Devendra Kumar Sahu vs State Of Chhattisgarh
2022 Latest Caselaw 4352 Chatt

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                                                                        AFR
              HIGH COURT OF CHHATTISGARH AT BILASPUR
                   Criminal Appeal No. 1033 of 2013


        Devendra Kumar Sahu S/o Murari Lal sahu, Aged
        about 21 years, R/o Village Khargahani, Police
        Station Kota, Civil and Revenue Distt. Bilaspur,
        Chhattisgarh.
                                                          ­­­Appellant

                                    Versus

         State    of     Chhattisgarh,        Police    Station     Kota,
         Distt. Bilaspur, Chhattisgarh.

                                                        ­­­Respondent




        For Appellant :­ Mr. Siddharth Pandey, Advocate
        For State          :­ Mr. Sunil Otwani, Addl. A.G.
                                and Mr. Anmol Sharma, P.L.


              Hon'ble Shri Justice Sanjay K. Agrawal
              Hon'ble Shri Justice Sanjay S. Agrawal
                         Judgment on Board
                             11/07/2022
Sanjay K. Agrawal, J.

1. This criminal appeal under Section 374(2) of CrPC

is directed against the impugned judgment of

conviction and order of sentence dated 07/08/2013

passed in Sessions Trial No. 175/2011 whereby

learned 3rd Additional Session Judge, Bilaspur

has though acquitted the co­accused persons

namely Murarilal Sahu, Yogesh Kumar Sahu and

Narmadabai Sahu from charges punishable under

Sections 302/34 and 304(B)/34 of IPC but has

convicted the appellant herein for offence

punishable under Section 302 of IPC and sentenced

him to life imprisonment and fine of Rs. 1,000/­

and in default of payment of fine further R.I.

for three months.

2. The case of the prosecution, in brief, is that on

25/08/2011 at about 9:30 PM at village Khargahni,

Distt. Bilaspur, the appellant herein along with

three co­accused persons in furtherance of their

common intention murdered Sarojini Sahu with an

axe on the pretext of dowry and thereby,

committed the offence.

3. Further case of the prosecution, in brief, is

that complainant Yogesh Sahu (husband of the

deceased) lodged a report at Police Station Kota

that he works as a 'chowkidar' at Forest

Department and on 25/08/2011 at about 08:00 AM,

he had gone to work and his wife Sarojini Sahu

was at home. At about 11:30 AM, he received a

phone call from his younger brother Rajesh

(though cited witness but not examined by the

prosecution) that their brother Devendra (the

appellant herein) has killed Sarojini Sahu and

blood is oozing out of her neck. Upon asking,

complainant Yogesh Sahu got to know that

appellant had killed his wife Sarojini Sahu by

assaulting her with an axe.

4. On the basis of the said report, FIR was lodged

vide Ex. P/10 and merg intimation was registered

vide Ex. P/11 and the wheels of investigation

started running. Najri naksha was prepared vide

Ex. P/12 and Blood­stained soil as well as plain

soil were seized from the spot vide Ex. P/6 along

with the pieces of bangles worn by the deceased.

The witnesses were summoned vide Ex. P/1 and

thereafter, inquest was conducted vide Ex. P/2

and the dead body of deceased Sarojini Sahu was

sent for postmortem at Community Health Center,

Kota which was conducted by Dr. Sandeep Dwivedi

(P.W.­11)) and the postmortem report has been

filed as Ex. P/9 according to which cause of

death is excessive internal bleeding and nature

of death is homicidal. Pursuant thereof,

memorandum statement of the appellant/accused was

recorded vide Ex. P/5 and recovery of axe along

with the shirt worn by him was made from his

possession. The seized articles were sent for

chemical examination vide Ex. P/19 but no FSL

report has been brought on record. The appellant

herein along with other accused persons namely

Murarilal Sahu (father­in­law), Yogesh Kumar Sahu

(husband) and Narmadabai Sahu (mother­in­law)

were taken into custody. Thereafter, statement of

the witnesses were recorded under Section 161 of

CrPC and after due investigation, the

appellants/accused persons was charge­sheeted for

offence punishable under Section 302/34 and

Section 304B/34 of IPC which was committed to the

Court of Session for hearing and disposal in

accordance with law. The appellants/accused

persons abjured their guilt and entered into

defence.

