HIGH COURT OF CHHATTISGARH. BILASPUR CORAIW: Hon'ble Shri RaieevGuDta. C.J. & Hon'ble ShriSunil Kumar Sinha, J. S-7-/ CriminalADpeal No. 610 of 1993 Ramadhar Vs. The State of M.P. (Now State of Chhattisgarh) JUDGMENT HON'BLESHRUUSTICERAJEEVGUPTA -5 <^LJ^ For consideration Sd/- Suuii Kusiiar Sinha Judge Sd/- CEiiefJustice Postfor Judgment :^/07/2010 Sd/- SunilKumarSinha Judge ^- hl. s-.:i t HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kumar_Sjnha,^J. APPELLANT RESPONDENT Criminal A'DDeal No. 610of 1993 Ramadhar aged 28 years, son of Shri Hoti Raut, occupation Tea shop, resident of Bus stand Saja, P.S. Saja, District Durg (M.P.) (Now State of Chhattisgarh) Versus TheStateofM.P. (Now State of Chhattisgarh) Through P.S. Saja, District Durg (Criminat Apoeal under Section 374 (21 of The Code of Criminal Procedure, 1973) Appearance: None for the appellarit. Mr. Akhil Mishra, Dy. Govt. Advocate, for the State. JUDGMENT (0$.07.2010) Following judgment of the Court was deiivered by Sunil Kumar Sinha, J. (1) Appellant- Ramadhar stands convicted u/s 302 IPC andsentenced to undergo imprisonment for life by the Third Additional Sessions Judge, Durg (Camp Bemetara) on 21st April, 1993 in Sessions Trial No. 45/90. (2) The facts, briefly stated, are as under:- * . Shankar Raut (PW-5) was running a hotel (small tea-shop) in bus stand Saja. In the night of 30.5.89, after closing the hotel, Shankar Raut, his daughters Sulochini Bai (since deceased) and Chanda Bai (PW-6), allwere sleeping in the outer verandah of the hotel. At about3.00 a.m., Chanda Bai heard some noise, she woke ;-^:UR and saw that accused Ramadhar has fallen down at some disfance» Thereafter Ramadhar ran away. She told this to her Criminal Appeal No. 610 of 1993 . father, who opened the shop and switched on the light. They saw that Sulochini Bai has died. She was lying on pool of blood having serious injuries and one bigstone was also lying there. The prosecution came with the case that the appellant threw stone on the head of the deceased, due to which, she died on the spot. The case ofthe prosecution was based on the testimony ofChanda Bai (PW-6) and the so called extra-judicial confession made by the appellant before Omprakash (PW-12). The learned Sessions Judge believed the testimony of Chanda Bai (PW-6) & extra-judicial confession made by the appellant before Omprakash (PW-12), and held that it was the appellant who caused injuries to the deceased. (3) The appellant has mainly challenged his conviction on two grounds. The first is that the testimony of Chanda Bai (PW-6) was not reliable and the second that the extra-judicial confession made before Omprakash (PW-12) was not admissible in evidence as it was made while the appellant was in police lock-up. (4) Mr. Akhil Mishra, learned counsel for the State, has supported the judgment passed by the Sessions Court. (5) So far as testimony of Chaqda Bai (PW-6) is concerned, she has admitted that the relations between their family and the appellant were not cordial. The appellant used to quarrel.with them. He was also running a shop near their shop and at one occasion, on accountof quarrel between them, a proceeding u/s 107 Cr.P.C. was drawn against the appellant on their instance. She further admitfed in Para-10 of her cross-examination that lights were not on at that place where they were s.leeping and she got the lights on after the incident took place. Chanda Bai has not seen the appellant assaulted the deceased. She had pnly claimed that shesaw the appellant runningaway at some distance just after the incident. The incident took place at about 3.00 a.m. ;ancl,aecordihg to this witness, the lights were not on near the place of ^s datti; Criminal Aroeal No. 610 of 1993 occurrence. Even they could not firstly see that the deceased has received some injuries and, in fact, she has died which they could only see after the lights were on. In appreciation of the entire evidence of PW-6, we feel that her sole testimony as an eye-witness was not reliable and a possibility of mistaken identity or that of false implication of the appellant on account of previous animosity cannot be fully ruled out in the facts and circumstances of the case. It is not a case in which the appellant was seen running away with some weapon in day time or in such a situation when there was no question of visibility and identification. (6) The other evidence of extra-judicial confession is not at all admissible in view of Section 26 of the Indian Evidence Act, which provides that "No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person." In case on hand, the confession was altegedly made when the appellant was in the lock-up of the police station. Therefore, the said piece of evidence was not admissible against him. (7) In the above facts and circumstances of the case, we are unable to accept the finding recorded by the Sessions Court that it was proved beyond reasonable doubts that the appellant committed murder of deceased Sulochini Bai by throwing stone over her head and was liable for punishment u/s 302 IPC. (8) In the result, the appeal is allowed. The conviction and sentence awarded to the appellant'are set-aside. He is acquitted of the charges framed against h.iny' It is stated that the appellant was throughout in jail since 30.5.89 and was released on bail-vide order dated 9.1.2002. His bail bonds are canceUed and surety stands discharged. Sd/- CfciiefJustiee Sd/- Sunil Kumar Sinha Judge