^ ^ HSGH COURT OF CHHATTISGARH. BILASPUR c D.B.: HON'BLE SHRI RAJEEV GUPTA. CJ. & HON'BLE SHRI SUNIL KUMAR SSNHA. J. Criminal Appeal No. 17 of 1994 Moodh Maseeh Vs. State of Madhya Pradesh (Novi/ State of Chhattisgarh) t. jyDGMENT Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA l<^--^- J ^^'y- Sd/- Chief Justice Post for Judgment : /^- /02/2011 Sd/- Sunil Kumar Sinha Judge ^:-"~ ^ (C^ ^.. ^s ^ H1GH COURT OF CHHATTISGARH AT BILASPUR D.B.: HON'BLE SHRI RAJEEV GUPTA. C.J. & HON'BLE SHRi SUNIL KUMAR SSNHA. J. CRJMiNALAPPEALNO.17/1994 APPELLANT RESPONDENT Moodh Maseeh, S/b Sri Pabems, aged about 25 years, R/o . Village Cheraghoghar P.S. Kansabale District Raigarh Versus State of Madhya Pradesh (Now State of Chhattjsgarh), Through S.H.O. Kansabale District Raigarh CRIIVIINAL APPEAL UNDER SECTION 374(21 OF THE CODE OF CRSMINAL PROCEDURE Appearance: Ms. Sharmila Si'nghaj, Counsel for the appeliant. Mr. J.A. Lohani, Panel Lawyerforthe State. JUDQEMENT ((4-.02.2011) The foliowing judgment of the Court was delivered by Sunil Kumar Sinha. J. (1) This appeal is directed against the judgment dated 30.11.1993 passed in S.T. No.186/1992 by the Additional Sessions Judge, Jashpurnagar. By the impugned judgment, the appellant has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life. (2) The facts briefly stated are as under: Five accused persons namely Moodh Maseeh (appellant), Vimal, Sunil Tirki, Amrit Tirki and Ignesh were tried for the offence punishable under Sections 302 & 201 IPC. The allegations are that on 11 .04.1992, '..^" ..•^" 1 ^^^^" CRJMINA?- APPEAL N0.17/1994 c. L. accused - Moodh Maseeh (appellant) and Ignesh committed murder of deceased- Nainsukh and thereafter, burnt his body. The allegations against other three accused persons are that they participated in carrying the dead body to a remote area and burying the same, thereby, helping the first two accused persons name!y Moodh Maseeh and Ignesh to cause disappearance of the evidence of the said offence. The case of the prosecution is that deceased-Nainsukh was missing since 11.04.1992. His wife namely Urmila Bai (PW-1) lodged the report of absconsion on 24.04.1992. On investigation, it reveaied that on 11.04.1992, two accused persons namely Moodh Maseeh (appellant) and Ignesh had committed murder of the deceased; they had burnt the dead body and thereafter, it was buried in the forest area with the help of other three co- accused persons. On 11.04.1992, appellant -Moodh Maseeh made extra judiclal confession before Urmila Bai (PW-1), Kaleb Tigga (PW-3) and Shantiprakash (PW-5). During the course of investigation, the appellant was taken into custody on 05.05.1992. He gave memorandum statement (Ex.P/9) under Section 27 of the Evidence Act and the dead body of the deceased, in burnt condition, was recovered at the instance of the appellant videseizure memo- Ex.P/10. The prosecution came with two sets of evidence, first, the extra judicial confession made by the appeilant before the above witnesses and second, the seizure of the dead body at the instance ofthe appeilant. The learned Sessions Judge relying on the testimonies of Kaleb Tigga (PW-3) and Shantiprakash (PW-5) relating to extra judicial confession and aiso relying on the fact that the dead body was recovered at the instance of the appeilant, convicted the appellant as •^.IW&^.W,^^,^^^ "?T ^.^1 CRlMiNALAPPEAL N0/17/1994 aforementioned. However, the other accused persons were acquitted of the charges framed against them. ^- (3) Ms. Sharmila Singhai, learned counsel appearing on behalf of theappellant argued that the eyidence relating to extra judicial confession was shaky and unreliable; it was not established that the appetlant gave discovery statement before the witnesses relating to the dead body; it was not established that the dead body was recovered at the instance of the appellant; even the identity of the dead body was also not properly established, therefore, the conviction based on such evidence cannot be sustained. (4) On the other hand, Mr. J.A. Lohani, learned counsel appearing on behaif of the State, opposed these arguments and supported the judgment passed by the Sessions Court. c (S) We have heard leamed counsel for the partiesat length and have also perused the records of the Sessions Case. (8) Admittedly there are no eye-witnesses and the case of the prosecution is based on two circumstances, first, the extra Judicial confession made by the appellant before the witnesses and second, the seizure of the dead body at the instance of the appellant. . So far as the circumstance of extra judicial confession is concemed, the prosecution has examined 3 witnesses namely Urmiia Bai (PW-1),Kaleb Tigga (PW-3) and Shantiprakash (PW-5). The learned Sessions Judge has not relied on the evidence of Urmila Bai (PW-1). The Sessions Judge has observed that Urmila Bai only said that the appetlant came to her house and said to save him. Further, there were also omissions in her case diary statement and police report. Kaleb Tigga (PW-3) deposed