w~ 2g A HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon’ble Shri Raieev Gupta, C.J. & Hon’ble Shri SUnil Kumar Sinha, U. Criminal Appeal No. 291 of 1992 Lalanram Vs. ' ; State of M.P. (Now State of Chhattisgarh) JUDGMENT For consideration ; J Sd/— Sunil Kumar Sinha Judge HON BLE SHRI JUSTICE RAJEEV GUPTA 3 g /08/2b1o 9. Post for Judgment / /09/2o10 e- Sd/— r Judge 3W /201O $unil Kuma Sinha‘ ’ j i} Sd/- Chief Justice ,“ / @ ’ ’ Laianram son of Fakeerram, aged about 32 years, resident of Rai Kona, .Police Station Jashpurnaar, District Raigar (M.P.) (Now Chhattisgarh) Versus tate of MP. a '(Now Stat of hhattisgarh) Thh n e O - roug Statio Hous fficer, Police Stion Jashpurnagar, District Raigarh Mr. V.R.S. arihar, Advocate for the appellant. Mr. Akhil Agrawal, Panel Lawyer for the State. 1 .o9.2o10) w Following udgment of the Court was delivered by Sunil Kumar Sinha, J. (1)‘ Appellant— Lalanram stands convicted u/s 302 IPC and sentenced to undergo imprisonment for life by the Additional Sessions Judge, Jashpurnagar inSessions Trial No. 13/91 on 17th of January, 1992. Trx HIGH COURT OF CHHATTISGARH BILASPUR CORAM: Honble Shri Raieev Gupta, C.J. & Honble Shri Sunil Kumar Sinhag J. Criminal Appeal No. 291 of 1992 APPELLANT g h RESPONDENT S e C at (Criminal Appeal under Section 374 (2) of The Code of Criminal Procedure, 1973) Appearance: P ( JUDGMENT j 2 Criminal Appeal No. 291 of 1992 (2) The facts, briefly stated, are as under:- Deceased— Jamnibai was the wife of the appellant. She was residing with the appellant in village Rai-kona. The case of the prosecution is that the appellant was suspecting that lshe was a tonahi (a lady who plays witchcraft) and on this 1 account, the appellant assaulted her by club (danda) at 5-6.00 p.m. on 2.12.90. She received injuries on her head and died ‘ on the spot. Her dead body was found in verandah of their ; house.‘ The further case of the prosecution is that thereafter : the appellant visited to the houses of Shankar Yadav (PW-1), Guru (PW—5) and Rakhu (PW-6) and made extra-judicial confession before them. Shakar Yadav (PW-1) lodged the First Information Report (EX.-P/1) on 3.12.90. The lnvestigating Officer reached ‘ to the scene of occurrence, gave notice to the Panchas and prepared inquest (Ex.-P/8) on the body of the deceased. The dead body of the deceased was sent for its post—mortem examination which was conducted by Dr. D.C. Mahadik (PW- 11), who prepared his report Ex.-P/9. There was injury on the skull and there were fractures of occipital and parietal bones. The Autopsy Surgeon opined that the cause of death was coma and syncope as a result of injury to the brain and it was homicidal in natre; d‘ On 3.12.90 at about 4.00 p.m., the appellant was taken into custody and his memorandum statement(Ex.—P/4) u/s 27 of the Evidence Act was recorded and a blood stained Club was seized at his instance from an, open place at the side of the road by seizure 'Fnemo Ex.—P/5. The seized articles were sent for chemical examination to Forensic Science Laboratory, Sagar, from where, a report Ex.—P/16 was received. According to the F.S.L. report, blood stains were l l l _i l M T"\ u 3 ‘ \ 7/“, CriminaIA eal No.291 of1992 6? found on the club and hairs of the deceased. The hairs of the deceased and pieces of hairs found on danda were also examined and it was found that both were similar in morphology and were that of one and the same person. On trial, the prosecution relied on two sets of evidence. One - extra-judicial confession made by the appellant before the above three witnesses namely Shankar Yadav (PW-1), Guru (PW-5) and RakKhu-(PW-6) and the other — seizure of club at the instance of the appellant and Serologist report wregarding presence of blood and the hairs of the deceased on the club. The learned SessiOns COurt did not rely of the testimony of Shankar Yadav '(PW-1). However, it relied on the testimony of Guru (PW—5) and held that the appellant made extra-judicial confession before this witnes‘s. The Sessions Court further reliedon theseizuremadexat the instance of the appellant and on the basis of above circumstantial evidence, convicted and sentenced the appellant as aforementioned. (3) Mr. V.R.S. Parihar, learned counsel appearing on behalf of the appellant, argued that the evidence of extra-judicial confession was not reliable on account of many discrepancies. He took us to the evidence of above three witnesses. He also argued that the seizure of the club at the instance of the appellant was highly suspicious as the seizure memo does not bear the signature or thumb impression of the appellant and the witness of seizure namely Shivaruram (PW- 9) deposed that the club‘was found earlier and thereafter the appellant was interrogated. G l l 4 Criminal Appeal No. 291 of 1992 (4) Mr. Akhil Agrawal, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (5) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (6) The Supreme Court held in many cases that if the evidence about». extra-judicial confession comes from the mouth of witness/witnesses who appear to be unbiased not even remotely inimical to the accused