Kola @ Navpal @ Raju vs State Of Chhattisgarh
2023 Latest Caselaw 298 Chatt

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                                                                 NAFR
         HIGH COURT OF CHHATTISGARH AT BILASPUR
                   Criminal Appeal No. 1097 of 2013


Kola @ Navpal @ Raju, S/o. Dhani Ram Nagvanshi, Aged About 22
Years, R/o. Village Navapara, Lundeg, P.S. Pathalgoan, Distt.
Jashpur, Chhattisgarh
                                                          ---Appellant
                               Versus

State Of Chhattisgarh, Through Police Station- Pathalgaon, Distt.
Jashpur, Chhattisgarh

                                                      ---Respondent


For Appellant           :-   Mr. Vikas Pandey, Advocate
For State-Respondent :-      Mr. Avinash Singh, Panel Lawyer


             Hon'ble Shri Justice Sanjay K. Agrawal
            Hon'ble Shri Justice Radhakishan Agrawal

                         Judgment on Board
                            (16.01.2023)

Sanjay K. Agrawal, J.

1. This criminal appeal preferred by the appellant under Section

374(2) of Cr.P.C. is directed against the impugned judgment

dated 02.09.2013 passed by learned Additional Sessions Judge,

Kunkuri, District Jashpur in Sessions Trial No.61/2012, by which

the appellant herein has been convicted for the offence under

Section 302 of Indian Penal Code and sentenced to

imprisonment for life with fine of Rs.20,000/- and in default of

payment of fine, further 1 year rigorous imprisonment.

2. Case of the prosecution, in short, is that in between 28.06.2012

at 6:00 P.M. to 29.06.2012 till 7:00 A.M. at village Ludeg

Nawapara, the appellant herein and two other accused persons,

his father Dhaniram and Ramesh Kumar (both acquitted)

assaulted the deceased Gohari Ram by 'Dawli' sharp edged

weapon and thereby committed the offence. On the report of

Vinod Kumar Nag (PW-2) that Gohari Ram has been murdered,

a merg was registered vide Ex.P-3 and thereafter the FIR (Ex.P-

2) was registered and Nazrinaksha was prepared vide Ex.P-4.

The panchnama was conducted by Ex.P-14 and thereafter on

the recommendation of panchas (Ex.P-9), the dead body was

subjected to post-mortem vide Ex.P-15, which was proved by

Dr. J. Minj (PW-11) and the post-mortem report is Ex.P-12.

From the spot, spade (Dauli) and bloodstains were seized by

Ex.P-4 and the appellant is said to have given extra judicial

confession to Sonsay (PW-7) on 29.06.2012 and pursuant to

memorandum statement of the appellant (Ex.P-6), the sharp

edged weapon Dauli was seized from the possession of

appellant vide Ex.P-7, which was sent for FSL. After due

investigation, all the accused persons were charge-sheeted for

the aforesaid offences, which was ultimately committed to the

Court of Sessions for trial in accordance with law, in which the

trial Court acquitted two accused persons namely Dhaniram &

Ramesh Kumar; however, convicted the appellant on the basis

of finding that motive as well as seizure of weapon is proved

and the appellant has given extra judicial confession to Sonsay

(PW-7), against which this appeal has been preferred.

3. In order to bring home the offence, prosecution examined as

many as 12 witnesses and exhibited 22 documents and the

appellant-accused in support of his defence has neither

examined any witness nor exhibited any document.

4. The trial Court, after appreciation of oral and documentary

evidence on record, convicted the appellant herein for the

offence under Section 302 of I.P.C. and sentenced as above,

against which the present appeal has been preferred.

5. Mr. Vikas Pandey, learned counsel for the appellant submits that

the conviction of the appellant is based on a weak, shaky and

contradictory evidence of extra judicial confession of the

appellant stated to have been made before Sonsay (PW-7). He

further submits that except this, there is no other incriminating

evidence and the witnesses of memorandum and seizure of

weapon alleged to be used in commission of offence have not

supported the case of the prosecution. He also submits that

according to Sonsay (PW-7) the extra judicial confession was

made on the same date of the incident, however, Sonsay (PW-

7) did not inform anyone regarding extra judicial confession and

his statement under Section 161 Cr.P.C. was recorded after 2

days of the incident i.e. 31.06.2012. He lastly submits that there

is no documentary evidence that there was any previous dispute

between the parties; as such, the conviction of the appellant is

liable to be set aside and the appeal deserves to be allowed.

6. Mr. Avinash Singh, learned State counsel submits that the

prosecution has been able to bring home the offence beyond

reasonable doubt, therefore, conviction of the appellant for the

offence under Section 302 of I.P.C. is well merited and the

appeal deserves to be dismissed. He further submits that the

extra judicial confession of the appellant made before Sonsay

(PW-7) and the history of enmity between father of the appellant

and deceased as stated by Vinod Nag (PW-2) connect the

appellant with the commission of offence and therefore, there is

no illegality in the judgment of conviction and order of sentence.

7. We have heard learned counsel for the parties, considered their

rival submissions made herein-above and went through the

records with utmost circumspection.

