REPORTA

BLE

THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1243 OF 2006

PODYAMI SUKADA               …. APPELLANT

   Versus

STATE OF M.P (NOW CHHATISGAR)         .... RESPONDENT

J U D G M E N T

C.K. Prasad,  J.

1. This appeal, by grant of leave arises from the judgment  

and order dated 22nd June, 2005 passed by the Chhatisgarh  

High Court in Criminal Appeal No.936 of 2000, whereby it had  

upheld the conviction of the appellant under Section 302 of  

the Indian Penal Code and punishment of life imprisonment  

inflicted by Order dated 18th February  2000,  passed by the

First  Additional  Sessions  Judge,  Bastar  in  Sessions  Trial  

No.45 of 2000.

2. According  to  the  prosecution,  on  9th December,  1999  

Madvi Pali, went to the house of Madvi Mase to borrow money  

and  when  she  reached  there,  she  found  her  dead.   She  

informed PW.1, Madvi Rama about the incident. Madvi Rama  

went to the house of Madvi Mase and found her dead with  

wounds at different places on the body.  PW.1, Madvi Rama,  

according  to  the  prosecution,  convened  a  meeting   and  on  

enquiry,  the appellant  confessed in the meeting that in the  

night of 8th December, 1999 his mother (deceased)-Madvi Mase  

scolded him alleging that he wanders after consuming liquor  

which enraged him and he picked up a burning wooden plank  

and assaulted her which caused her death.  On the basis of  

what  has been disclosed  in  the  meeting  PW.1 Madvi  Rama  

gave report to the Police Station, Tongpal.  

3. On the basis of the aforesaid information, a case under  

Section 302 of the Indian Penal Code was registered against  

the  appellant.  During  the  course  of  investigation  inquest  

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report of the dead body was prepared in the presence of the  

witnesses and the dead body sent to Primary Health Centre,  

Tongpal for postmortem examination.  Dr. S.L. Dhangar(PW.5),  

a  Civil  Assistant  Surgeon,  posted  at  the  Primary  Health  

Centre, Tongpal conducted the postmortem examination and  

found a large number of burn injuries on the person of the  

deceased and in his opinion the death had occurred due to  

shock  on  account  of  burn  injuries.  PW.6,  P.L.  Nayak,  the  

Investigating Officer of the case arrested the appellant during  

the course of investigation and on his statement,  the wooden  

plank,  alleged to  have  been used in  the  commission of  the  

crime, was recovered.   

4. After usual investigation, the charge-sheet was submitted  

under Section 302 of the Indian Penal Code and the appellant  

was committed to the Court of Sessions to face the trial for  

commission of the above said crime.  Appellant abjured his  

guilt and claimed to be tried.   

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5. To bring home the charge, the prosecution has altogether  

examined six witnesses out of whom PW.1 Madvi Rama, PW.2  

Mangdu,  PW.3  Aaita  and  PW.4  Lekhan  have  been declared  

hostile  and  cross-examined  by  the  prosecution.   Besides  

aforesaid witnesses, prosecution has also examined P.W.5 Dr.  

S.L. Dhangar, the autopsy surgeon and P.W.6 P.L. Nayak, the  

investigating  officer.   The  plea  of  the  appellant  is  denial  

simplicitor and false implication but no defence witness has  

been examined.

6. On the basis of evidence on record the trial court came to  

the conclusion that Madvi Mase met with a homicidal death,  

which finding has been affirmed by the High Court in appeal.  

Further relying on the extrajudicial confession and recovery of  

the weapon of crime at the instance of the appellant the Trial  

Court convicted and sentenced the appellant as above and it  

has been maintained by the High Court in appeal. Relevant  

portion of the judgment of the High Court in this regard reads  

as follows:

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“In view of the above, we are of the considered  opinion  that  extrajudicial  confession  regarding  causing death of his mother attacking her with  the  teak wood plank was made by the accused before  the  Panchayat,  this  evidence  of  extrajudicial   confession by accused before these witnesses inspire   confidence  of  the  Court  as  the  same  stands  corroborated by F.I.R. Ex.P.1 Recovery of weapon of  offence as well as medical evidence also corroborates  the  confession.   Therefore,  the  finding  of  the  Trial   Court  convicting  the  accused for the  offence under  Section 302 is based on the legal evidence and we   do not find any circumstance to differ from the view  taken by the Trial Court.”

