) "67. It is settled law that corroborated part of evidence of hostile witness regarding commission of offence is admissible. The fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to cross-examine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The court should be slow to act on the testimony of such a witness, normally, it should look for corroboration with other witnesses. Merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. To make it clear that evidence of hostile witness can be relied upon at least up to the extent, he supported the case of prosecution. The evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution." 14. The law laid down in Mrinal Das (supra) was reiterated and followed by the Supreme Court in the matter of Sathya Narayanan v. State represented by Inspector of Police (2012) 12 SCC 627 . In the matter of Bhajju alias Karan Singh v. State of Madhya Pradesh (2012) 4 SCC 327 , Their Lordships of the Supreme Court have held that testimony of hostile witness is admissible to use the examination-in-chief as well as the cross-examination of the said witness insofar as it supports the case of the prosecution. Paragraph 35 of the report states as follows: - "35. Regarding the admissibility and probative value of the testimony of hostile witness, normally, when a witness deposes contrary to the stand of the prosecution and his own statement recorded under Section 161 CrPC, the prosecutor, with the permission of the court, can pray to the court for declaring that witness hostile and for granting leave to cross-examine the said witness. Regarding the admissibility and probative value of the testimony of hostile witness, normally, when a witness deposes contrary to the stand of the prosecution and his own statement recorded under Section 161 CrPC, the prosecutor, with the permission of the court, can pray to the court for declaring that witness hostile and for granting leave to cross-examine the said witness. If such a permission is granted by the court then the witness is subjected to cross-examination by the prosecutor as well as an opportunity is provided to the defence to cross-examine such witnesses, if he so desires. In other words, there is a limited examination-in-chief, cross-examination by the prosecutor and cross examination by the counsel for the accused. It is admissible to use the examination-in-chief as well as the cross-examination of the said witness insofar as it supports the case of the prosecution." 15. Recently, in the matter of Devraj v. State of Chhattisgarh AIR 2016 SC 3498 , their Lordships of the Supreme Court have considered question of reliability of the evidence of hostile witness and held as under:- "The evidence of a witness who has been declared hostile can be relied if there are some other material on the basis of which said evidence can be corroborated. Moreso, that part of evidence of a witness as contained in examination-in-chief, which remains unshaken even after cross-examination, is fully reliable even though the witness has been declared hostile." 16. The post of Samaru Das (PW-15) was village Kotwar on the date of occurrence. The post of Kotwar is a civil post and the Kotwar is holder of the Civil Post under Section 230 of the Chhattisgarh Land Revenue Code, 1959. 17. Rule 8 of Rules made under Section 230 of the M.P. Land Revenue Code describes the duties of Kotwar, which include the following:- "8. The post of Kotwar is a civil post and the Kotwar is holder of the Civil Post under Section 230 of the Chhattisgarh Land Revenue Code, 1959. 17. Rule 8 of Rules made under Section 230 of the M.P. Land Revenue Code describes the duties of Kotwar, which include the following:- "8. It shall be the duty of the Kotwar- (i) to arrest and convey to the police or any other competent authority Police Station or outpost of the circle, any person who in his view, commits a non-bailable and cognisable offence or who has been proclaimed as an absconder; (ii) to assist in the private defence of person or property in accordance with Section 97 of the Indian Penal Code, 1860(XIV of 1860), and in the arrest and conveyance to the Police Station, or outpost of the circle of any person liable to arrest under this Section or under Section 59 of the Code of Criminal Procedure, 1898 (V of 1898); (iii) the commission of, or intention to commit any act which, if committed would be an offence punishable under any of the following Sections of the Indian Penal Code, 1860 (XIV of 1860), namely:- 302, 304, 382, 393, 394, 395, 396, 398, 399, 402, 435, 436, 449, 450, 457, 458, 459 and 460. (iv) to report immediately to the Patel of the Village or Gram Panchayat or Gram Sabha entrusted with the duties of Patel under Section 229 read with Section 232 of the Madhya Pradesh Land Revenue Code, 1959 (No.20 of 1959), (if present in the village at the time) and then to the office-in-charge of the Police Station or out post of the circle, the occurrence of any cases of plague, cholera, small-pox, cerebro-spinal meningitis, chickenpox, diphtheria, dysentery, influenza, leprosy, measles, pneumonia, epidemic relapsing fever, typhoid or enteric fever, typhus fever, tuberculosis of lungs, yellow fever or lathyrism; 18. It is a duty of the Kotwar to intimate the commission of offence under Section 302 IPC to the concerned police station by virtue of provisions contained in Code of 1959 and Samaru Das (PW-15) made a report to Police Station for commission of offence under Section 302 IPC in discharging of his statutory duty. 19. In light of the principles enunciated herein-above, we shall now examine the testimonies of above-stated eyewitness i.e.Samaru Das (PW-15), who is village Kotwar. 19. In light of the principles enunciated herein-above, we shall now examine the testimonies of above-stated eyewitness i.e.Samaru Das (PW-15), who is village Kotwar. It is his statutory duty to report to the police station of the commission of offence. He has been cross examined by the public prosecutor after declaring him hostile and in which he has clearly admitted that he met Appellant-Accused - Maheshwar, thereafter he had lodged the FIR (PW-12) & merg intimation (Ex.P-13) and, as such, statement of Samaru Das (PW-15) though has been declared hostile but he supports in the examination version of the prosecution in part, which can be relied upon, and it has rightly been relied upon by the learned Additional Sessions Judge that the accused made extra judicial confession to him on 27.01.2001 that he had murdered Gurwari Bai by strangulation. 20. While dealing with the evidentiary value of extra-judicial confession made by the accused, the Supreme Court in the matter of Baldev Singh v. State of Punjab 2009 AIR SCW 3730 has held that extra-judicial confession is generally a 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 alias Samin v. State of West Bengal 2009 AIR SCW 752 has held that if extra-judicial confession made voluntarily and truly in a fit state of mind then it can be relied upon and confession will have to be proved 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. Thus, it is explicitly clear that extra judicial confession can be accepted and can be the basis of conviction if it passes the test of credibility as held by the Supreme Court in the above stated judgment. It has already been held by us in foregoing paragraphs that the appellant made extra judicial confession before Samaru Das (PW-15) and thereafter FIR (Ex.P-12) & Merg Intimation (Ex.P-13) was lodged by the Kotwar and though he has been declared hostile and he was subjected to cross examination by the prosecution, it is established that the appellant made extra judicial confession to Samaru Das (PW-15), who is also Kotwar holding civil post and on the basis of which FIR (Ex.P-12) and Merg Intimation (Ex.P-13) have been recorded. Apart from that, motive is also established that the appellant wanted to grab the land of the deceased and her husband to which deceased objected and opposed as the deceased was unable to maintain herself and her husband was at that time also intellectually challenged person and they had agricultural land and in order to grab the land, the appellant strangulated deceased Guruwari Bai, which has been proved beyond reasonable doubt by the prosecution by leading legal evidence. 23. 23. Thus, it is clearly established beyond reasonable doubt that in the intervening night of 26/27.01.2001 accused has strangulated deceased Gurubari Bai and caused his death, which is homicidal in nature, and as such, the learned Additional Sessions Judge has rightly analysed the evidence oral and documentary available on record and came to the conclusion that accused appellant has caused murder of deceased Guruwari Bai. 24. As a fallout and consequence of the aforesaid discussion, the Criminal Appeal being devoid of merit is liable to be and is hereby dismissed. He is on bail. His bail bond stands cancelled. He shall surrender immediately before the trial Court for serving out the remaining sentence.