PODYAMI SUKADAversusSTATE OF M.P. (NOW CHHATISGARH)

                      [2010] 8 S.C.R. 964


A                     PODYAMI SUKADA
                               V.
             STATE OF M.P. (NOW CHHATISGARH)
              (Criminal Appeal No. 1243 of 2006)

                         JULY 23, 2010
B
    [HARJIT SINGH BEDI AND CHANDRAMAULI KUMAR
                    PRASAD, JJ.]

       Penal Code, 1860 - s. 302 - Homicidal death of mother
C by son - Extra-judicial confession made by son in presence
  of witnesses and recovery of weapon at his instance -
   Conviction and sentence uls. 302 by courts below - On
  appeal, held: Witnesses to the extra judicial confession
  declared hostile by prosecution, thus does not inspire
D confidence - It cannot be held with certainty that any extra
  judicial confession in fact was made by son-accused -
   Conviction cannot be sustained merely on the ground of
  recovery of weapon of crime at the instance of accused -
   Thus, accused granted the benefit of doubt - Order of
E conviction and sentence set aside.

      According to the prosecution case, the appellant
  caused death of his mother with a burnt stick. Thereafter,
  he made extra-judicial confession in the Panchayat in the
  presence of witnesses-PWs. 1 to 4 and the weapon of
F crime was recovered at his instance. However, the
  prosecution declared the said witnesses hostile. The
  courts below convicted the appellant u/s. 302 IPC and
  imposed punishment of life imprisonment. Hence the
  appeal.
G
      Allowing the appeal, the Court

        HELD: 1.1 The evidentiary value of extra judicial
    confession depends upon trustworthiness of the witness

H                              964
     PODYAMI SUKADA v. STATE OF M.P. (NOW             965
                CHHATISGARH)

before whom confession is made. Law does not                 A
contemplate that the evidence of an extra judicial
confession should in all cases be corroborated. It is 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     B
to be decided in the facts and circumstances of each
case. [Para 10] [969-G-H; 970-A]
      1.2 In the instant case, all the witnesses to the extra
judicial confession have been declared hostile by the
prosecution. It is true that the evidence of the hostile C
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. The PW 1, PW D
2, PW 3 and PW 4 in their evidence had stated that the
meeting was called in the village after the death of the
deceased, but PW 2 and PW 4 have nowhere stated that
extrajudicial confession was made by the appellant
admitting that he had killed the deceased. PW 1 and PW E
3 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 F
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. The evidence of both the prosecution G
witnesses is slippery and 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 this Court in doubt and the witnesses
 of the extrajudicial confession do not inspire confidence H
    966      SUPREME COURT REPORTS                [2010] 8 S.C.R.


A   and merely on the ground of recovery of weapon of crime
    at the instance of the appellant, it would be unsafe to
    sustain the conviction of the appellant. The appellant is
    granted the benefit of doubt. The impugned judgment of
    conviction and sentence of the appellant is set aside.
s   [Paras 9, 11 and 12] [969-C-F; 970-D-E; 970-F]
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 1243 of 2006.

         From the Judgment and Order dated 22.06.2005 of High
c   Court of Chhatisgarh at Bilaspur in Criminal Appeal No. 936
    of 2000.

          D.N. Goburdhan and P. Bagchi for the Appellant.
        Atul Jha and Dharmendra Kumar Sinha for the
D   Respondent.
          The Judgment of the Court was delivered by
          C.K. PRASAD, J. 1. This appeal, by grant of leave arises
    from the judgment and order dated 22nd June, 2005 passed
E   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
F   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
G 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
H scolded him alleging that he wanders after consuming liquor
    PODYAMI SUKADA v. STATE OF M.P. (NOW                   967
 CHHATISGARH) [CHANDRAMAULI KUMAR PRASAD, J.]

which enraged him and he picked up a burning wooden plank          A
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
                                                                   8
Section 302 of the Indian Penal Code was registered against
the appellant. During the course of investigation inquest 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,    C
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    D
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          E
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.

     5. To bring home the charge, the prosecution has              F
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.         G
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     H
    968      SUPREME COURT REPORTS                  (2010] 8 S.C.R.


A 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
s 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
c         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.l.R. Ex.P.1 Recovery of weapon
D         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
E         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
F 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
G of crime at the instance of the appellant is tainted and hence,
  not enough to accept the case of the prosecution.

       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
H appellant.
     PODYAMI SUKADA v. STATE OF M.P. (NOW     969
  CHHATISGARH) [CHANDRAMAULI KUMAR PRASAD, J]

        9. There is no eye-witness of the crime and in order to       A
  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        B
  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    c
  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 present case
  PW.1 Madvi Rama, PW.2 Mangdu, PW.3 Aaita and PW.4                   D
  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    E
  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             F
  admitted that no such confession was made by the appellant.
  Thus there is complete sommersault in their evidence.

      10. Evidentiary value of extra ju.::icial confession depends
 upon trustworthiness of the witness before whom confession is        G
 made. Law does not contemplate that the evidence of an extra
 }udicial confession should in all cases be corroborated. It is 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        H
    970      SUPREME COURT REPORTS                     (2010) 8 S.C.R.

A   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
8
  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 ,
C 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
D both the prosecution witnesses are slippery and 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
E 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.

F       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.

    N.J.                                               Appeal allowed.