8. The first question for consideration would be whether the death

of deceased Gohari Ram was homicidal in nature, which the

learned trial Court has answered in affirmative holding that the

death is homicidal in nature relying upon the post mortem report

Ex.P-12 proved by Dr. J. Minj (PW-11). In our considered

opinion, the said finding recorded by the trial Court is pure and

simple finding of fact based on evidence available on record,

which is neither perverse nor contrary to the record and

therefore, we hereby affirm the said finding.

9. Now, the next question would be, whether the appellant is the

author of the crime, to which the trial Court held that appellant is

the author of the crime and has relied upon following three

circumstances :

(i) Motive of the appellant, (ii) Pursuant to the memorandum

statement (Ex.P-6), Dauli (sharp edged weapon) has been

seized and (iii) the appellant made extra judicial confession to

Sonsay (PW-7) which is reliable.

10. We will take up the aforesaid circumstances one by one :

(i) The trial Court has held that motive for the commission of

offence is established. In para 24 of the judgment, the trial Court

has held that the deceased and the appellant's father both had

property dispute and Dhaniram has taken possession of the

courtyard of Dhaniram and therefore the motive is established.

Surprisingly, Dhaniram has been acquitted by the trial Court and

no finding has been recorded that the appellant had any dispute

with deceased and there is no evidence on record that there

was any dispute of the appellant with deceased; as such, the

finding recorded by the trial Court that motive for commission of

offence is established is not borne out from the record and even

otherwise the motive is a very weak piece of evidence.

(ii) The next circumstance that has been projected by the

prosecution and found proved by the trial Court is recovery of

Dauli pursuant to the memorandum statement of the appellant,

which has been found proved by the trial Court particularly

Sonsay (PW-7) the panch witness. When it was sent for FSL, no

FSL report has been brought on record; as such, it could not be

established that Dauli was used as weapon for murder of the

deceased Gohari Ram.

In case of Balwan Singh v. State of Chhattisgarh &

Anr.1 the Supreme Court has held that if the recovery of

bloodstained articles is proved beyond reasonable doubt by the

prosecution, then it may be sufficient if the prosecution shows

that the blood found on the articles is of human origin, even

though the blood group is not proved because of disintegration

of blood and held 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."

In the instant case, though recovery of the bloodstained

article is proved as per the finding of the trial Court and it was

sent for FSL but no FSL report was brought on record holding

that the Dauli weapon of the offence was stained with human 1 (2019) 7 SCC 781

blood, therefore, it would be difficult for us to rely upon the

aspect of recovery of the weapon and such recovery does not

help the prosecution.

(iii) Now the third and final circumstance is extra judicial

confession which the appellant has made to Sonsay (PW-7).

The date of incident is 28.06.2012 and the appellant is said to

have given his extra judicial confession to Sonsay (PW-7) and

he did not inform anyone about the said incident and ultimately

when the statement was recorded after three days on

31.06.2012 by I.O. Mallika Banarjee (PW-12) then it was

informed about extra judicial confession.

11. 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 v. State of Tamil Nadu2]

2 (2012) 6 SCC 403

12. In the matter of Sahadevan (supra), their Lordships of the

Supreme Court further considered the earlier decisions including

Balwinder Singh v. State of Punjab3 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 extra-judicial 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 extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance."

15.8. Extra-judicial 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 extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial 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. 4 and Pancho v. State of Haryana5.) 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 extra-judicial 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 extra- judicial confession alleged to have been made by the accused :

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

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

(iii) It should inspire confidence.

(iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent

3 1995 Supp (4) SCC 259 4 (2011) 11 SCC 754 5 (2011) 10 SCC 165

circumstances and is further corroborated by other prosecution evidence.

(v) For an extra-judicial 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."

13. 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 Sahadevan (supra), it is quite vivid that in the instant

case the appellant is said to have made extra judicial confession

to Sonsay (P.W.-7), who in his statement before the Court, has

stated that appellant came to his house on 28.06.2021 at 8:00

P.M. night and demanded Rs.100/- and thereafter informed that

he has killed Gohari Ram by Dauli. Sonsay (PW-7) has only

stated that the appellant only informed that he has killed Gohari

Ram by Dauli but Sonsay (PW-7) acting unnaturally did not

inform anyone about the said fact (extra judicial confession) till

his statement under Section 161 Cr.P.C. was recorded by

Mallika Banarjee (PW-12) on 31.06.2012. Apart from this, the

extra judicial confession is a weak piece of evidence and no

other incriminating circumstances on record like motive,

memorandum and motive have not been established and the

recovery of the bloodstained Dauli has not been proved to have

stained with human blood and the exact words used by the

appellant while making extra judicial confession were also not

uttered by Sonsay (PW-7) and therefore it would be unsafe to

rely upon it and to convict the appellant only on the basis of

extra judicial confession, which is a weak piece of evidence.

14. In that view of the matter, we are unable to sustain the

conviction and sentence awarded to the appellant herein.

Accordingly, the conviction and sentence imposed upon him are

set aside, he is acquitted of the charge under Section 302 of

I.P.C. The appellant is on bail, he need not surrender; however,

his bail bonds shall remain in operation for a period of 6 months

in view of the provisions contained in Section 437-A of Cr.P.C.

15. Accordingly, the criminal appeal is allowed.

                        Sd/-                              Sd/-
                (Sanjay K. Agrawal)                (Radhakishan Agrawal)
                     Judge                               Judge
Aks