Chattisgarh High Court
Deo Lal Dhruva vs State Of Chhattisgarh on 17 September, 2024
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1/8
2024:CGHC:36184-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 549 of 2019
(Arising out of judgment dated 13.02.2019 passed in Sessions Trial
No.39/2017 by the learned Additional Sessions Judge, Gariyaband,
District - Gariyaband (C.G.)
1 - Deo Lal Dhruva S/o Late Rain Singh Dhruva Aged About 40 Years R/o
Samhara Police Station Mainpur District Gariyaband Chhattisgarh., District :
Gariyabandh, Chhattisgarh
... Petitioner
versus
1 - State Of Chhattisgarh Through Incharge Police Station Mainpur, District
Gariyaband Chhattisgarh., District : Gariyabandh, Chhattisgarh
... Respondent
(Cause-title taken from Case Information System) For Petitioner : Ms. Usha Chandrakar, Advocate For Respondent/State : Mr. Ashish Shukla, Additional A.G. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Amitendra Kishore Prasad Judgment On Board (17.09.2024) Sanjay K. Agrawal, J
1. Invoking criminal appellate jurisdiction of this Court, the present Digitally criminal appeal under Section 374(2) of CrPC has been filed by the signed by RAVI SHANKAR MANDAVI appellant calling in question the legality, validity and correctness of the 2/8 judgment of conviction and order of sentence dated 13.02.2019 passed by the learned Additional Sessions Judge, Gariyaband, Chhattisgarh in Sessions Trial No. 39/2017 whereby the appellant has been convicted for offence punishable under Section 302 of the IPC and sentenced to undergo imprisonment for life with fine of Rs. 500/- and in default of payment of fine additional S.I. for 2 months.
2. The case of the prosecution, in a nutshell, is that in the evening of 20.06.2017 between 05:00 p.m. to 06:00 p.m. at village Semhara, Police Station Mainpur, District Gariyaband, Chhattisgarh, the appellant assaulted his mother Pawan Bai (now deceased) by throttling her neck with his own hands, due to which she died. The incident was reported by complainant Jagdish Dhruv (PW-1) to the police stating that on 21.06.2017 at about 06:00 a.m., Smt. Uma Bai (PW/5) wife of appellant came to his house and informed that her mother-in-law was lying dead in the courtyard of her own house. Whereupon, Jagdish Dhruv (PW-1) along with Ramdayal Dhruv (PW-2), Samaru Dhruv (PW-6), Pardeshi Ram Dhruv (P.W.-3) went to the house of the deceased and found that the deceased Pavan Bai was lying dead in her courtyard and there was sign of throttling on her neck. As informed by Jagdish Dhruv (PW-1) there was an existing land dispute between appellant and the deceased and in the previous night also both of them were quarrelling regarding the said property dispute and thereafter, the appellant killed his mother Pawan Bai (deceased) by throttling her neck. Pursuant to the said report of Jagdish Dhruv (PW-1) merg intimation and FIR were registered vide Exs.P/14 & P15, respectively. Spot map was prepared vide Ex.P/6. Inquest proceedings (Ex.P/4) were conducted and the 3/8 dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/12) proved by Dr. Rajendra Binkar (PW-9), cause of her death was asphyxia and the death was homicidal (throttling) in nature.
3. After due investigation, appellant was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant/accused abjured his guilt and entered into defence.
4. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 11 witnesses and exhibited 18 documents and the appellant in defence has stated to examined two witnesses (PW-1) Jagdish Dhurv and (PW-04) Smt. Mamta Mahar whose statement were recorded vide Ex.D/1 and ExD/2 respectively. Statement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence brought on record, pleaded innocence and false implication.
5. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence.
