D.B.: HON’ H C (Barber), R/o Kenaban'dh, Amb, Sarguja (Ch Versus Through Aarakshi State of Chhattisgarh, Kendra, Am Sdl- S ‘\, ,7 V, 3 6 -0?-2003 H HIGH COURT OF CHHATTISGARH, BILA$PUB ON’BLE BLE SHRI SHRI S RAJEEV NIL KUMA GUPTA! C.J. & N RIMINAL APPEAL N0.457i2003 Rajesh Nai. S/o Anand Ram R SWHA J. Age 27 years, Occupa ika haitisgarh) pur, Thana Ambika tion — Nai pur, District bikapur, Dist (Chhattisgarh) iict sarguja JUDGMENT M unit Kumar Sinha Judge ON’BLE SHRI JUSTICE RAJEEV GUPTAW Chiefgusiiceu ‘ j ¢a ‘ x J Post for Judgmen NW Sd/- t .3/ 07-2008 “bk. SUNIL KUMAR SINHA Judge \V @ APPELLANT Rajesh Nai, $Io Anand Ram. Age 27 years. Occupation '-’ Nai (Batber), R/o Kenabandh, Ambikapur, Thana Ambikapur, District Sarguja (Chhattisgarh) Versus RE$PONDENT _ State of Chhattisgarh, Through Aarakshi Kendra, Ambikapur, District Sarguja (Chhattisgarh) Appearahce: ’ Shri B.D. Badgayan, Counsel for the appenant. $hri Akhil Mishra, Dy. Govt. Advocate for the State. ’L JUWMENT {31 .072008) The following judgment of the Court was delivered by Sunii Kumar Sinha, J. (1) e This appeal is directed against the judgment of conviction and order of sentence dated 17/3I2003 passed in Sessions Trial No.121i‘20m by the Fourth Additional Sessions Judge, Ambikapur. Sarguia (C.G.). whereby. the appellant was convicted under Section 302 of the IPC and sentenced to undergo imprisonment for life and to pay a tine of Rs.1000l-. in default of payment of fine to further undergo RJ. for 6 months. Criminal Appeal No.457/2003 (2) The brief facts are that in the intervening night of 27-28'" December 2000, appeilant - Rajesh Nai and deceased — Rajesh Chikwa were gambling in village — Kenabandh. During the course of gambling. some quarrel took place between them, as the deceased started demanding return of the amount from the appellant, which he had won in gambling. The allegations are that in retaliation to it. the appellant intilcted knife injuries to the deceased, who succumbed to those injuries. A Dehatinelisi (Ex.-P/12) was recorded in this regard and after giving notices to the Panchas (EXP/17), a Panchnama (Ex.PI23) of the dead body was prepared. Site plan was also prepared under Ex.-PI19 and a First information Report was registered under Ex.—PI16. During the course of investigation, one stone. one shawl and a bicycle;were seized under Ex.P/9 and plain soil and blood stained soil were seized under Ex.Pf7. In further investigation, a memorandum (Ex-PM) of the appellant - Rajesh Nai was recorded under section 27 of the Evidence Act and in pursuance of that, one Katar was seized under Ex.—P/6. The dead body of the deceased was sent for its postmortem examination and the postmortem report (EXP/13) was prepared, in which. following injuries were noticed by the Autopsy $urgeon. incised wound 3 cm x 1 cm on the left side of forehead longitudinal incised wound 3cm x 1 cm on the middle parietal line (longitudinal) . incised wound 3cm X1 cm obliquely placed near injury No.2 incised wound 4cm x 1 cm on the left ear with tear of complete pinna except outer border. Incised wound 4cm x 1 cm on the left parietal region. incised wound 3cm x 1 cm on the left temporo parietal region. 0301 kw N: \l ‘— incised wound 3 cm x ‘i cm on the left temporal region. 2'{ W @D Criminal Appeal No.45’7/2003 the Court of Chief Judicial Magistrate, Ambikapur, who in turn commmed the case to the Court of Sessions Judge, Ambikapur, from where it was received on transfer by the Fourth Additional $essions Judge, who conducted the triai and convicted and sentenced the appellant, as aforemention ed. (4) Admittedly, there is no eye-witness in this case and the conviction of the appellant is based upon three circumstances i.e.: His extra judicial confession before PW-2 - Geeta Bai, said to be corroborated by PW—3- Kanhai; Disclosure statement of the appellant regarding a knife, which he made while he was in custody and seizure of the knife in consequence thereof and; (3) Conduct of the appeliant that he left the village just after the incident and went to some other village. (5) So far as the homicidai death of the deceased is concerned, that has not been disputed by learned counsel for the appellant. Moreover, on the basis of the evidence of Dr. J.K. Bhutani (PW-10), who conducted the autopsy on the body of the deceased as also the contents of the (1) (2) 1F v. Q 8. lncised wound 4cm x 1 cm on the left index and fingers of the right hand. 9. incised wound 3cm x 1 cm just in front ef injury N93. 10. lncised wound 3cm x 1 cm on the ring finger of the right hand. (All the injuries on the arm were on the back side. ‘ 11. There were 8 incised wounds on the left side of abdomen and beiow the chest. The Doctor opined that the death was caused due to above muttipie injuries and it was homicidal in nature. (3) After completion of the investigation, the charge sheet was tiled in W .féiig Criminal Appeal No.45'7/2003 postmortem report (EXP/13), it is esmbiished that the death of the deceased was homicidalin nature. As far as involvement of the appellant in crime in question is concerned, learned couneel for the appellant argued that the factum of extra judicial confession made by the appellant has not been established in this case. He aieo argued that the discovery made by the appellant about the knife and the seizune of the knife at the instanca of the appellant have no value because the blood stains were not found on the knife. He further argued that as