5. In order to bring home the offence, prosecution

examined as many as 17 witnesses and brought into

record 31 documents. Statement of the accused

persons were recorded under Section 313 of CrPC

wherein they denied guilt, however, they examined

none in their defence but the statements of

Lahura Bai, Bhagwati Sahu, Santosh Kumar Sahu and

Ramsnehi Sahu have been exhibited as D/1 to D/4,

respectively.

6. Learned trial Court, after appreciating the oral

and documentary evidence on record, though

acquitted Murarilal Sahu (father­in­law), Yogesh

Kumar Sahu (husband) and Narmadabai Sahu (mother­

in­law) from the charges levelled against them

but convicted the appellant herein Devendra Kumar

Sahu (brother­in­law) for offence punishable

under Section 302 of IPC, finding the following

two circumstances established :­

(i) that, the appellant has made extra­judicial

confession to Rai Kumar Dhruw (P.W.­4); and

(ii) that, pursuant to the disclosure statement

made by the appellant/accused vide Ex. P/5,

recovery of blood­stained axe has been made from

his possession.

7. Mr. Siddharth Pandey, learned counsel for the

appellant/accused, would submit that the trial

Court has committed grave legal error in

convicting the appellant for the aforesaid

offence particularly when the extra­judicial

confession allegedly made by the appellant before

Rai Kumar Dhruw (P.W.­4) has not been proved in

accordance with law. It is suspicious and

doubtful as the conduct of Rai Kumar Dhruw (P.W.­

4) is not free from doubt as even though the

appellant made extra­judicial confession before

him but he neither reported the incident at the

Police Station nor informed about the incident to

Yogesh Kumar Sahu (husband of the deceased) or

Murarilal Sahu or Narmadabai Sahu, being the

father­in­law and mother­in­law of the deceased

and only informed Rajesh (brother­in­law of

deceased), who though is a cited witness but has

not been examined by the prosecution. Moreover,

it has been stated by Rai Kumar Dhruw (P.W.­4)

that appellant had come to him in a motorcycle

owned by one Munna Tailor, but he has neither

been cited nor been examined, as such, the

statement of Rai Kumar Dhruw (P.W.­4) that

appellant made extra­judicial confession before

him could not have been relied upon by the trial

Court to convict the appellant for the aforesaid

offence. He would rely upon the decision rendered

by the Supreme Court in the matter of Sahadevan

and Another v. State of Tamil Nadu1 which has

further been followed in Kusal Toppo and Another

v. State of Jharkhand2. He would further submit

that the disclosure statement made by the

appellant/accused vide Ex. P/5 is also not

reliable as the appellant herein was not the only

inmate residing at the house where the incident

took place. As evident from the record,

memorandum statement was recorded on 25/08/2011

at 04:30 PM and pursuant thereof, the axe was

1 (2012) 6 SCC 403 2 (2019) 13 SCC 676

recovered at 04:50 PM vide Ex. P/4 and the

appellant was arrested at 07:30 PM, as such, it

has not been proved by the prosecution that the

appellant was the sole person living at that

house and the axe is said to have been seized

from the parchhi (open courtyard) of the house

which is not under the exclusive possession of

the appellant, therefore, in view of the decision

rendered by the Supreme Court in the matter of

Mani v. State of Tamil Nadu3, the recovery of the

axe allegedly made from possession of the

appellant is doubtful and even otherwise,

recovery is a weak kind of evidence and cannot be

wholly relied upon for convicting the accused.

Thus, the impugned judgment recording conviction

of the appellant/accused under Section 302 of IPC

and awarding sentence as mentioned above is

liable to be set aside.