6. Ms. Usha Chandrakar learned counsel for the appellant, would submit that the trial Court is absolutely unjustified in convicting the appellant for the offence in question. She would also submit that the appellant 4/8 has been convicted on the basis of memorandum statement, however, it cannot connect the appellant with the commission of the offence as his family members have stated that the appellant was not in house on the date and time of incident and the alleged extra judicial confession made is not true and voluntary and as such, is not reliable. Moreover, the dead body of the deceased was found in the courtyard of deceased house, further, it could not connect the appellant in the offence in question as his mother was residing separately from the appellant and the five golden principles which constitute panchsheel of the proof of a case could not be completed in light of the principles of law laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra1, therefore, the appellant is entitled for acquittal on the basis of principle of benefit of doubt and the appeal deserves to be allowed.
7. On the other hand, learned State counsel Mr. Ashish Shukla, Additional Advocate General would support the impugned judgment and submit that prosecution has been able to prove the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence, therefore, the appellant has rightly been convicted for the offence in question. Thus, the instant appeal deserves to be dismissed.
8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records with utmost circumspection.
1 (1984) 4 SCC 116 5/8
9. The first question, as to whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P/12) proved by Dr. Rajendra Binkar (PW-9) who has conducted the postmortem of the deceased and opined that the cause of her death was asphyxia, owing to throttling of neck and the nature of death was homicidal. After hearing learned counsel for the parties and after going through the postmortem report (Ex.P/12) as well as going through the evidence of Dr. Rajendra Binkar (PW-9), we are of the considered opinion that learned trial Court has rightly held the death of deceased to be homicidal in nature. We hereby affirm the finding recorded by the trial Court.
10. Now, the 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?
11. In the case at hand, the conviction of the appellant is merely based on the extra-judicial confession allegedly given by the appellant to Jagdish Dhurv (PW-01), Ramdayal Dhruv (PW-02), Pardeshi Ram Dhruv (PW-
03) and Smt. Mamta Mahar (PW-04). Therefore, it would be relevant here to notice the principles governing extra-judicial confession.
12. 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 6/8 discrepancies or inherent improbabilities and does not appear to 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 vs. State of Tamil Nadu2 ]
13. 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 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.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 2(2012) 6 SCC 403 31995 Supp (4) SCC 259 4(2011) 11 SCC 754 5(2011) 10 SCC 165 7/8 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.
(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."
14. 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 firstly to Jagdish Dhurv (PW-01). Jagdish Dhurv (PW-01) in Para-02 of his statement before the Court has clearly stated that on being asked the appellant informed him that on account of partition, he has strangulated his mother. As such, the same cannot be considered to be true and voluntary for the reason that the appellant made the said extra-judicial confession to Jagdish Dhurv (PW-01) when he was asked by him. Secondly, the appellant is said to have given extra-judicial confession to Ramdayal Dhruv (PW-02), who in Para-08 of his statement has clearly stated that in presence of police the appellant has informed him 8/8 that he has strangulated the neck of his mother, therefore, the same is hit by Section 25 of the Indian Evidence Act, 1872 and cannot be relied upon. Similarly, Pardeshi Ram Dhurv (PW-03) and Smt. Mamta Mahar (PW-04) have stated that in present of police the appellant has admitted/made extra-judicial confession that he has caused murder of his mother (deceased) by strangulation, therefore, the same are also hit by Section 25 of the IE Act and cannot be relied upon to base the conviction of the appellant that too for an offence under Section 302 of IPC. Except this, there is no other evidence available on record to connect the present appellant with the offence in question.
15. In that view of the matter, we have no option except to set aside the impugned 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. He is stated to be in Jail since 22.06.2017. He be released from Jail forthwith, if not required in any other case.
16. Accordingly, the criminal appeal is allowed.
17. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and the copy of this judgment be supplied to the concerned Superintendent of Jail where the appellants are lodged and suffering jail sentence, forthwith for information and necessary action, if any.
Sd/- Sd/-
(Sanjay K. Agrawal) (Amitendra Kishore Prasad)
Judge Judge
Ravi Mandavi