^wf^f .:;.^ . • ""^ ,^, ' (^^ IN ,THE _iiIGH_COURT _OF MADHYA PRADESH AT JABALPUft, <».,,, .^ appeol No. fc" •-''-^- of 1995 ;"!, rtc?^' ^ P.: .D.! ^•^-j^^'s^ APPELLANT (IN JAIL5 <"' Budha Ram Dhanuhfcr, aged abou.t 35 years,' S/o parshuram Dhanuhar,R/o Vill.Khairwana Police Station-E^inandregarh, Distt. Sargujs,Z4.P. ' At Pr'esenfcs- Gentrcl Jail, RaiQux'. VER3U3 ; ^ RESPONDENT; e State of Ha4hya pradesh MEMORAICTUM, OF CRIMINAL APPEJ\L UNDER SEG'TION 374 (ii) OF THE COD3 OF GRIMINAL FROCEDIJR.E, 1973 . •• / r~r[ d^^eiBW^'rtrt -^=^ti -i:iii*ar I-HC-22 311^1 aiT !<-)i.<* 3WKI stitli(^ '^cr ^s?'^ipn5PT,^1'L<<i<»;iG<^i'yli< . ^^tz..^ s 111WI Sh«lct> 'WI 200 ^t^St' DIVISJON BENCH: - HON'BLE MR. L.C. BHADOOANDl HON'BLE MR. V.K. SHRIVASTAVA. JJ. 13-12-20M Shri Sachin Singh Rajput, cou Shri G.K. Beriwai, Additional Panel Lawyer for the State/responde]nt. Oral judgment. By this appeal, the accused/|appellant has questioned the legality of the judgment of convictign ^nd s^ntence dated 11-3-95 passed by the Additional Sessions Judge, Manendijagarh District: Surguja in S.T.No.143/94 whereby learned "Additional S Phaguni Bai, sentenced him to unde Budhram, his wife Phaguni Bai (sin returning, the accused/appellant wad sudden,. assaulted his wife namely Which he was carrying jn his hand. pf occurrence, the above eyewitne^ PW-2 Santft, soh ofSukhlal caught PoliceSt^tioh Podi for lodging the ^ Sub inspector S. N. TripaUii '(PW^ <tii<it<n<i)-< wS^ test <(»I«K ^Tsiptnsii^t Insel for the appellant. Public Prosecutor with Shri Akhil Mishra, ^ssions Judge after holding the accused/appetlant guitty fbr the coi|nmission of rourder of his wife namely \-ga imprisonment for life. The case of the prosecution, |i brief, is that on the fateful day accused ?e deceased), PW-1 Santu son ofBidur and PW-2 Santu, son of Sukhlal, brdther of the deceased,went to the market '.-••F . . 1 .•••.'.• . • . . '. of Manendragarh for seliihg veget^ibles. In.ffte evening, when they were carrying an axe in hjs hand. When they reaphed near the village Bartji Ghot^pathara, theaccusedteppellant, all of a Phaguni on her neck with the said axs When he tried to escape from the scene ises i.e. PW-1 Santa son of Bidur and lim. On thenextday,.Santy wentto the sport. On receMngthe reportAssistant 8) registered th®Crime No.0/93 under ['qt^^fe^ XI-HC-22 snT^r^it R-<i* siiin ^H ^ifia ?^'3(Fd?rq, ^tiltfld, iini'uy 3TI^?T XR^. ^I^CTI ^^IW^^^ ^ """'fgre^T""""'"" 200 Section 302 of the I.P.C.. Thereafller, Police Station Podi in whose jurisdicjtion committed. PW-7 Maheshwar Sjngli| about 7 p.m. and he went to the scen^ witnesses under Ex.-P/9, prepared ti|i< body of Phaguni Bai and sent the de^< to the Primary Health Centre,Manenc|r offence i.e. axe whieh was lying near] the deceased, blood stained soil an|d possession under Ex.-P/S. The blood was taken into possession unde.r-Ex.-f taken into possession uDderEx-P/121 by him. The postmortem of the'de^ Rajendra Singh'Bhojak and he prepar^ After Completion of the investi^tion Court of Judicial Magistrate, 1? Class| the case to the Sessions Judge, Sy| Additional Sessions Judge received th( The prosecution in order tQ pi appeliant examined 7 witnesses. Or Sessions Judge recorded thestatemetit the Cr.P.C. in which he denied his m\ the evidence of the prosecution is] rmplicated in the crime and the wi Sessions Judg? after hearing the ar "^; •*l<l[<'l<i1-f tlTTCif ^ fS'A <l«]tt;l< ^?3lPgH3iI^[ . r, the matter was transferred to the the crime was said to have been recfiived the information Ex.-P/6 at ^ of occurrence. After summonjng the |ie Panchanama (Ex;-P/2) of the dead |d body of Phaguni Bai for postmortem jtagarh under Ex.