Allowed

Jamuram Lekami v. State of Chhattisgarh

Chhattisgarh HC18 Sept 2024CRA/447/2019

Case brief

AI extract

What is this about?

Appeal against life sentence for murdering the accused's wife. The court held the extrajudicial confession at a village meeting unreliable and the bloodstained-weapon recovery unproved for want of exclusive possession, found the chain of circumstances broken, acquitted the accused on benefit of doubt, and allowed the appeal.

What did the court decide?

Conviction and sentence under Section 302 IPC set aside; appellant acquitted on benefit of doubt and ordered released forthwith if not required in any other case.

Jamuram Lekami Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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2024:CGHC:36637-DB

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 447 of 2019

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(Arising out of judgment dated 12.02.2019 passed in Sessions Trial No.25/2018 by the learned Sessions Judge, Dantewada, DistrictDakshin Bastar Dantewada (C.G.)

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1 - Jamuram Lekami S/o Lalu Lekami Aged About 30 Years R/o Village - Ghotpal, Bhatthinamapara, Police Station Geedam, District Dantewada Chhattisgarh., District : Dantewada, Chhattisgarh

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... Appellant

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versus

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1 - State Of Chhattisgarh Through Station House Officer Geedam, District Dantewada Chhattisgarh., District : Dantewada, Chhattisgarh

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... Respondent

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(Cause-title taken from Case Information System) For Appellant : Mr. Sandeep Yadav, Advocate For Respondent/State : Mr. Ashish Shukla, Additional Advocate General

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal &

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Hon'ble Shri Justice Amitendra Kishore Prasad

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Judgment On Board

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(19.09.2024)

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Sanjay K. Agrawal, J

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Digitally signed by RAVI SHANKAR MANDAVI

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Invoking criminal appellate jurisdiction of this Court, the present criminal appeal under Section 374(2) of CrPC has been filed by the

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appellant calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 12.02.2019 passed by the learned Sessions Judge, Dantewada, District – Dakshin Bastar Dantewada, Chhattisgarh in Sessions Trial No. 25/2018 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.100/- and in default of payment of fine additional R.I. for 1 month.

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The case of the prosecution, in a nutshell, is that in the intervening night of 20.08.2017 and 21.08.2017 around 24:00 Hrs. i.e. midnight at village Ghotpal, Bhattinamapara Police Station Geedam, District Dakshin Bastar Dantewada, Chhattisgarh, the appellant assaulted his wife Phulo Bai (now deceased) by a sharp edged weapon i.e. banda due to which she suffered grievous injuries and died. The undisputed fact is that the appellant and deceased have got married 3 years ago and were living together. Bhagchuram Kashyap (PW-1)/complainant is elder brother of the deceased, Rajneet Kumar Kashyap (PW-4) is younger brother of the deceased and Jagri Bai (PW-2) is mother of the appellant/accused.

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Further case of the prosecution is that the appellant being a habitual drunkard used to quarrel with his wife and beat her. On the date incident also, the appellant had consumed alcohol since morning and started quarrelling, which was informed to Bhagchuram Kashyap (PW1)/complainant by his younger brother Rajneet Kumar Kashyap (PW-4) over the phone. The complainant came to know in the morning that in the intervening night of 20.08.2017 and 21.08.2017 around 24:00 Hrs, the appellant after consuming alcohol killed his sister (deceased)

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assaulting her with a sharp edged weapon. On receiving the said information, the complainant went to the place of incident and saw that the body of his sister (deceased) was lying in the courtyard. There was a cut mark on her left cheek caused by a sharp weapon due to which she died. The incident was reported by complainant Bhagchuram Kashyap (PW-1) to the police on 21.08.2017 at 14:30 Hrs., pursuant to which, merg intimation and FIR were registered vide Exs.P/1 & P/6, respectively. Spot map was prepared vide Ex.P/11. Inquest proceedings (Ex.P/16) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/9) proved by Dr. Alok Minj (PW-10) cause of her death was hemorrhagic shock and the nature was homicidal and antemortem. At the instance of appellant, weapon of assault i.e. banda was recovered from his possession. The seized articles were sent for chemical examination to FSL and as per FSL report (Ex.P/24) human blood was found on seized article ‘C’ i.e. weapon of assault, banda.

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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.

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During the course of trial, in order to bring home the offence, the prosecution has examined as many as 13 witnesses and exhibited 26 documents and the appellant in defence has stated to examine witness, whereas, the appellant has not examined any defence witness. S tatement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in

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the evidence brought on record, pleaded innocence and false implication.

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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.

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Mr. Sandeep Yadav, learned counsel for the appellant, would submit that the trial Court is absolutely unjustified in convicting the appellant for the offence in question. He would also submit that the appellant has been convicted on the basis of memorandum statement, however, it cannot connect the appellant with the commission of the offence as the dead body of the deceased was found in the courtyard of his brother’s house. Further, the conviction of the appellant is also unjustified for the reason that the complainant Bhagchuram Kashyap (PW-1) is also the seizure witness in the present case. As such, the five golden principles which constitute panchsheel of the proof of a case are not established, 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 Maharashtra 1 , and therefore, the appellant is entitled for acquittal on the basis of principle of benefit of doubt and the appeal deserves to be allowed.

