Allowed

Sunder Sai Korwa v. State Of Chhattisgarh

Chhattisgarh HC6 Dec 2023CRA/895/2016

Case brief

AI extract

What is this about?

Criminal appeal against conviction and sentence for murder dismissed. The High Court held that the conviction relied solely on a weak extra-judicial confession and a weapon where the human origin of blood was not proved. Following precedent, the Court set aside the conviction and granted acquittal.

What did the court decide?

Conviction under Section 302 IPC set aside; appellant entitled to acquittal on the basis of benefit of doubt and released forthwith.

Sunder Sai Korwa Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2023)

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CRA No. 895 of 2016

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 895 of 2016

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Sunder Sai Korwa S/o Etwa Ram Korwa, aged about 34 years, Caste Korwa, R/o Ambadeepa Bhanj Pahad, Police Station Sanna, District Jashpur (CG)

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---- Appellant

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Versus

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State Of Chhattisgarh, Acting Through Station House Officer, Police Station Sanna, District Jashpur (CG).

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---- Respondent

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For Appellant : Mr. Anand Kumar Gupta, Advocate. For State : Mr. Sudeep Verma, Dy. Government Advocate.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay S. Agrawal

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Judgment On Board

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(06.12.2023)

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Sanjay K. Agrawal, J

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1 . This criminal appeal under Section 374(2) of the CrPC preferred by the appellant-accused herein is directed against the impugned judgment of conviction and order of sentence dated 27.04.2016 passed by the Sessions Judge, Sessions Division, Jashpur, District Jashpur,

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Chhattisgarh in Sessions Trial No. 89/2015, by which, the appellant has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life and pay fine of Rs.3,000/-; in default of payment of fine to further undergo additional rigorous imprisonment for three months.

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2 . Case of the prosecution, in brief, is that on 17.06.2015, in the night at about 8.00 pm at village Ambadeepa, Police Station, Sanna, District Jashpur (C.G.), the appellant- Sunder Sai Korwa has assaulted his wifeShanti Bai (since deceased), by wooden stick (Geda) on her head, by which, she suffered grievous injuries and died and thereby, committed the aforesaid offence.

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3 . The further case of the prosecution is that on 17.06.2015 in the night, at about 8-9.00 pm, on account of suspicion on the character of his wife, the appellant/ accused has assaulted her by wooden stick on her head, by which, she suffered grievous injuries and died immediately. On the next day morning, i.e. 18.06.2015, the appellant went to the house of his uncle, namely, Chamru Ram (PW-8) and confessed that he has killed his wife on account of her illicit relations with somebody, by

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wooden stick on her head, by which, she died. Thereafter, Chamru Ram (PW-8) informed the incident to Jagat Prasad Yadav (PW-1), who lodged merg intimation vide Ex. P-1 and F.I.R. vide Ex.P-2. During the course of investigation, spot map was prepared vide Ex. P-12. Inquest on the dead body of the deceased was prepared vide Ex. P-6. Panchanama was prepared vide Ex. P-5. The dead body was sent for postmortem to C.H.C. Bagicha vide Ex. P-16, where Dr.C.D. Bakhla (PW-6) conducted the postmortem vide Ex.P-13 and opined that the cause of death is hemorrhagic shock due to the injury on head and abdomen and the death was homicidal in nature. Pursuant to memorandum statement of the appellant / accused vide Ex.P-9, one wooden stick was seized from him vide Ex.P-10. Sample of blood stained soil and plain soil was collected vide Ex.P-8. The seized articles were sent to the Forensic Science Laboratory, Ambikapur and F.S.L. report is Ex.P-20, according to which, blood was found on the wooden stick, Article ‘C’.

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4 . After due investigation, the appellant was chargesheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance

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with law. The appellant herein abjured his guilt and entered into defence and prayed for trial.

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5 . In order to bring home the offence, prosecution has examined as many as 12 witnesses and exhibited 20 documents and defence in support of its case has neither examined any witness nor exhibited any document.

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6 . The trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant / accused for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred questioning the impugned judgment of conviction and order of sentence.