8. Per Contra, Mr. Sunil Otwani, learned Additional

Advocate General on behalf of the

respondent/State, would submit that the extra

judicial confession made by the appellant before

Rai Kumar Dhruw (P.W.­4) inspires confidence as

Rai Kumar Dhruw (P.W.­4) informed about the

incident to Rajesh (brother of appellant and

3 (2009) 17 SCC 273

Yogesh Kumar Sahu) and he did not lodge a report

at the Police Station simply out of fear, as

such, his testimony cannot be discredited simply

because he did not report the matter to the

Police Station and even otherwise, Rajesh being

the brother of Yogesh Kumar Sahu has rightly not

been examined and Munna Tailor has rightly not

been cited as prosecution witness. He would

further submit that pursuant to the disclosure

statement (Ex. P/4), recovery of blood stained

axe and and his shirt containing blood like spots

have been made from the possession of the

appellant, but merely because FSL report has not

been brought on record, recovery cannot be

doubted, as such, the instant appeal deserves to

be dismissed.

9. We have heard learned counsel for the parties,

considered their rival submissions made herein­

above and went through the records with utmost

circumspection.

10. The first question for consideration would be

whether the death of deceased Sarojinibai was

homicidal in nature ?

11. Learned trial Court has recorded an affirmative

finding with regard to this question on the basis

of postmortem report (Ex. P/9) wherein Dr.

Sandeep Dwivedi (P.W.­11), who has conducted

postmortem, has clearly stated that the cause of

death is excessive internal bleeding owing to

injuries suffered by the deceased on her neck

and the nature of death is said to be homicidal.

After hearing learned counsel for the parties and

after going through the postmortem report (Ex.

P/9) as well as going through the evidence of

Dr. Sandeep Dwivedi (P.W.­11), we are satisfied

that learned trial Court has rightly held the

death of Sarojinibai to be homicidal in nature.

We hereby affirm the said finding recorded by the

trial Court.

12. The next question for consideration is whether

the trial Court is justified in holding that the

appellant herein is the author of the crime and

thereby, convicting him for offence under Section

302 of IPC whereas the other three accused

persons have already been acquitted ?

13. As noticed herein­above, in order to convict the

appellant, learned trial Court has relied upon

two broad circumstances to connect the appellant

with the offence in question. Firstly, that the

appellant has made extra judicial confession to

Rai Kumar Dhruw (P.W.­4) and secondly, that

pursuant to the memorandum statement (Ex. P/5),

the axe used in the offence has been recovered

vide Ex. P/4. We will consider both the

circumstances one by one.

Extra judicial confession

14. It is a settled principle of criminal

jurisprudence that extra judicial confession is a

weak piece of evidence. Wherever the Court, upon

due appreciation of the entire prosecution

evidence, intends to base a conviction on an

extra judicial confession, it must ensure that

the same inspires confidence and is corroborated

by other prosecution evidence. If, however, the

extra judicial confession suffers from material

discrepancies or inherent improbabilities and

does not appear to be cogent as per the

prosecution version, it may be difficult for the

Court to base a conviction on such a confession.

In such circumstances, the Court would be fully

justified in ruling such evidence out of

consideration. [See : Sahadevan (supra)]

15. In the matter of Sahadevan (supra), Their

Lordships of the Supreme Court further considered

the earlier decisions including Balwinder Singh

v. State of Punjab4 and pertinently laid down the

principle in paragraphs 15.1, 15.8 and 16 as

under :­

"15.1. In Balwinder Singh (supra) this Court stated the principle that: (SCC p. 265, para

10) "10. An extra­judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extra­judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance."

15.8. Extra­judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambigous and should clearly convey that the accused is the perpetrator of the crime. The extra­judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra­judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it. (Ref. Sk. Yusuf v. State of W.B.5 and Pancho v. State of Haryana6.) The principles

16. Upon a proper analysis of the abovereferred judgments of this Court, it will be appropriate to state the principles which would make an extra­judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These percepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra­judicial confession alleged to have been made by the accused :

(i) The extra­judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.

4 1995 Supp (4) SCC 259 5 (2011) 11 SCC 754 6 (2011) 10 SCC 165

(ii) It should be made voluntarily and should be truthful.

(iii) It should inspire confidence.

(iv) An extra­judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.

(v) For an extra­judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

(vi) Such statement essentially has to be proved like any other fact and in accordance with law."

