Chattisgarh High Court
Parasram vs State Of Chhattisgarh on 13 December, 2021
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.1123 of 2013
Judgment reserved on: 30.11.2021
Judgment delivered on:13.12.2021
Parasram S/o Buddhuram Nishad, Aged about 32 years,
Resident of Village - Matekheda, P.S. Gendatola,
DistrictRajnandgaon, Civil and Revenue District
Rajnandgaon (Chhattisgarh)
Appellant
(In Jail)
Versus
State of Chhattisgarh Through Police Station Gendatola,
DistrictRajnandgaon (CG)
Respondent
For Appellant: Mr.Prakash Tiwari, Advocate
For Respondent/State: Mr.Sudeep Verma, Dy.G.A.
Hon'ble Shri Justice Sanjay K. Agrawal and
Hon'ble Shri Justice Arvind Singh Chandel
C.A.V. Judgment
Sanjay K. Agrawal, J.
1. This criminal appeal under Section 374(2) of the CrPC
is directed against the judgment of conviction recorded
for offence under Section 302 of the IPC and sentence
awarded i.e. imprisonment for life and fine of ₹3,000,
in default of payment of fine to further undergo
rigorous imprisonment for one year by the Sessions
Judge, Rajnandgaon vide impugned judgment dated
28.9.2012 in Sessions Trial No.80/2011.
2. The case of the prosecution is that on 15.8.2011 at 6
p.m. at evening at village Matekheda, Police Station
Gendatola, the appellant assaulted his father Buddhuram
(since deceased) by axe and committed his murder, which
is punishable under Section 302 of the IPC. It is
further case of the prosecution that said Buddhuram had
two sons namely Pasasram, appellant herein and one
Tikaram (PW1). Deceased Buddhuram had partitioned his
house between him and his two sons appellantParasram &
Tikaram (PW1) and each of them were staying in their
partitioned portion using the courtyard in front of
their rooms, but the appellant was using the courtyard
held by deceased Buddhuram, which he was objecting and
advised the appellant herein to open his exit door
separately for his use and not to use his courtyard,
for which meeting was convened in the village and the
appellant agreed to open separate exit door from his
portion of house, but ultimately he did not do that and
in the same evening, he abused and assaulted his father
Buddhuram by axe, by which Buddhuram suffered injuries
and died. It is also the case of the prosecution that
on the date of incident, the deceased second son
Tikaram (PW1) and his wife Puniya Bai (PW2) both had
gone to village Gendatola and when they were returning
back, at that time, the accused met them and made
extrajudicial confession that he has assaulted his
father by axe. When Tikaram (PW1) and Puniya Bai (PW
2) returned back, they saw that Buddhuram was lying
dead in the field adjoining to their house. Thereafter,
on 16.8.2011 Tikaram (PW1) lodged merg intimation vide
Ex.P1 and FIR vide Ex.P2. The police reached to the
spot and prepared inquest of dead body of deceased
Budhhuram vide Ex.P3. Dead body of deceased Buddhuram
was sent for postmortem to Community Health Center,
Chhuria, where Dr.M.K.Bhuarya (PW12) conducted
postmortem and submitted his report vide Ex.P14.
Thereafter the accused was arrested and on his
memorandum statement Ex.P9, axe was recovered from the
appellant vide Ex.P12. Clothes of the appellant i.e.
baniyan and towel were sized vide Ex.P10. Seized
articles were sent for chemical examination vide Ex.P
19 and report is Ex.P20 and according to which, human
blood was found in seized axe and baniyan. The
appellant was chargesheeted in the Court of Judicial
Magistrate First Class, Rajnandgaon, who in turn,
committed the case to the Court of Session, Rajnandgaon
for trial in accordance with law. The appellant /
accused abjured the guilt and entered into defence.
3. In order to prove the prosecution case, the prosecution
examined as many as 16 witnesses and exhibited 21
documents Exs.P1 to P21. Statement of the
accused/appellant under Section 313 of the CrPC was
recorded, in which he denied guilt. However, the
accused has examined three documents Exs.D1 to D3 in
his defence.
4. The trial Court upon appreciation of oral and
documentary evidence available on record, by its
judgment dated 28.9.2012, held the appellant guilty for
offence under Section 302 of the IPC finding the motive
established for said offence and he has made extra
judicial confession to his brother Tikaram (PW1) &
Puniya Bai (PW2) and from the accused, one axe
(article 'A') was seized in which human blood was found
and injuries suffered by the deceased could have been
caused by axe and accordingly, proceeded to convict the
appellant for the aforesaid offence and sentenced him
as aforementioned.
