Jharkhand High Court
Budhu Nag Chatar vs The State Of Jharkhand on 17 September, 2024
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
Criminal Appeal (D.B.) No. 29 of 2011
With
Criminal Appeal (D.B.) No. 32 of 2011
[Arising out of judgment of conviction dated 13.12.2010 and order of
sentence dated 16.12.2010 passed by learned Additional Sessions Judge,
F.T.C. V, West Singhbhum in Sessions Trial No. 239 of 2008]
Criminal Appeal (D.B.) No. 29 of 2011
Budhu Nag Chatar, son of Late Pandu Nag Chatar, resident Village Kansara,
Jarjata, P.O. Natki, P.S. Karaikela District Singhbhum West
.... .... .... Appellant
--Versus--
The State of Jharkhand .... .... .... Respondent
With
Criminal Appeal (D.B.) No. 32 of 2011
Gangu Purty @ Marshal son of Late Mochi Purty, resident of Village
Raigadha, P.O. & P.S. Sonua, District Singhbhum West
.... .... .... Appellant
--Versus--
The State of Jharkhand .... .... .... Respondent
For the Appellants
: Mr. R.P. Gupta, Advocate
For the State : Mr. Manoj Kumar Mishra, A.P.P.
-----
PRESENT: SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
-----
JUDGMENT
Reserved on: 09.09.2024 Pronounced On:17.09.2024
Per Gautam Kumar Choudhary, J. Both these appeals arise out of the common
judgment of conviction and sentence by which appellants have been convicted
and sentenced under Section 302/34 of the IPC.
2. Informant of the case is Village Headman (Munda), Lawrence Purty. As
per his statement given to police on 23.06.2008, his co-villager Soma Purty
was missing since 19.06.2008. When they started searching for him, it
transpired that on 19.06.2008, Soma Purty had been seen at Razi with his
cousin brothers Gangu Purty @ Marshal and Budhu Nag Chatar (appellants),
and thereafter, he was not seen again. A meeting was convened on 22.06.2008
and both these appellants were interrogated, and on pressure, they confessed
the crime of killing him in the night on 19.06.2008 by Farsa and Tangi.
Thereafter, in order to cause the disappearance of the evidence, the dead body
had been concealed 5 Km. deep in the forest. On the said disclosure, informant
along with Malki Purty, Alfos Purty, Dugi Bandia, Dunda Soren went to the
place where the body had been concealed in a ditch covered with leaf. There
was deep wound on the neck and over the right knee. The Tangi and Farsa
were recovered from their home. Motive for the offence was disclosed by the
appellants to be land dispute. Both the appellants along with the dead body
was handed over to the police.
3. On the basis of the statement, Sonua P.S. Case No.22/2008 was
registered under Sections 302, 201/34 of the IPC against both the appellants.
After investigation, charge sheet was submitted and the appellants were put on
trial for offence under Section 302/34 of the IPC. Altogether six witnesses
have been examined on behalf of the prosecution and the relevant documents
including post mortem examination report, seizure list and FSL report have
been adduced into evidence and marked as exhibits.
4. After the prosecution evidence, statement of the accused has been
recorded under Section 313 of the Cr.P.C. Defence is of denial, but no specific
defence has been pleaded.
5. It is argued by the learned counsel on behalf of the appellants that there
is no direct eye witness to the incidence and the case rests on extra judicial
confession which is considered a weak evidence. There is no corroboration to
prove the guilt of the appellants. Out of the six witnesses examined, five
witnesses are material witnesses. P.W. 4 is the Doctor and P.W. 6 is the
Investigating Officer. P.W. 2, P.W. 3 and P.W. 5, have not supported the case
and were declared hostile. The confessional statement is also vitiated because
it was obtained under duress as deposed to by P.W. 1 in para 14.
6. Learned A.P.P. has defended the judgment of conviction and sentence.
7. It is not in dispute that deceased- Soma Purty died a homicidal death
which has been proved by P.W. 4, who conducted autopsy on the dead body
and proved the post mortem examination report (Exhibit 5). The following
ante mortem injuries were found: -
I. External: - Incised wound on right side of neck cutting neck vessels,
muscles, trachea, oesophagus and vertebral bone at C-2/C-3 level- 5" x
3" x 4 ½ ". Head attached with body with skin tag.
II. Incised wound amputating leg from (right) mid-thigh, amputated part
approximating a thigh belonging to same person.
III. Incised wound of left knee 2" x ½" x 1".
Doctor opined that the death was caused by hemorrhage and shock due
to injury by sharp edged instrument.