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7 . Mr. Anand Kumar Gutpa, learned counsel for the appellant, submits that appellant has falsely been implicated in the crime in question and the finding recorded by the trial Court is perverse. He further submits that the appellant has been convicted only on the basis of statement of Chamru Ram (PW-8), before whom he has made extra-judicial confession. He also submits that extra-judicial confession is a weak type of evidence and it cannot be accepted unless it is corroborated by other piece of evidence; and in the F.S.L. report, though blood was

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found on the wooden stick, seized from the appellant, but origin of the blood group was not ascertained. He submits that the appellant is in jail since 17.06.2015 and there is no direct evidence against him, as such, he is entitled for acquittal on the basis of benefit of doubt.

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8 . On the other hand, Mr. Sudeep Verma, learned State counsel, supports the impugned judgment and submits that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant on the basis of extrajudicial confession made by the appellant to Chamru Ram (PW-8), which inspires confidence, therefore, the instant appeal deserves to be dismissed.

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9 . We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection.

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10. The first question is as to whether the death of deceased -Shanti Bai was homicidal in nature, which the learned trial Court has recorded the finding in affirmative on the basis of postmortem report (Ex.P-13), which is proved by Dr.C.D. Bakhla (PW-6), and which is the finding of fact based upon evidence available on record, it is

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neither perverse nor contrary to the record and we hereby affirm the said finding.

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11. Now, the next question is, whether the trial Court has rightly held the appellant to be the author of crime in question ?

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12. The case of the prosecution is based on the extrajudicial confession made by the appellant before Chamru Ram (PW-8), who is his uncle, regarding the assault made by him b y wooden stick on his wife- Shanti Bai on account of her illicit relationship with somebody and pursuant to memorandum statement of the appellant (Ex.P-9), wooden stick has been seized vide Ex. P-10 and in the F.S.L. report (Ex.P-20), only blood has been found on it but, origin of the blood group was not ascertained.

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13. We shall now consider the said pieces of evidence found proved by the trial Court which have been the basis of appellant's conviction, one by one.

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Extra Judicial Confession

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It is the settled principle of criminal jurisprudence that extra judicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire

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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 and

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another v. State of Tamil Nadu1 ]

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In the matter of Sahadevan (supra), their Lordships of the Supreme Court further considered the earlier decisions

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including Balwinder Singh v. State of Punjab 2 and pertinently laid down the principle in paragraphs 15.1, 15.8 and 16 as under :-

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“15.1. In Balwinder Singh (supra) this Court stated the principle that: (SCC p. 265, para 10)

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“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

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1 (2012) 6 SCC 403

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2 1995 Supp (4) SCC 259

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suspicious circumstances, its credibility becomes doubtful and it loses its importance.”

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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.³ and Pancho v. State of Haryana⁴ .)

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The principles

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Upon a proper analysis of the above referred 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 extrajudicial confession alleged to have been made by the accused :

3 (2011) 11 SCC 754

4 (2011) 10 SCC 165

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

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

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(iii) It should inspire confidence.

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(iv) An extra-judicial 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.

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

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

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The principle of law laid down in Sahadevan (supra) has further been followed with approval in the matter of Pradeep Kumar v. State of Chhattisgarh 5 and very recently in the matter of Pawan Kumar Chourasia v. State of Bihar 6 wherein the following principle of law has been laid down by their Lordships in paragraph 5 of the report :-

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5 Criminal Appeal No. 1304 of 2018, judgment dated 16/03/2023

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6 2023 LiveLaw (SC) 197

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“ EVIDENTIARY VALUE OF EXTRA-JUDICIAL CONFESSION

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As far as extra-judicial confession is concerned, the law is well settled. Generally, it is a weak piece of evidence. However, a conviction can be sustained on the basis of extra-judicial confession provided that the confession is proved to be voluntary and truthful. It should be free of any inducement. The evidentiary value of such confession also depends on the person to whom it is made. Going by the natural course of human conduct, normally, a person would confide about a crime committed by him only with such a person in whom he has implicit faith. Normally, a person would not make a confession to someone who is totally a stranger to him. Moreover, the Court has to be satisfied with the reliability of the confession keeping in view the circumstances in which it is made. As a matter of rule, corroboration is not required. However, if an extra-judicial confession is corroborated by other evidence on record, it acquires more credibility. ”