5. Mr.Prakash Tiwari, learned counsel for the appellant,
would submit that the prosecution has failed to bring
home the offence under Section 302 of the IPC beyond
reasonable doubt as the prosecution star witnesses
Tikaram (PW1), Puniya Bai (PW2), Jamin Bai (PW3) and
Garib Ram (PW4) have turned hostile and they have not
supported the prosecution case. He would further submit
that extrajudicial confession is a weak piece of
evidence, which is not admissible in evidence as Puniya
Bai (PW2) before whom the appellant has made extra
judicial confession has not made statement before the
Court and has failed to prove extrajudicial
confession. He would also submit that though in axe
(article 'A') blood was found, but for want of
serologist report, it cannot be held that it was human
blood and even blood found in axe was the blood of
deceased Buddhuram, as such, the judgment of conviction
recorded and sentence awarded deserve to be quashed.
6. On the other hand, Mr.Sudeep Verma, learned counsel for
the respondent / State, would submit that though Puniya
Bai (PW2) has not made any statement with regard to
extrajudicial confession, but in view of proviso to
Section 162(1) of the CrPC, extrajudicial confession
is admissible in evidence and it has rightly been
relied upon by the trial Court. He would rely upon the
judgment of the Supreme Court in the matter of Bhagwan
Dass v. State (NCT of Delhi) 1 and submit that statement
of extrajudicial confession made before the police by
Tikaram is admissible in evidence and it has rightly
relied upon by the trial Court and as such, the appeal
deserves to be dismissed. He would also rely upon the
judgment of the Supreme Court in the matter of Balwan
Singh v. State of Chhattisgarh and another2.
7. We have heard the learned appearing for the parties,
considered their rival submissions made hereinabove and
also went through the records with utmost
circumspection.
8. The first question for consideration would be, whether
death of deceased Buddhuram was homicidal in nature,
which the trial Court has returned the finding in
affirmative.
9. Dr.M.K.Bhuarya (PW12) has examined the dead body of
the deceased and submitted his report Ex.P14, in which
he has clearly opined that the deceased died on account
1 (2011) 6 SCC 396
2 (2019) 7 SCC 781
of excessive bleeding and death was homicidal in nature
and it can be caused by axe (article 'A') seized as per
memorandum statement of the appellant herein.
10. After hearing learned counsel appearing for the parties
and after going through the records, we are of the
considered opinion that the finding recorded by the
learned trial Court that death of Buddhuram was
homicidal in nature is the finding of fact based on
evidence available on record, which is neither perverse
nor contrary to record.
11. Now, the question is, whether extrajudicial confession
made by the appellant to Tikaram (PW1) vide Ex.P5 and
Puniya Bai (PW2) vide Ex.P6 is admissible in evidence
in view of proviso to Section 162(1) of the CrPC.
12. Tikaram (PW1) and Puniya Bai (PW2) in their
statements before the police under Section 161 of the
CrPC vide Exs.P5 and P6 have stated that the accused
has made extrajudicial confession to them by saying
that he has caused murder of his father Buddhuram, but
when they appeared before the Court, they turned
hostile. Leading questions were asked to them. While
answering leading questions, Tikaram (PW1) and Puniya
Bai (PW2) both have clearly refuted of such extra
judicial confession made by the accused to them
[Tikaram (PW1) and Puniya Bai (PW2)], though Tikaram
(PW1) and Puniya Bai (PW2) have not supported the
fact of extrajudicial confession made to them by the
accused, which they have made before the police while
making statements under Section 161 of the CrPC, yet
the trial Court has accepted the fact of extrajudicial
confession and proceeded to rely upon as an
incriminating evidence against the appellant / accused.
The statement recorded during investigation is not a
substantive piece of evidence and it can only be used
for contradicting the maker. True, it is that the
statement made to the police is not admissible in
evidence in view of Section 162(1) of the CrPC. Since
both the star witnesses i.e. Tikaram (PW1) and Puniya
Bai (PW2) have not supported the case of the
prosecution and did not make statement before the Court
that any kind of extrajudicial confession was made by
the accused to them that he has murdered his father, we
are of the considered opinion, it would not be safe to
rely upon extrajudicial confession as extrajudicial
confession is a weak piece of evidence, particularly
Tikaram (PW1) and Puniya Bai (PW2) to whom extra
judicial confession is said to have made have not
supported the fact of extrajudicial confession being
made to them before the Court and turned hostile. Even
leading questions having been asked to Tikaram (PW1)
and Puniya Bai (PW2), they have clearly refuted the
fact of extrajudicial confession made by the accused
to them, as such, a plea of extrajudicial judicial
confession set up by the prosecution and found proved
by the learned trial Court is unsustainable in law and
alleged extrajudicial confession cannot be used as an
incriminating evidence against the accused / appellant.
13. The Supreme Court in the matter of State of Rajasthan
v. Raja Ram3 has held that an extrajudicial confession,
if voluntary and true and made in a fit state of mind,
can be relied upon by the court. It was observed as
under:
"19. An extrajudicial 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 extrajudicial
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 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 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.
After subjecting the evidence of the witness to
a rigorous test on the touchstone of
credibility, the extrajudicial confession can
be accepted and can be the basis of a
conviction if it passes the test of
credibility."
