Vinod Kumar Mishra vs State Of Madhya Pradesh

Rajeev Kumar Dubey, J

This criminal appeal has been filed under Section 374 (2) of the Code of Criminal Procedure, against the judgment dated 11/09/09 passed by

Additional Sessions Judge, Mauganj, Distric Rewa in Sessions Trial No.52/2009, whereby learned A.S.J. found the appellant guilty of the offences

punishable under Section 302 of the IPC and sentenced him to undergo life imprisonment with fine of Rs.1,000/-, with default stipulations.

Brief facts of the case which are relevant for disposal of the case are that the appellant was resident of village Karaudha, whose marriage was

solemnized with deceased Kusum @ Baby somewhere in the year 2002 and thereafter deceased Kusum @ Baby started living with the appellant at

village Karaudha. Out of the wedlock with the appellant, two children son Atul and daughter Pushpanjali (PW/9), were also born to deceased, who

were aged about 2½ years and 5 years respectively at the time of incident.

After the marriage appellant used to beat deceased Kusum @ Baby. On 29/10/2008 at around 10:30 P.M. appellant assaulted deceased Kusum @

Baby by axe on her head and neck, due to which she died and thus the appellant murdered her wife Kusum @ Baby. On the next day i.e. 30/10/08

Aamlesh Prasad Pandey (PW/12) lodged the report (Ex.P/21) of the incident at Police Chouki, Raghuram Ganj, which was written by L.P. Patel

(A.S.I.) (PW/6), who sent it for original registration at Police Station Laura, District Rewa, where Crime No.162/08 was registered against the

appellant for the offence punishable under Section 302 of the IPC. L.P. Patel (PW/6) investigated the crime and during investigation he went to the

spot and prepared spot map (Ex.P/6) and also seized simple and blood stained soil and blood stained bed sheet from the spot and prepared seizure

memo (Ex.P/12) and also prepared inquest memo of dead body of deceased Kusum @ Baby (Ex.P/1). He also took photos of the dead body of

deceased Kusum @ Baby (Ex.P/11 & P/12) and sent her dead body for postmortem alongwith an application (Ex.P/13) to C.H.C., Mauganj, where

Dr. Shyam Sharma (PW/7) conducted autopsy of dead body of deceased Kusum @ Baby and gave postmortem report (Ex.P/19). On 30/10/08 L.P.

Patel (PW/6) arrested the appellant and prepared arrest memo (Ex.P/17). On interrogation appellant gave information regarding concealment of axe.

On that he prepared memorandum (Ex.P/8) and also seized one axe at the instance of appellant and prepared seizure memo (Ex.P/9). He also

recorded the statements of prosecution witnesses and sent all the seized articles for chemical examination to Forensic Science Laboratory, Sagar

through S.P. Rewa alongwith draft (Ex.P/18). From Forensic Science Laboratory, Sagar chemical examination report (Ex.P/22) was received, in

which it is mentioned that blood stain was found on the seized axe. After investigation Police filed charge-sheet against the appellant before Judicial

Magistrate, First Class, Rewa, who committed the case to the Court of sessions, where from that charge-sheet ST. No.52/09 was registered.

Learned Additional Sessions Judge, Rewa framed charge against the appellant for the offence punishable under Section 302 of the IPC. The

appellant abjured his guilt and took the defence that he is innocent and has falsely been implicated in the offence. However, after the trial learned

Additional Sessions Judge found the appellant guilty for the offences punishable under Section 302 of the IPC and sentenced him as aforesaid.

Learned counsel for the appellant submitted that the whole prosecution case is based only on the extra judicial confession of appellant before Tejbali

Mishra (PW/1) and statement of so called eyewitness Pushpanjali (PW/9) daughter of appellant, but the statement of Tejbali Mishra (PW/1) regarding

extra judicial confession of appellant is not trustworthy. In his Court statement he deposed that on the following day of incident appellant came to him

and told that the other night i.e. on 29/10/2008 at 10:30 P.M. he had murdered his wife Kusum @ Baby by assaulting her by axe, while in his case

diary statement (Ex.D/1) it is mentioned that appellant came to this witness soon after the incident and told that he had murdered her wife, while in his

Court statement he denied from that fact, so his statement regarding extra judicial confession of appellant before him becomes doubtful. Even

otherwise there is no reason to admit his guilt by the appellant before this witness, so otherwise also his statement is not believable. Likewise,

Pushpanjali (PW/9) in her examination-in-chief deposed that the appellant assaulted her mother Kusum @ Baby, but in her cross-examination she

clearly admitted that on the fateful night she slept along with her brother in another room, while her mother slept in other room. She did not see the

appellant assaulting her mother. So from her cross-examination it is clear that she also did not see the incident. Apart from it prosecution also

produced circumstantial evidence regarding seizure of one axe from the possession of the appellant, but that seizure was doubtful. Even otherwise in

the FSL report (Ex.P/22) only it is mentioned that seized axe contained blood stains, but it is not clear if they were of human blood. So only on that

basis also it cannot be assumed that the appellant murdered his wife Kusum @ Baby. He further submitted that from the statements of prosecution

witnesses, it is also not proved that appellant was at home with his wife at the fateful night. So no adverse inference can be drawn against appellant

only on the basis that deceased Kusum @ Baby who was wife of appellant was murdered in appellant’s house. Learned trial Court without

appreciating all these facts wrongly found the appellant guilty for the aforesaid offence.