7. We have heard Mr. D.N. Goburdhan for the appellant and  

Mr. Atul Jha for the State.  Mr. Goburdhan submits that in  

view of  the  evidence on record,  the finding recorded by the  

courts  below  that  deceased  met  with  the  homicidal  death,  

cannot legitimately be assailed.  However, he submits that the  

witnesses to the extra judicial confession are not reliable and  

hence the conviction and sentence of the appellant deserve to  

be set aside.  He points out that alleged recovery of the weapon  

of crime at the instance of the appellant is tainted and hence,  

not enough to accept the case of the prosecution.

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8. Mr. Jha, however, submits that extra judicial confession  

of the appellant together with the recovery of the weapon of  

crime at his instance conclusively establishes the guilt of the  

appellant.   

9. There is no eye-witness of the crime and in order to bring  

home  the  charge  the  prosecution  has  relied  on  the  

extrajudicial  confession  said  to  have  been  made  by  the  

appellant in the Panchayat in the presence of PWs.1 to 4 and  

further recovery of weapon by the Investigating Officer at his  

instance.   Hence what needs to be considered is as to whether  

the  extrajudicial  confession  said  to  have been made by the  

appellant  in  the  presence  of  the  witnesses  deserves  to  be  

relied.  As stated earlier all the witnesses to the extra judicial  

confession  have  been  declared  hostile  by  the  prosecution.  

True,  it  is  that  the  evidence  of  the  hostile  witness  is  not  

altogether wiped out and remains admissible in evidence and  

there is no legal bar to base conviction on the basis of  the  

testimony of hostile witness but as a rule of  prudence, the  

court requires corroboration by other reliable evidence. In the  

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present  case  PW.1 Madvi  Rama,  PW.2 Mangdu,  PW.3 Aaita  

and  PW.4  Lekhan  in  their  evidence  had  stated  that  the  

meeting  was  called  in  the  village  after  the  death  of  the  

deceased, but PW.2 Mangdu and PW.4 Lekhan  have nowhere  

stated that extrajudicial confession was made by the appellant  

admitting that he had killed the deceased. PW.1, Madvi Rama  

and  PW.3,  Aaita  too  have  not  stated  anything  about  

extrajudicial confession in their examination in chief but after  

being declared hostile and cross-examined by the prosecution  

they disclosed that the appellant had confessed that he killed  

the deceased with the burnt stick as she told him that he was  

wandering  after  consuming  liquor.  However,  when  cross-

examined by the defence, again they admitted that no such  

confession was made by the appellant.  Thus there is complete  

sommersault in their evidence.

10. Evidentiary  value  of  extra  judicial  confession  depends  

upon trustworthiness of the witness before whom confession is  

made.  Law does not contemplate that the evidence of an extra  

judicial confession should in all cases be corroborated.  It is  

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not an inflexible rule that in no case conviction can be based  

solely on extrajudicial confession.  It is  basically in the realm  

of appreciation of evidence and a question of fact to be decided  

in the facts and circumstances of each case.

11. In the face of the evidence aforesaid, the question falls for  

consideration is as to whether the conviction of the appellant  

is  fit  to  be  sustained only  on the basis  of  the  extrajudicial  

confession coupled with the recovery of weapon of crime at the  

instance  of  appellant.  As  stated  earlier  PW.2,  Mangdu  and  

PW.4, Lekhan neither in the examination-in-chief nor in the  

cross-examination had stated anything about the extrajudicial  

confession said to have been made by the appellant.  PW.1,  

Madvi Rama and PW.3, Aaita in the examination-in-chief did  

not  support  the  case  of  the  prosecution  and  after  being  

declared hostile  and cross-examined by the prosecution did  

say  about  the  extrajudicial  confession  by  the  appellant  but  

again on cross-examination by the defence they admitted that  

no  such  confession  was  made  by  the  appellant.  Thus  the  

evidence of  both the prosecution witnesses are slippery and  

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from their evidence, it is difficult to hold with certainty that  

any  extra  judicial  confession  in  fact  was  made  by  the  

appellant.  This state of evidence leaves us in doubt and we  

are  of  the  opinion   that  the  witnesses  of  the  extrajudicial  

confession do not inspire confidence and merely on the ground  

of recovery of weapon of crime at the instance of the appellant,  

it shall be unsafe to sustain the conviction of the appellant.  

Accordingly, we grant appellant the benefit of doubt.

12. In the result, we allow the appeal, set aside the impugned  

judgment  of  conviction  and  sentence  of  the  appellant.  

Appellant is in jail, he be released forthwith, unless required in  

any other case.

            ………..………………………………….J.                 ( HARJIT SINGH BEDI )

                            ...…..……………………………………J.                                      (CHANDRAMAULI KUMAR  

PRASAD) New Delhi, July 23, 2010.

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