Sukada Vs. State of M.P. (Now Chhatisgarh)  INSC 521 (23 July 2010)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1243
OF 2006 PODYAMI SUKADA .... APPELLANT Versus
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 2 First Additional
Sessions Judge, Bastar in Sessions Trial No.45 of 2000.
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.
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 3 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
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.
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.
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.
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:
"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."
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.
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.
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.
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 7 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.
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 8 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.
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 9 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.
we grant appellant the benefit of doubt.
In the result, we allow the appeal, set aside the impugned
judgment of conviction and sentence of the appellant.
is in jail, he be released forthwith, unless required in any other case.
...................................................J. ( HARJIT
SINGH BEDI )
July 23, 2010.