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On the other hand, learned State counsel Mr. Ashish Shukla, Additional Advocate General would support the impugned judgment and submit that the prosecution has been able to prove the offence beyond

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1 (1984) 4 SCC 116

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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 and the instant appeal deserves to be dismissed.

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

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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/9) proved by Dr. Alok Minj (PW-10) who has conducted postmortem and has clearly opined the cause of death of the deceased to be hemorrhagic shock and the nature of injury was homicidal and antemortem.

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11.We are of the considered opinion that learned trial Court has rightly held the death of deceased to be homicidal in nature which is a correct finding of the fact and we hereby affirm the finding recorded by the trial Court.

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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 ?

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As noticed herein-above, 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 at the time of meeting held at their

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village on being asked by Chamraram (PW-5) who is ward parshad, Bijjaram (PW-6), Mankuram (PW-7) and secondly, that pursuant to his memorandum statement (Ex.P/3), the weapon of assault used in the offence has been recovered vide Ex.P/4. We will consider both the circumstances one by one.

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Extra judicial confession

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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 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 ]

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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 :

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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 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

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2(2012) 6 SCC 403

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31995 Supp (4) SCC 259

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confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance.”

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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 .)

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The principles

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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 :

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(i) The extrajudicial 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 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.

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(v) For an extrajudicial 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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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

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4(2011) 11 SCC 754

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5(2011) 10 SCC 165

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cases including Sahadevan (supra), it is quite vivid that in the instant case the appellant is said to have made extra judicial confession at the time of meeting held at their village when the appellant was asked by Chamraram (PW-5) ward parshad, Bijjaram (PW-6) and Mankuram (PW-7) residents of the village, who have clearly stated before the Court, that the appellant had informed them that he has murdered his wife assaulting her with banda and the learned trial Court has relied upon the said extrajudicial confession. However, in our considered opinion, the alleged extra judicial confession made by the appellant in the village meeting cannot be said to be true and voluntary. Since the prosecution has miserably failed to prove the extra judicial confession, we are unable to hold that it was true and voluntarily made by the appellant in the village meeting, as it is surrounded by suspicious circumstances and its credibility is doubtful. Therefore, we reject the testimony of Chamraram (PW-5) the ward parshad, Bijjaram (PW-6) and Mankuram (PW-7) before whom the alleged extra judicial confession has been made by the appellant.

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Recovery of bloodstained weapon banda

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The next circumstance that has been found proved by the trial Court against the appellant herein is the recovery of bloodstained banda made from his possession vide Ex. P/4, pursuant to his memorandum statement (Ex.P/3).

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The memorandum statement of the appellant/accused is said to have been recorded on 22.08.2017 at 03:30 p.m. vide Ex. P/3 and the recovery of the banda has been made from behind the door of the house (Chhapra Pati) vide Ex. P/4 and thereafter, the appellant has

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been arrested at about 05:10 p.m. vide P/23. The appellant and his were family members were also residing nearby and it has not been proved that appellant was in the exclusive possession of the said weapon during that period, that too, at the place from where seizure of alleged bloodstained weapon-banda has been made.

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The Supreme Court in the matter of Mani vs. State of Tamil Nadu⁶ , 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 :

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“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.”

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In the instant case, as noticed herein-above, pursuant to memorandum statement of the appellant/accused vide Ex.P/3, recovery of blood stained banda has been made vide Ex.P/4 from the Chhapra Patti, as such, prosecution has failed to establish that the

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6 (2009) 17 SCC 273

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door of the house from where recovery has been made was in exclusive possession of the appellant. Even otherwise, the memorandum statement was recorded on 22.08.2017 at about 03:30 p.m. and thereafter appellant was not the only inmate living in the house in question from where the bloodstained banda has been recovered. Apart from this, the seized articles including the bloodstained banda were sent for chemical examination but the clothes of the appellant were not seized and sent for chemical examination to the FSL.

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As such, from the aforesaid discussion, we are of the considered opinion that firstly, the extra judicial confession allegedly made by the appellant/accused in the village meeting 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, the recovery of bloodstained banda 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 the place behind the door of the house from where the banda has been seized was in exclusive possession of the appellant. Thus, we are of the considered opinion that it is a case of circumstantial evidence and the prosecution has utterly and miserably failed in establishing the chain of circumstances to hold that appellant is the author of the crime in question.

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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

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mentioned above. The appellant is acquitted of the charge punishable under Section 302 of IPC, on benefit of doubt. He is stated to be in jail since 22.08.2017, he be released forthwith, if not required in any other case.

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Accordingly, the criminal appeal is allowed .

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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.

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Sd/Sd/- (Sanjay K. Agrawal) (Amitendra Kishore Prasad) Judge Judge

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Ravi Mandavi

Jamuram Lekami v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Jamuram Lekami v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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