-P/10. The weapon of ]the body, broken pieces 6f bangles of the plain soil were also taken into ]stained Sando baniyan of the accused P/11. Theclothes ofthe deceased were The sile plan Ex.-P/13 was prepared |id body was conducted by PW-4 Dr. |d the repprt Ex.-P/1. i, charge sheet was flled in the Manendragarh who in turn committed ^gyja, Ambikapur from where learned fe case on trarisfer for trial. i|ove the charge against the accused/ the other hand, learned Additional ofthe accused underSection 313 of tolvement in the crime and stated that not correct. He has been falsely itnesses are liar. Leamed "Additional •buments and perusa! of the records, [Tf^-^pa^l an^l^I I" ^ K-U'h SIicRl ?frRicfr^fft?r 's^f -i)Mic|<i, ij-dlti'i'iB, (««ni'M-y Sd^T 'tRRi WWfTWIT* "M 200 ^s^ss' convicted and sentenced .the acd judgment. We have heard Shri Sachiri accused/appellantandShri G.K. B| Shri Akhil Mishra; learned Panel Lavj^er for the State/respondent. The fact ofdeath o(Phaguni| disputed by learned counsel for th® the evidence pf PW-4 Dr. Rajendra and PW-2Santu, son of Sukhlal, it Baiwas homicidal in nature. Now, coming to the qyestion| in the crime in question, Sftri Sach| accused/appellant, in the first in'stan| eyewitnesses PW-1 Santu son of ^ not worth reliable. They h.ad not v^ witnesses in his cross-examination the accused attacking the deceasec| ri . • '' •••••' ^ the Police Station from the place cj incident took place on 13-8-93 at 6 next day at about 3.20 p.m., there] The evidence of th&witnesses to accused at the scene of occurrence] PW-1 Santu son of Bidur and PW-2 •: stated that <jeceSsed Phaguni Bai •ti^-'il'i Hiifil'? 1Siat <FI]^K 'T; ^; aipgii an^i • used as mentioned in para-1 of this Singh Rajput, learned counsel for the iriwal, Additional Public Prosecutor with Bai as homicidal in nature has not been accused/appellant. Apartfrora that, from Singh Bhojak, PW-1 Santu son of Bidur is established that the death of Phaguni of involvement of the accused/appellant n Singh Rajput, teamed cbunsei for the se, argued that the evidence of so called iidur and PW-2 Santy, son of Sukhlal is itnessed the crime because each of the has clearly stated that he has not seen . He further argued that the distance of f occurrence was about 32 km and the p.m. and-the matter was reported on the ;ore,the delay has not been explained. the effect that they caught hold of the is also not correct; We have pemsedthfe evide^ce of these two eyewitnesses namely Santu, son of Sukhlal. RAf-1 Santuhas sas his sister. She was married to the accused?aA»ellant. On the date of l|he incident he along with his other friend [Tft^^f<^ fi^.W.!-^.^ .- ^T - XI-HC-22 sn^r^ii h-Ufh SV^V ^H -^fl BK ~T5r'aICT?f!T, enfl'yis, facii'My 3ff^T tpra? iiroetT aiwft "?IT, 200 Isre^g' . 311^1 ^RIIdR'HlOT ..^. anfcl the^ attadked tHe Sanfat S/o Sykhlal, the deceased Manendragarh. At about 6 p.m. near Ghotupathara, the accused her neck and murdered her. After alpng with Santu caught the accused He has furthy stated that when the had beaten him also. They.were wat): to the Kotwar along with the accusecj Manendragarh next day because incident, after the incident,] night set ] steted that he had not withessed thel sister in the lying position on th'e roacj carrying ^ifaxe in his hand and he mut^h darkand thingswere visible at' of PW-2 Santu son of Sukhlal. Ror appreciating the argument^ gccused/appellant, in Uie cross-< have stated thaf they had not .witne^ would be retevantto referthe evidenc) Banji. He has stated that in the night house in an injured condition and murder of his wife that is why he brother-in-law assaulted him. On suspicious that the accused