14. Now the next circumstance that the trial Court has
found proved and which has also been made basis for
conviction of the appellant is that baniyan (Ex.P10)
3 (2003) 8 SCC 180
and axe (Ex.P12) were recovered from the possession of
the appellant, on which blood was found. True, it is
that pursuant to memorandum statement of the appellant
(Ex.P9), baniyan was seized vide Ex.P10 and axe was
seized vide Ex.P12, which were sent for chemical
examination to the State Forensic Laboratory vide
Ex.P19 and vide report dated 9.4.2012 (Ex.P20) it has
been reported that in baniyan and axe, blood was found.
It was further sent to the Serologist & Chemical
Examiner, Govt. of India, Kolkatta16 vide letter dated
9.4.2012, but no report is available in record to
connect the appellant that blood found in baniyan and
axe was human blood and that of deceased Buddhuram.
15. At this stage, pertinent decision of the Supreme Court
on this point in the matter of Balwan Singh (supra) may
be noticed herein, in which the Supreme Court has
summarized the law on this point after taking into the
decision of the Supreme Court (Constitution Bench) in
the matter of Raghav Prapanna Tripathi v. State of
U.P.4. In Raghav Prapanna Tripathi (supra), the
Constitution Bench of the Supreme Court has held that
in case the prosecution needed to prove that the
bloodstains found on the earth or the weapons were of a
human origin and were of the same blood group as that
of the accused.
16. The aforesaid decision of the Supreme Court i.e. Raghav
Prapanna Tripathi (supra) was followed in Balwan Singh
4 AIR 1963 SC 74
(supra) in which it was observed as under:
"23.From the aforementioned discussion, we can
summarise that if the recovery of bloodstained
articles is proved beyond reasonable doubt by the
prosecution, and if the investigation was not
found to be tainted, then it may be sufficient if
the prosecution shows that the blood found on the
articles is of human origin though, even though
the blood group is not proved because of
disintegration of blood. The court will have to
come to the conclusion based on the facts and
circumstances of each case, and there cannot be
any fixed formula that the prosecution has to
prove, or need not prove, that the blood groups
match."
17. Thereafter, the Supreme Court in Balwan Singh (supra)
relying upon the fact that the prosecution has failed
to prove that the blood was of human origin declined to
rely upon the aspect of recovery of the weapons from
the accused therein. It was observed as under:
"24. In the instant case, then, we could have
placed some reliance on the recovery, had the
prosecution at least proved that the blood was of
human origin. As observed supra, while discussing
the evidence of PWs 9 and 16, the prosecution has
tried to concoct the case from stage to stage.
Hence, in the absence of positive material
indicating that the stained blood was of human
origin and of the same blood group as that of the
accused, it would be difficult for the Court to
rely upon the aspect of recovery of the weapons
and tabbal, and such recovery does not help the
case of the prosecution."
18. Reverting to the facts of the present case as the
prosecution has failed to prove that the blood found on
axe (Article 'A') and baniyan (Article 'B2') was of
human blood. These circumstances cannot be held to be
found proved against the accused / appellant, whereas
it has been taken as an adverse circumstance and
incriminating evidence by the trial Court.
19. Furthermore, the trial Court has also held that since
lacerated wounds have been found over the body of
deceased Buddhuram, which can be caused by the
accused / appellant, we are of the considered opinion,
unless it is proved that the appellant has caused
injuries, it cannot be taken as adverse incriminating
circumstance to convict the appellant / accused for
offence under Section 302 of the IPC.
20. Finally, reverting to the facts of the present case,
since motive for the aforesaid offence has not been
proved except there was some dispute on account of
opening of exit door between the appellant and the
deceased and motive has not been established,
particularly the dead body was found in the field near
the house of the appellant and extrajudicial
confession allegedly made by the accused to Tikaram
(PW1) and Puniya Bai (PW2) has not been found to be
established and blood found on axe (Article 'A') and
baniyan (Article 'B2') was not further established to
be human blood by Serologist report and that too of
deceased Buddhuram. As such, it would be unsafe to
convict the appellant for offence under Section 302 of
the IPC and the learned Sessions Judge has committed
legal error in convicting the appellant under Section
302 of the IPC as the prosecution has failed to prove
the offence under Section 302 of the IPC beyond
reasonable doubt.
21. For the foregoing reasons, the impugned judgment dated
28.9.2012 passed by the Sessions Judge, Rajnandgaon in
Sessions Trial No.80/2011 convicting the
accused/appellant for offence under Section 302 of the
IPC and sentencing him for life imprisonment and fine
of ₹3,000/ cannot be sustained and the same is
accordingly set aside. He is acquitted of the charge
under Section 302 of the IPC. He is in custody. He be
released forthwith, unless required in any other case.
22. The criminal appeal is allowed to the extent indicated
hereinabove.
Sd/ Sd/
(Sanjay K. Agrawal) (Arvind Singh Chandel)
Judge Judge
B/