16. Reverting to the facts of the present case

in light of the principles of law laid down by

Their Lordships of the Supreme Court in the

aforesaid cases including Sahadevan (supra), it

is quite vivid that in the instant case the

appellant is said to have made extra judicial

confession to Rai Kumar Dhruw (P.W.­4), who in

his statement before the Court, has only stated

that appellant came to his house in a motorcycle

and said that he is not feeling well and is going

to Kota and thereafter, Rai Kumar Dhruw (P.W.­4)

accompanied him and after reaching near Kota

Police Station, the appellant informed him that

he has murdered his sister­in­law Sarojini Sahu

and is going to Police Station to lodge a report

and thereafter, the appellant requested him to go

back to the village and return the motorcycle to

Munna Tailor. Rai Kumar Dhruw (P.W.­4)

immediately came back to the village and informed

Rajesh Sahu (brother of appellant and Yogesh

Kumar Sahu) about the incident and returned the

motorcycle to Munna Tailor. Learned trial Court

has relied upon the said extra­judicial

confession but a careful perusal of the statement

of Rai Kumar Dhruw (P.W.­4) would show that this

witness has not disclosed prior acquaintance with

Rajesh Sahu. Moreover, he did not even inform

about the incident to Yogesh Kumar Sahu (husband

of the deceased) or to Murari Lal Sahu (father­

in­law of deceased) or Narmada bai Sahu (mother­

in­law of deceased) and though Rajesh Sahu has

been cited as witness but for the reasons best

known to the prosecution, he has not been

examined before the Court. Furthermore, as stated

by Rai Kumar Dhruw (P.W.­4), the appellant came

to his house by a motorcycle owned by one Munna

Tailor of the village and after reaching Kota, he

told Rai Kumar Dhruw that he is going to lodge

FIR at police station and asked him to return the

motorcycle to Munna Tailor, but admittedly,

appellant did not lodge any FIR and it was lodged

by complainant Yogesh Kumar Sahu (husband of the

deceased) vide Ex. P/10 and even otherwise, Munna

Tailor has neither been cited nor been examined

before the Court to prove that appellant indeed

took his motorcycle and thereafter it was

returned to him by Rai Kumar Dhruw (P.W.­4). As

such, in our considered opinion, the extra

judicial confession allegedly made by the

appellant to Rai Kumar Dhruv (P.W.­4) does not

inspire confidence and does not appear to be

truthful as it suffers from material

discrepancies and inherent improbability. Since

the prosecution has miserably failed to prove the

extra judicial confession, we are unable to hold

that it was voluntarily made by the appellant to

Rai Kumar Dhruw (P.W.­4) or that it is truthful

as it is surrounded by suspicious circumstances

and its credibility is doubtful, therefore, we

reject the testimony of Rai Kumar Dhruw (P.W.­4)

stating that appellant has made extra judicial

confession before him.

Recovery of blood­stained axe

17. The next circumstance that has been found proved

by the trial Court against the appellant herein

is the recovery of blood­stained axe made from

his possession vide Ex. P/4 pursuant to his

memorandum statement (Ex. P/5).

18. The memorandum statement of the appellant/accused

is said to have been recorded on 25/08/2011 at

04:30 PM vide Ex. P/5 and recovery of the axe has

been made from the open courtyard of the house

(parchhi) vide Ex. P/4 and thereafter, the

appellant has been arrested at about 07:30 PM

vide P/8. Admittedly, other accused persons

namely Murari Lal Sahu (father­in­law of

deceased), Yogesh Kumar Sahu (husband of

deceased) as well as Narmadabai Sahu (mother­in­

law of deceased) were also staying at the house

and it has not been proved that appellant was in

exclusive possession of the said house during

that period and that too, of the parchhi from

where seizure of blood­stained axe has been made.