that on 11.04.1992, deceased -Nainsukh had visited his house in the \ 4 CRSIVIJNAL APPEAL N0.17/1994 morning hours. Lateron, at about 1:30p.m., the appeliant came to his house and said that he has killed the deceased. The appellant threatened him by saying not to disclose this fact to anybody, otherwise, he will kill him. In the cross- examination, he admitted that there was a dispute between the famities of the appellant and the deceased on the pretext of witchcraft (Jadu Tona) and relations between both the families were inimical. He very clearly admitted that on account of the above inimical relations between the two families, the wife of the deceased Urmila Bai (PW-1) has falsely implicated the appeltant in the present crime. We further note that the alleged extra judicial confession was made before him on 11.04.1992, whereas, his 161 statement was recorded on 06.05.1992. He admitted in the last part of the cross-examination that he had not disclosed these facts to anybody prior to the date of disclosure before the Police i.e. on 06.05.1992. Shantiprakash (PW-5) simply deposed that on the fateful day, at about 2:00 p.m., the appetlant came to his house and said that he has killed the deceased. In the cross- examination, he admitted that he did not lodge the report to the police. We find that his 161 statement was also recorded on 06.05.1992. if these two witnesses knew that the appellant had committed murder of the deceased on account of his alieged extra judicial confession on 11.04.1992, there was no reason as to why they would not disclose the above fact to the wife of the deceased Urmita Bai (PW-1), who lodged the report of absconsion on 24.04.1992. The conduct of these witnesses that they did not disclose these facts for a very long period make their evidence suspicious. (7) On appreciation of entire evidence of the above witnesses, we are of the view that it was not safe to rety on the evidence of these two witnesses relating to the extra judicial ^ ^. "•-., ^'^. II -- •.«.. 'a. 1 § ••^'..'—^LI I, ". Vff "tefii^f CRIMINAL APPEALNO.17/1994 confession allegedty made by theappellant before them on 11.04.1992. (8) So far as the evidence of disclosure by the appellant vide memo dated 05.05.1992 (Annexure P/9) isconcemed, we find that both the witnesses of disclosure memo namely Ramsewak Sai (PW-8) and Prabhakar Sai (PW-9) have turned hostile and have not supported the case of the prosecution. The evidence of Investigating Officer (PW-13) is also not firm on the point of disclosure statement made by the appellant. Therefore, it was not established that in fact, the dead body of the deceased was recovered on the disclosure statement made by the appellant underSection 27 ofthe Evidence Act. (9) Apart from the above, we also find that the identity of the dead body has also not been properly established. T.R. Rajput (PW-13) deposed that he prepared the recovery memo (Ex.P/10) of the dead body. It does not come in his evidence that the dead body, which was recovered on 05.05.1992, was that ofthe deceased. The 5 witnesses of inquest (Ex.P/15) are Prabhakar Sai (PW-9), Ramsevak Sai (PW-8), Sahu Ram, llias an Ujit Ram. Out of the above 5 witnesses, only two witnesses namely Prabhakar Sai (PW-9) and Ramsevak Sai (PW-8) have been examined. They have turned hostile. None of the other witnesses of inquest has been examined. The case of the prosecution is that almost entire dead body was burnt and itwas in highly decomposed condition. Even the skull and other bones were detached. The incident took place on 11.04.1992 and the dead body Was recovered on 05.05.1992. It is for this reason, the witnesses were not able to identify the dead body and the formality relating to identification was completed on the basis of some burnt clothes etc. said to be that of the deceased. Therefore, the evidence relating to identity of the dead body was also insufficient. 't .'^ if "%. ^•^'fr^^" CRIMINALAPPEAL N0.17/1994 (10) Shanti L. Ekka (PW-10) is the son of the deceased- Nainsukh. He was examined to prove the motive. He stated that on account of suspicion of witchcraft, his father was murdered. He turned hostile. In the cross-examination, he very categorically admitted that it is true to say that when it could not be known as to who committed the murder of his father, then, the Viilage Kotwar, Ex-Sarpanch and other persons oppressively took the name of the appellant and falsely implicated him in this crime. (11) For the foregoing reasons, were are unable to sustain the conviction of the appeilant on the above sets of circumstantial evidence and the conviction and sentence awarded to the appetlant deserve to be set aside. (12) Accordingly, the appeal is atlowed. The conviction and sentence awarded to the appellant under Section 302 IPC are set aside. The appellant is acquitted of the charges framed against him. It is stated that the appellant is on bail. His bail bonds are cancelled and surety stands discharged. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge shyna