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17. In the matter of Nikhil Chandra Mondal v. State of

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West Bengal7 , principles of law have been laid down by their Lordships qua evidentiary value of extra judicial confession in paragraphs 13 & 15 as under:-

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“13.The trial Court observed that where the prosecution case is entirely based on extrajudicial confession and the prosecution seeks conviction of the accused on that extrajudicial confession, the evidence of the witnesses before whom the alleged confessional statement was made, requires a greater scrutiny to pass the test of credibility.

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It is a settled principle of law that extrajudicial confession is a weak piece of

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7 2023 LiveLaw (SC) 171

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evidence. It has been held that where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. It has further been held that it is well-settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession. It has been held that there is no doubt that conviction can be based on extra-judicial confession, but in the very nature of things, it is a weak piece of evidence. Reliance in this respect could be placed on the judgment of this Court in the case of Sahadevan and Another v. State of Tamil Nadu (2012) 6 SCC 403 . This Court, in the said case, after referring to various earlier judgments on the point, observed thus:

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“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 precepts 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:

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

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

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(iii) It should inspire confidence.

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

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circumstances and is further corroborated by other prosecution evidence.

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

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

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The appellant is said to have given extra-judicial confession to Chamru Ram (PW-8), his uncle and he has stated that on 18.06.2015 in the morning at about 6.00 am, the appellant came to him and confessed that he has killed his wife- Shanti Bai by assaulting her by wooden stick, by which, she suffered grievous injuries and died and thereafter, he informed regarding the incident to Jagat Prasad Yadav (PW-1) and then Jagat Prasad Yadav has lodged the F.I.R. and merg intimation. Though, Chamru Ram has been subjected to cross-examination to some extent, but he has denied that the appellant has not made extra-judicial confession before him.

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In the light of the principles of law laid down by their Lordships of the Supreme Court in above-stated judgments, the extra-judicial confession requires to be supported by other cogent circumstances and it should be

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further corroborated by other prosecution evidence, for which, the prosecution has proved that pursuant to the memorandum statement of the appellant / accused (Ex.P9), one wooden stick was seized vide Ex.P-10 and in the F.S.L. report Ex.P-20, on Article ‘C’, wooden stick, blood was found.

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20. The Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh and another8 held 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 and held in Para-24 as under:-

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“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

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8 (2019) 7 SCC 781

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does not help the case of the prosecution.”

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Since wooden stick was recovered pursuant to the memorandum statement of the accused / appellant, but in the F.S.L. report, blood was found on it, however, the origin of the blood group was not ascertained as to whether the same was human origin or not. In view of the decision rendered by the Supreme Court in the matter of Balwan Singh (supra), the recovery is of no use to the prosecution and as such, there is no further corroborative piece of evidence except the extra-judicial confession, which is a weak type of evidence, in the light of principles of law laid down by their Lordships in the aforesaid judgments. Therefore, we are of the considered opinion that the trial Court has committed illegality in convicting the appellant under Section 302 of the IPC on the basis of extra-judicial confession, which is a weak type of evidence and it is not supported by other corroborative piece of evidence. Consequently, we are unable to uphold the conviction of the appellant for offence under Section 302 of the IPC and he is entitled for acquittal on the basis of benefit of doubt, as such, his conviction for offence under Section 302 of the IPC is set aside. The appellant is reported to be in jail since 17.06.2015, we direct that he

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be released from the jail forthwith, if not required in any

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other matter.

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22. This criminal appeal is allowed .

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23. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and to the Superintendent of Jail where he is lodged and suffering jail sentence, forthwith for necessary information and action, if any.

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

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sunita

Sunder Sai Korwa v. State Of Chhattisgarh

Case brief

What is this about?

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Sunder Sai Korwa v. State Of Chhattisgarh

Case brief

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