8. Informant of this case (P.W. 1) is a Village Headman and is independent
witness. There is nothing on record to suggest even remotely that this witness
had any enmity with the appellants. It has been deposed by him that a
Panchayti was convened in the village in which the appellant confessed the
guilt of committing murder of Soma Purty. On their disclosure statement, the
dead body was discovered from Kantu Lower Jungle. The weapon of offence
namely Farsa and Tangi were recovered by police on the disclosure statement
made by them. Confession being made not before police will not hit under
Section 25 of the Evidence Act.
P.W. 2 has been declared hostile, but he has proved his signature on the
fardbeyan which he had signed along with Lawrence Purty. He has not denied
the factum of Panchyat being held, but has stated that he had not attended the
panchayat. In para 5, he was non-committal on the question whether the dead
body was recovered from the Jungle or not. He has identified his signature on
the confessional statement of the accused persons and has admitted that they
had taken the accused person to the police station.
P.W. 3 identified the signature on fardbeyan and also on the seizure list,
but beyond this he has expressed his ignorance even about the deceased,
informant or the appellant- Budhu Nag Chatar. Deposition of P.W. 5 is also on
the same line.
P.W. 6 is the I.O. of the case. It has been deposed by him that the dead
body and weapon of offence was brought by the informant party.
9. The appellants were also produced by the villagers who were formally
arrested. Place of occurrence has been said to be the village road between
Raigarh and Tonto Mircha. The second place of occurrence from where the
dead body was found, was Kantu Lower Jungle.
10. This is a somewhat unique case, in as much that confession leading to
recovery of the dead body was not made to the police, but before a Village
Panchayat. Confession made to police is not admissible into evidence, and
only facts which are deposed to as discovered in consequence of information
received, from a person accused of any offence, in the custody of police
officer, is admissible under Section 27 of the Evidence Act. The confession
made by the appellants before the Panchayat, has been testified to by P.W. 1,
who is an independent witness. The other witnesses have not expressly denied
that a Panchayat was held and the confession was made leading to recovery of
dead body from the remote forest area. Thus, we have positive assertion on
oath made by P.W. 1 whose testimony has remained undemolished in the cross
examination regarding the recovery of the dead body on the disclosure
statement of the appellants. On the other hand, we have evasive reply of the
witnesses on the factum of such a Panchayat being held, as there is no express
denial, but only ignorance about it. The principle of appreciating evidence in
such case is that in estimating the value of evidence, the testimony of a person
who swears positively that certain conversation took place, is of more value
than that of one who says it did not. Meaning thereby, an affirmative evidence
carries greater weight than an ambivalent or negative evidence. In the present
case, no negative evidence has been adduced to deny Panchayat being held in
the village and therefore, there is no reason to disbelieve the account of
informant (P.W. 1) whose testimony is corroborated by his earlier statement
(fardbeyan) in terms of Section 157 of the Evidence Act.
11. Confession made by the accused persons before the Panchayat will
come within the meaning of extra-judicial confession and the veracity of it, is
established by the recovery of the dead body from the jungle area. The place
of recovery deep inside the jungle and knowledge of it to the appellants, raises
a presumption under Section 106 of the Evidence Act [see State of
Maharashtra Versus Damu, (2000) 6 SCC 269] against them. It was
incumbent on their part to have explained as to how they came to know about
it. Extra judicial confession is a weak piece of evidence, but in the present
case, recovery made on its basis lends credence to its credibility. Extra Judicial
confession can form the basis for conviction, if person before whom it is
made, appears to be unbiased and not inimical to the accused [see (2009) 11
SCC 262]. In (2009) 14 SCC 436, extra judicial confession made by the
accused before the Administrative Officer of the village was found reliable
and acted upon.
12. For the reasons discussed above, I am of the view that extra judicial
confession made by the appellants in the present case leading to recovery of
the dead body from remote forest area, can be acted upon and made the basis
for conviction of the appellants. There is no infirmity in the judgment of
conviction and sentence passed and there does not exist any strong reason to
differ with the finding of the learned trial Court.
Judgment of conviction and sentence stands affirmed.
Both the Criminal Appeal stand dismissed.
Pending Interlocutory Application, if any, is disposed of.
Let the Trial Court Records be transmitted to the Court concerned along
with a copy of this judgment.
(Gautam Kumar Choudhary, J.)
Per Ananda Sen, J. I agree.
(Ananda Sen, J.)
High Court of Jharkhand, Ranchi
Dated 17th September, 2024
AFR/Anit