and in respect of whom nothing Is brought out which may tend to Indicate that he may have a motive for attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by. the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility if it passes the test, the extra-judicial a confession can be accepted and can be the basis Qf a conviction. (7) As we have already stated that out of three witnesses of extra- judicial confession, Shankar Yadav (PW-1) has been held to be unreliable by the Sessions Court and there is no discussion about the evidence of Rakhu (PW-6). The Sessions Court has relied on the testimony of Guru (PW-5) holding that the appellant made eXtra- judicia‘l confession before him. Guru deposed in his examination-in- ‘Ix 5 Criminal Appeal No. 291 of 1992 69 chief that when he was returning from the market, he met the appellant in the house of Shankar Yadav (PW-1). The appellant stated that he has killed his wife. in the cross-examination, he categoricaliy admitted that when he met with the appeiiant, he stated him that his wife has died, and except the above, he did not teli anything to him. After such deposition, the Sessions Court asked a question to him about this, on which, he deposed that the appellant had stated that hé had killed his wife. However later on, he again deposed that the appeiiant did not tell him as to who kilied his wife. The learned Sessions Judge has completely ignored this portiOn of evidence of PW—5 and has wrongly reliedon his testimony for holding that the appellant made extra—judicial confession before this witness. We have also gone through the evidence of Rakhu (PW-6), who also admitted in his cross~examination that the appellant did not tell them that he has killed his wife by club. ln appreciation of entire evidence relating to extra-judicial confession, we find that it was not established by the prosecution that the appellant made extra-judicial confession before jhese witnesses. Therefore, the finding of the Sessions Court in this regard cannot be sustained. (8) l So far as seizure of club at the instance of the appellant is concerned, the disclosure statement of the appellant recorded u/s 27 of the Evidence Act (Ex.-P/4) islhighly suspicious. We note that there is no signature of the appellant in the discovery memo ‘i\ 6 prepared by the Investigating Offcer u/s 27 of the Evience Act. in i d Jackaran Singh Vs State of Punjab, AIR 1995 SC 2345, —- ‘ the S e re upreme Court held that “Th absence of the signatus or the thumb impression o an accused on the disclosur statement f‘ e corded u/s 27 o the Evidenc Act detracts materiaily from the re f e authenticity and the reliability of the disclosure statement.” Apart ro the above, out of tw Witnesses of disclosure statement fm o Shivguram (PW- — only vvitness examined) admitted in his cross- examination that the club was searched by the police. The appellant gave thé club to the police. Thereafter the police‘asked for cloths and g‘amcha, then the seizure memo of club was made and then the seizure of cloths was made and ’after‘all this, the appellant was interrogated which was reduced into writing. This creates a doubt on the seizure of club at the instance of the appellant. When the club was already in possession of the police, there was no question of its discdvery at the instance of the appellant. Therefore, in view of the above evidence of Shivaruram (PW-9) and also in view of the fact that the discovery memo did not bear thejsignature/thumb impression of the appellant, the reliability of the said memo becomes doubtful and it was not safe to rely on the above circumstance for recording the conviction of the appellant u/s 302 IPC. (9) - Mr. Akhil Agrawal, learned counsel for the State, has also argued that the wife of the appellant died homicidal death and her Criminal Appeal No. 291 of 1992 a 9 7 Criminal Appeal No. 291 of 1992 @ dead body was found in verandah' of the house of the appellant, therefore, in absence of any cogent and reliable explanation, the appellant would be responsible for her homicidal deathv We are ’ unable to accept the said argument in the facts and circumstances of the case. lt was not a case in which the incident took place in the ac n the the hsband and wife both were'present in the house and if one of u them dies then the other has to explain. It was a day time incident t and e presence of the appellant at the time of incident in his house has ot a‘t all been estblished by the proseCUtion. Moreover, the verandah of the house was accessible to all, therefore, a possibility of a third party inteence cannot be fully ruled out in this case. erfr privy of the house i night when presumption would be that (10) For the foregoing reason, the appeal is allowed. The conviction and sentence awarded to the appellant u/s 302 IPC are set-aide. The appellant is acquitted of the charges framed against ram th n a s him. it is stated that the appellant is, in jail onaccount of certain default committed by him..He be set at liberty forthwith, if not required in any other case. ‘L ,‘xi‘ r Sc“- Sd/ Sc“- Ch, r lef Justlce ‘- . Sunil Kumar Sinha ’ ‘ Judge