far as conduct is concerned. only on the basis that during the investigation, the appellant was found in a different Village — Koteya. it cannot be said that he was involved in the crime in que5tion. (6) On the other hand, learned counsel for the State opposed these arguments and supported the judgment and orderpassed by the trial Court. (7) We have heard learned counsel for the parties at length and have also perused the records of the Sessions Case. (8) So far as the law on the point of extra judicial confession is concerned, it is well settled that if the evidence to this effect is given by a l truthful witness who appears to be unbiased, not even remotely inimical to 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, words spoken are clear, and unmismkably that the accused is the offender and nothing is omitted by the witness which may militate against it, after subjecting the evidence to rigorous test on the touchstone of credibility, if it passed the test , it can be accepted and can be the basis for conviction. x“ A @ Criminal Appeal No.457/2u03 in the present case, if we look into the evidence of PW-2 — Smt. (9) - Geeta Bai, it would appear that she was declared hostile by the prosecution, as she did not support the prosecution case. In her examination-in-chief. she has cieariy stated that she does not know as to how death of the deceased took place. However. when she was cross. examined by the Public Prosecutor, she admitted in her cross-examination that at about 12:00 in the midnight, the accused/appellant came to her house, on which, she said that her husband is sleeping, therefore, he may come in the morning. Thereafter, in the morning, the accused/appellant again visited her house and said that he has stabbed a person by a knife and he demanded Rs.100/- for escaping from that village. Thereafter, the appellant left her house and in the morning, they saw crowd. in the field, where, the dead body of the deceased was lying. PW—3 - Kanhai has also been declared hostile by the prosecution. He has only deposed that at about 4:00 am, the appellant visited his house and demanded money, on which, he said to him to come in the morning, then, the appellant again came in the morning at about 5:00 a.m. and he had some talk with his son. This is the only evidence regarding extra judicial confession by the appellant. Even if we leave apart that these two witnesses have been declared hostile by the prosecution, it is only established by the evidence of Pvt/Q — Geeta Bai that the appellant was saying to her that he had stabbed some person and was demanding Rs.100/- for escaping from that village, but the name of that person, who has been stabbed by the appellant, is not coming in the evidence of this witness. i I / \ Criminai Appeal No.457/2003 ( 10) After going through the evidence of these two witnesses, we are of the opinion that no reliance can be placed upon their testimonies to hold that the appellant made an extra judicial confession before PW-2 — Geeta Bai that he had, in fact, assaulted the deceased with the knife and the factum of extra judicial confession is not established. (11) So far as discovery of the knife on the memorandum of the appellant is concerned, the same is not of much value in this case, because. as per the FSL report dated 31.1.2001, blood like substance were not seen on the knife and even the blood stains were also not found in its examination by the Forensic Science Laboratory. The trial Court has observed all this in para 25 of the impugned judgment, but, tt has treated discovery on the memorandum of the appellant as also seizure of the knife at the instance of the appellant. to be an incriminating circumstance in this case, which cannot be sustained. (12) About the conduct of the appellant, the trial Court has taken into consideration that just after the incident. the appellant was not found in village - Kenabandh and he was found in village — Koteya. which is a nearby village, The trial Court held that if the appellant was not involved in commission of crime, he would not have left village - Kenabandh and had gone to village - Koteya. This has been held by the trial Court vide para 23 ofthelmpugnedjudgment. if we look into the evidence in this regard, it has not been proved by reliable witnesses that, in fact, the appellant was present in the village prior to the date of commission of the crime or on the date of commission of crime and then, he had left the village and gone to a different village. A presumption about the conduct of the accused/appellant can only be drawn if there has been any evidence y Criminai Appeal No.457/2003 that he was present m the Vlilage on the date and time of the Incident and , hence, this circumstance is also not proved against the accused/appeliant. (13) Therefore, in the opinion of this Couit. the trial Court erred in iaw in convicting the accusedlappellant for commission of the murder of ' deceased - Rajesh Chikwa on the basis of above evidence on record (14) For the foregorng reasons the appeal deserves to be allowed and it rs accordmgiy allowed The convrctlon and sentence Imposed against the appellant are set aside. He is acquitted of the charge framed agarnst hlm it is stated that the appellant is in iarl since 29 12 2000 therefore he be set at libertyJforthWIth If not required in any other ease _-*.._L Sdl— _ ‘ ’ Sunil Kumar Smha e Judge i ‘ shyna ‘ - ‘w V w ‘ ‘ W Sdl-- 1 ,‘Chiefgustioe ‘k i t r' “aww—vrW-R ‘ “