On the other hand learned counsel for the respondent/State submitted that from the statement of Tejbali Mishra (PW/1) it is clearly proved that at

the time of incident appellant was at home with his wife and also admitted his guilt before this witness. This fact is also proved from the statement of

his daughter Pushpanjali (PW/9) that on the fateful night appellant was present at home with his wife and he murdered his wife inflicting her injury by

axe. Although, in the FSL report it is not mentioned that human blood was found on the axe, but it is mentioned that blood was found on the axe and

appellant did not give any explanation regarding those stains of blood, found on the axe, which was seized by the Police at the instance of appellant.

From the prosecution evidence, it is also proved that on the fateful night appellant was at home with his wife and his wife Kusum @ Baby was

murdered. He did not give any explanation regarding incident, so learned trial Court did not commit any mistake in finding the appellant guilty for the

aforesaid offence.

Point of determination in this appeal is whether the conviction and sentence awarded by the trial Court to the appellant under Section 302 of the

IPC are liable to be set aside for the reasons stated in the memo of appeal and argued before this Court.

On the point that on 29/10/08 at around 10:30 P.M. deceased Kusum @ Baby died at appellant’s house situated at village Karaudha and her

death was culpable homicide amounting to murder, L.P. Patel (PW/6) deposed that on 30/10/08 he was posted as A.S.I. at Police Chouki Raghunath

Ganj. On that day Amlesh Prasad Pandey (PW/12) lodged the report stating that appellant murdered his wife Kusum @ Baby inflicting her injuries by

axe. On that he lodged the report (Ex.P/7) and thereafter went to the spot and seized simple and blood stained soil and blood stained bed sheet from

the spot and prepared seizure memo (Ex.P/10) and before the panch witnesses he prepared inquest memo (Ex.P/1) of the dead body of deceased.

Her throat was cut. On the point that the dead body of deceased Kusum @ Baby wife of appellant was found in appelleant’s house, his statement

is also corroborated from the statement of Tejbali Mishra (PW/1), Nirmala (PW/ 2), Kamta Prasad (PW/ 3) and Anjani Kumar Pandey (PW/ 4). L.P.

Patel (PW/6) further deposed that he also sent dead body of Kusum @ Baby for autopsy to CHC, Mauganj alongwith an application (Ex.P/13) and

Dr. Shyam Sharma (PW/7), who conducted the autopsy of the dead body of deceased Kusum @ Baby deposed that on 30/10/08 he was posted as

Medical Officer at CHC, Mauganj and conducted autopsy of dead body of deceased. In the postmortem he found that rigor mortis was present on the

dead body. He also found one incised wound sized 8.4 x 1/2 cm. on left part of his neck. Due to that injury muscles tendons and vessels were also cut

and also found one incised wound size 8 x 2 x 1 cm. on left side of face, in which also muscles were cut. In the internal examination he found that

trachea was cut. He further deposed that in his opinion deceased Kusum @ Baby died due to shock, which was caused due to excessive bleeding

from the injury sustained by her in the incident and duration of death within 24 hours since postmortem. His statement is also corroborated from the

report (Ex.P/19) given by him. On this point, appellant did not give any important challenge to these witnesses in their cross-examination, so there is no

reason to disbelieve their statements in this regard. From the statement of Shyam Sharma (PW/7) it is clear that the deceased sustained injury on her

neck and head, which are vital parts of the body by sharp cutting object, which clearly shows the intention of assailant. So from the statement of these

witnesses it is clearly proved that deceased Kusum @ Baby died on 29/10/08 at around 10:30 P.M. at appellant’s house situated at village

Karaudha due to the injuries sustained by her in the incident and her death was culpable homicide, which amounts to murder.

On the point that whether appellant murdered his wife Kusum @ Baby, although prosecution also produced Pushpanjali (PW/9) daughter of

appellant as eyewitness of the incident. But learned trial Court did not find her statement reliable. Pushpanjali (PW/9) in her examination-in-chief

deposed that on the date of incident her mother Kusum @ Baby was sleeping with her and her father assaulted her by tangi, due to which she died,

but in her cross-examination she deposed that on the fateful night she was sleeping along with her brother in the room situated at the north corner of

the house and her mother was sleeping in another room. She did not see her father assaulting deceased Kusum @ Baby. Therefore, the fact of

Pushpanjali being witness of incident becomes contradictory and it is difficult to ascertain that which part of Pushpanjali's (PW/9) statements is true.

So on the point that she saw her father assaulting deceased Kusum @ Baby her statement cannot be believed. Learned trial Court rightly held that

from the cross-examination of Pushpanjali (PW/9) it appears that she did not see the incident. Prosecution did not produce any other witness who had

seen the incident.