19. The Supreme Court in the matter of Mani (supra),

considering the nature, scope and applicability

of Section 27 of the Indian Evidence Act, 1872,

has held that discovery is a weak kind of

evidence and cannot be wholly relied upon and has

observed the following in paragraph 26 of the

judgment :­

"26. The discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the

prosecution case. We have already held that the prosecution has failed to prove that the house where alleged bloodstains were found belonged exclusively or was possessed exclusively by the appellant, we have further pointed out that the discovery was absolutely farcical. There is one other very relevant factor ignored by both the courts that the prosecution never made any attempts to prove that the clothes belonged to the appellants. There is literally no evidence to suggest anything to that effect. Therefore, even if we accept the discovery, it does not take us anywhere near the crime. Both the courts below have ignored this very important aspect. Once these two important circumstances are disbelieved, there is nothing which would remain to support the prosecution theory."

20. In the instant case, as noticed herein­above,

pursuant to the memorandum statement of the

appellant/accused vide Ex. P/5, recovery of blood

stained axe has been made vide Ex. P/4 from the

parchhi of the house owned and possessed by not

only the appellant but three other family members

and one Rajesh Sahu who has not been examined

before the Court. As such, prosecution has failed

to establish that the corner of the parchhi from

where recovery has been made was in exclusive

possession of the appellant. Even otherwise, the

memorandum statement was recorded on 12/08/2011

at about 04:30 PM and thereafter appellant was

not the only inmate living in the house in

question from where the blood­stained axe has

been recovered. Apart from this, the seized

articles including the blood­stained axe as well

as appellant's blood stained shirt were sent for

chemical examination on 10/10/2011 vide Ex. P/19

but the FSL report has not been brought on record

to establish that human blood was found on the

axe and the shirt of the appellant. Moreover, the

police officer, conducting investigation, even

made a query to Dr. Sandeep Dwivedi (P.W.­11) as

to whether the blood like substance found on the

axe is human blood or not and whether the

injuries sustained by the deceased could have

been caused by the seized axe. Dr. Sandeep

Dwivedi (P.W.­11) has opined in paragraph 13 of

his statement that in absence of FSL report, it

cannot be established that the blood like

substance found on the axe is human blood and

that if the seized axe is used as an attacking

weapon, it can cause the injuries which were

suffered by the deceased.

21. In the matter of State of Rajasthan v. Wakteng7,

the Supreme Court has considered the issue where

the sword recovered was not sent for FSL and no

report was exhibited and even no question in that

7 (2007) 14 SCC 550

regard was put to the accused and held as

under :­

"17. So far as recovery of the sword is concerned, the same was not sent for any examination by the Forensic Science Laboratory and the report if any was not exhibited and even no question in that regard was put to the accused while he was examined under Section 313 of the Code.

18. Above being the position, the High Court has rightly held that the prosecution has failed to establish the accusations against the respondent. The appeal is sans merit and is dismissed."

22. As sought from the aforesaid discussion, we are

of the opinion that firstly, the extra judicial

confession allegedly made by the

appellant/accused to Rai Kumar Dhruw (P.W.­4) is

not truthful and is surrounded by suspicious

circumstances and thus suffers from material

discrepancies and inherent improbability,

therefore, it would be unsafe to rely upon it to

convict the appellant. Secondly, recovery of

blood­stained axe made pursuant to the memorandum

statement of the appellant/accused has also not

been proved by the prosecution as it could not be

proved that the house rather the parchhi from

where the axe has been seized was in exclusive

possession of the appellant. Thirdly, the FSL

report proving the blood stains on the axe as

well as the shirt worn by the appellant was

though sought, but prosecution has also failed to

bring that on record. As such, we are of the

considered opinion that it is a case of

circumstantial evidence and prosecution has

utterly and miserably failed in establishing the

chain of circumstances to hold that appellant is

the author of the crime in question. In that view

of the matter, we have no option except to set

aside the impguned judgment recording conviction

of the appellant for offence punishable under

Section 302 of IPC and awarding sentence as

mentioned above. The appellant is acquitted of

the charge punishable under Section 302 of IPC

and he be released forthwith, if not required in

any other case.

23. Accordingly, the criminal appeal is allowed.

                Sd/­                                   Sd/­
     (Sanjay K. Agrawal)                     (Sanjay S. Agrawal)
            Judge                                      Judge


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