may die, | and the neighbourers. sent him to house. When he returned t6»Ushousl' »hl''<I"l''fl-< ^Wcff 41s^<f»i<ty< '^SlPOTSlfel the accused went to the market of were returning, when they reached his sister Phaguni with the axeon atfacking, when he tried to ryn away, he ^nd they took him to the Poljce Station. ^ccused was trying to run away.they 'atjshing the body whole night. Theywent and thereafter they went to the P.8., same day i.e. on the day of the in. In para-9 of his eyidence he has |crime with his own eyes. He saw his because the accused started running c^ught him, At that time, there was no $ome distance. Similar is the evidence advanced by learned counsel for the exan]iination of these two witnesses, they ^sed th®crime withtheir own eyes. It of PW-3 Rai Singh, resident ofviilage bf the incidenfthe accused came to his tlisclosed him that he has committed t|ias received the injuries because his ^ceount of the injuries 'he became jtherefore, he went to the nejghbourers the^otwar. Thereafter, Kotwarcame to his hous|e, the accused was not available in his -^' Mf:'.^ . : I^SIOI IW XI-HC-22 ^M". KB SD^T^iT R;-<i.'* sn^v ^•R ^CT ~Svf 'VtMWi'i, .(i'dl'y'l'i, fadiyy 3^5T 'q^ra? IIHCTI !h»lich""'""""""""""""""" "'H'I. 20° (ci^ciia""'"""""""'"""""" house. When he enquired.from his in-laws of the accused i.e. PW-1 Sai Sukhlal came andtook him tothe PE of Patel.he saw thattheaccused \^as present in the house of Patel along with brother-in-law and thereafter w; examination, this witness has stat^d that-when the accused came to his house, he was not at his residence. an injured condition has entered the him previousiy. The extra judicialc PW-3 Rai Singh, who is an ind examination of this witness, nothing that on account ofany reason this \ the accused or in any way, he was aqd PW-2 Santu, son ofSukhlal. Tt because he has committed murder c PW-1 Santu son of Bidur and PW- went to inform in the village and the deceased, he ran away from that pli there PW-1 Santu son of Bidur and him to the house of Patel, therefbre Singh in or<jer to save himself. DiJ cbl'4ld4lT1 :HTl-Rll' ^^S <^Il'^l< ^i'SlPaq 311^1 family members, theysaid that brether- itu son of Bidur and PW-2 Santu, son of Itel's house. When hewenttothe'house itch was kept on the body. In the cross- His children informedthatone person ih hou?e. The accused was not known to ;onfession made bythe accused before ependent witness, and in the cross- has been brought on record to indicate ritness was keeping any grudge against ihterested in FW-1 Santu son of Bidur ie evidence of this witness is natural.' He has very clearly stated that the acc(iSed came in an injured condition to his house when he was not at his resid^nce. When he came and enquired from the accused that howhe has receiv^d the injuries, then he diselosed that he has received the injuries on accoun^ of beating given byhis brother-in-laws f hiswife,' It has come in the evidence of 2 Santu; spn of Sukhlal that when they accused to remain near the body of the ice. He came to thehouse of PW-3 from PW-2 Santu, son of Sukhlat agajn took , the accused came to the fiouse of Rai ring that process, on enquiry, he made extra jydictal confession. It is settl^d law that the extra judicial confession '•tt-. -[17t'^-^P^ "•E- XI-HC-22 -S^f 3(ptT?pT, ^cftOTS, i»«rtl*<y aB sn^si^it feiNan^ A^i't'Hfe^ Sil^t'FCTW.'Hf??! 6 witrtess b4en thht can be accepted only when it founcj nothing in the evidence of this confession made bythe accused befoj: the cross-examination, nothing has or pressure was exerted on this confession. As far as truthfulness concemed, this witness has stated and he sawthe dead body of the d^i made