Learned trial Court found appellant guilty for murdering his wife deceased Kusum @ Baby on the basis that firstly appellant had admitted his guilt

before Tejbali Mishra (PW/1), secondly one blood stained axe was seized from his possession and finally the deceased who was the wife of applicant

was murdered in his house and at the time of incident she was living with him in his house and appellant did not give any defence that he was not at

home at the time of incident.

If we examine the evidence regarding extrajudicial confession of appellant, Tejbali Mishra (PW/1) deposed that on the following day of the

incident, as he woke up in the morning, he came to know the fact that Kusum @ baby had died. Thereafter, appellant told him that he had cut her wife

by Tangi (Axe). Although that fact is not mentioned in his case diary statement (Ex.D/1). It is mentioned that on the fateful night soon after the

incident, appellant came to him and told him that he had murdered her wife and he also denied giving such statement to the Police. But there is no

contradiction in his statement on the point that appellant had admitted his guilt before this witness. Contradiction is merely on the point that at what

time did appellant admit his guilt before this witness. So on the point that appellant admitted his guilt before this witness, there is no reason to disbelieve

his statement. Even appellant in reply of question No.4 of his examination under Section 313 of Cr.P.C. stated that he only informed Tejbali that his

wife had died which shows that appellant admitted the fact that he went to this witness for giving information. Even, in the cross-examination of this

witness appellant suggested that appellant started to accuse himself upon seeing his wife dead. which also shows that appellant admitted the fact that

he admit his guilt before this witness. So there is no reason to disbelieve his statement.

L.P. Patel (PW/6) deposed that 30/10/09 he arrested appellant before panch witnesses and prepare arrest memo (Ex.P/17). Applicant informed

that he had concealed the Axe in a room situated in the west corner of his house. On that he prepared information memo (Ex.P/8) infront of Panch

witnesses and also seized one axe from his possession and prepared seizure memo (Ex.P/9). In this regard his statement is also corroborated by the

statement of Bhajan Namdev (PW/13) independent witness of the proceedings. There is no important contradiction in the statement of L.P. Patel

(PW/6) regarding seizure of axe from the possession of appellant. Which also corroborated from the statement of Bhajan Namdev (PW/13)

independent witness of the proceedings. So there is no reason to disbelieve his statement on the point. In the FSL report (Ex.P/22) it is mentioned that

blood stain was found on that axe (Article-E).

Although there is no reliable evidence on record to show that appellant was at home at the time of incident. But from the prosecution evidence as

discussed above it is clearly proved that on the following day of the incident i.e on 30/10/2008 appellant admitted to Tejbali Mishra (PW/1) that he had

murdered his wife and on the same day one blood stained axe was also seized from his possession by the police.

Regarding extra-judicial confession Hon'ble Apex Court in the case of Sahadevan & Anr vs. State Of T.Nadu, (2012) 6 SCC 403 after

considering its numerous decisions has laid down following principles:-

(i) The extra-judicial 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 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.

(v) For an extra-judicial 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 lawâ€​.

Hon'ble Apex Court in the case of Baskaran & Anr vs. State Of Tamil Nadu, (2014) 5 SCC 765 again held that extra-judicial confession can be

relied upon only if the same is voluntary and true and made in a fit state of mind. The value of the evidence as to the confession like any other

evidence depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the

reliability of the witness who gives the evidence.

From the above principle laid down by the Hon’ble Apex Court it is amply clear that the conviction can also be recorded on the basis of extra-

judicial confession, but in that case it must be voluntary and should be truthful and trustworthy.

If we examine the present case in the light of above mentioned principles laid down by the Hon’ble Apex Court, from the evidence it appears

that appellant admitted his guilt before Tejbali Mishra (PW/1) on the following morning. There is no infirmity in the statements of Tejbali Mishra

(PW/1) in this regard. There is no evidence on record which shows that this witness was having any animosity with the appellant or had any other

reason to falsely implicate appellant in the crime. From his statements it is clearly proven that on the following morning appellant admitted before him

that he had murdered his wife. There is no evidence on record which shows that appellant admitted his guilt due to any inducement, threat or promise.

That extra judicial confession also corroborate from the circumstantial evidence that on the next day of the incident i.e. 30/10/09 Police also seized

one blood stained axe from the possession of the appellant. According to postmortem report the injuries sustained by the deceased were caused by the

sharp edge weapon. Axe is also a sharp edge weapon. Appellant did not give any explanation that how blood stain was found on the Axe which was

seized by the Police from his possession from his house. So in the considered opinion of this Court conviction of appellant for the crime can be based

solely on the basis of said extra-judicial confession of appellant.

Learned trial Court did not commit any mistake in relying on the extra-judicial confession of appellant and finding him guilty for the offence

punishable under section 302 of IPC for murdering his wife Kusum @ Baby.

Hence, appeal filed by the appellant/accused stands dismissed.

The appellant, who is in the custody shall serve the remaining part of the sentence, in accordance with law. The period already undergone shall be

set off from the period of substantive jail sentence.