by the accused before this evidence of witnesses PW-1 Santu 4 Sukhlal. Now, in this conte)d, if eyewitnesses i.e. PW-1 Santu spn of then much importance cannot be they had not seen the accused assault in their evidence it has come that all 6< in the market of ManendFagarh, atl of| accused'was cariying an axe in his h^ with thesaid axe and the ax^ was als| was trying to run away when he wa^ statement under Section 313 of the said ghastly act was done by witnesses at the time-ofcommission i ^.rought on record in cross-examin^ witnesses have any grudge against dr someb|ody implicate h)m in a false casethattoo 11 "•••/.' ' . .. ' • :1 ' sister. Even the axe which-the accus Wfe'iR WRTf ^ teA'(fsR?P ^; 3rfi<re sn^i ^on \i?e attadhed ^-•. to be voluntary and true, There is which shows that extra judicial te this witness was not voluntary, as in brought to show that any coercion |witness to make the extra judicial of the extra judicial confession is he went to thescene of occUrrence ^ceassd. The extra judicial confession ^itness lends corroboration from the of Bidur and PW-2 Santu, son of appreciate the evidence of the Sidur and PW-2 Santu, son of Sukhlal, to their evidence to the effect that |ng the deceased with an axe because them went together to sell vegetables |them were returning together and the thd, and afrof a sudden, he assauited s|o left at thescene of occurrence. He caught by these witnesses. in the r.P.C. atso he haS not explained that else and he was not with these i|»fcrime. Moreover, nothing has been i^tion of these witnesses that these Itheir own, brother-in-law in order to ii|i such a serious case of murderof his >^d was carrying in his hand was lying [ift^^^ XI-HC-22 "'• •aa^T'qn '^ Gyi?h 3i1^I »)Hi<^,'^iifl. ^' ,<c~^' "a^ 'iii'yHi, ^•dl'y'Ka, l^iray - siits^gwsf?^ ^ =(il1!fl<i)-1 -WRft •?fS^! •^3lPgT[3T^i • riear the body and the §ame was ]recovered under Ex.-P/3. The blood stained was also present on the axe ^yhen it was recovered. The memo Ex.- P/2 also shows that the axe was staihed with blood, therefor®,the evidence of these witnesses who were atond with the accused at thetime of the incident inspire confidence of the delayin this case is not fatal for th^ ourt that they witnessed thecrime.in question. As far as arguments adv^nced by leamed counsel for the accused/appeltaht regarding the del^y )n lodging F.I.R. is concemed, the reason that the accused himseif was caught red handed while committing t|ie crime. The place of occurrencewas about 32 km away from the, Rolice S^ation as argued by learned counsel for the appellant and the crime in quest|on was committed in the evening and the witnesses wanted td infor'm the ^otwar and by that time the night was alre.ady set in, then the villagers of th^ village Banji also came and the matter was reported next day. In the night;' ii available. Therefore, in the circumsta that the delay in lodging the report i: which showsthatsamehasbeen dels \\ the tribat area, vehicles are not easily |rices, we are pf the considered opinion ^ not fatal. There js nothing on record |yed fprcooking up a false case against : the accused/appellgnt. In view of the above, finding o|F the trial Court convicting the accused for commission of murder of Phac|uni Bar based on tte extra judieial confessioh made before PW-3 and a| Santy son of Bidurand P'W-2 Sanfi< interference.by this Court. • [h thi? resUlt, we do not find anj is, ther^fcrfe, liable to be clismissed afll Sd/- •'.<- L.C.BHADOO Judge !sp relying upon the evidence of PW-1 , son of Sukhlal does not rsquire any substance in this appeal. Theappeal :! it is hereby dismissed. '^—^- ij Sd/- V.K.Shrivastava Judge