a; "i^ (il!. KtSiB. 'i.^ 'K^ -i-^W ... ^/ ^' ^^If. l:!:ils •^'T'S.i!; APPELLANT: (In Jail) HIGH COURT OF CHHATTISGARH. BILASPUR Criminal Appeal No.16 of 1992 Rame alias Rameshwar Kanwar son of Late Shriram Kanwar, aged about 25 years, resident of village Charakpur, P.S. Kapu, Distt. Raigarh (M.P.) (now C.G.) RESPONDENT: Versus The State of Madhya Pradesh (now Chhattisgarh) {Criminal appeal under Section 374 of the Code of Criminal Procedure, 1973} Present: Mr. H.S. Ahluwalia, counsel forthe appellant. Mr. RavindraAgrawal, Panel Lawyerforthe State/respondent. Division Bench: - Hon'bje Mr. T.P. Sharma and Hon'bje Mr. R.L. Jhanwar, JJ ORAL JUDGMENT (10-3-2010) T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 12-12-91 passed by the 1 Additional Sessions Judge, Raigarh in Sessions Trial No. 132/89 whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of Rampati Bai, convicted the appellant under Section 302 of the I.P.C. and sentenced him to undergo imprisonment for life. ^ "2; ConvictiQn/is impugned on the ground that without any credible and clinching evidence the trial Couri: has convicted & sentenced the appellarit and thereby committed illegality. 3. Case of the prosecution, in brief, is that Rampati Bai (since deceased), the alleged sister-in-law (Bhabhi) ofthe appellant, was missing since 8-7- 89, her husband Budhram lodged roznamcha on 12-7-89 vide Ex. P-10 :i^. V; •&•. 'i '% 3 :-fii.3.;:i^. :'*i- : ;.ai:Ks&ij». '!''-g;7- ^ -i'J:fes.' and finally, bones, ornaments & clothes of Rampati Bai were found in the forest on which merg was recorded vide Ex.P-9, dehati nalsi was recorded vide Ex.P-11 and F.I.R. was lodged vide Ex.P-11A. After summoning the witnesses vide Ex.P-7, inquest over the skeleton was prepared vide Ex. P-8 and the alleged skeleton was sent for autopsy to Assistant Surgeon, Pathalgaon vide Ex.P-1. Finally, the skeleton was sent to Medical College, Raipur. Dr. T.N. Mehrotra (PW-14) has examined the skeleton and opined vide Ex.P-15 that the skeleton was of a woman aged about 25-30 years. The appellant made extra judicial confession ^efore Diripsai (PW-7), Ghurauram (PW-8) & Salikram (PW- 9). The incident was seen by Lanjharam (PW-5). Ornaments were recovered vide Ex. P-6 from the spot. 4. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after c.ompletion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Dharamjaigarh who in turn, committed the case to the Court of Sessions, Raigarh, from where the 1 Additional Sessions Judge, Raigarh received the case on transfer for trial. 5. In order to prove the guilt of the appellant, the prosecution has examined as many as fourteen witnesses. The accused was examined under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him, pleaded innocence and false implication. He has examine'd defence witness Jherain (DW-2) who has deposed that Lanjharam has not stated anything to him. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge has convicted & sentenced the appellant in the aforesaid manner. -MS -"Q 'i.-h a Ip,^ 7. We have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial Court. 8. Learned counsel for the appellant vehemently argued that the present case is based on the extra judicial confession made by the accused before Diripsai (PW-7), Ghurauram (PW-8) & Salikram (PW-9), but they have specifically admitted in their cross-examinations that the accused has made extra judicial confession before them in presence of police while he was in custody. Therefore, any extra judicial confession made by the accused before the police is not admissible in evidence and is hit by Sections 25, 26 & 27 of the Indian Evidence Act. Learned counsei further argued that Lanjharam (PW-5) has deposed in his evidence that he has seen the incident, but his evidence is full of suspicion, his evidence has been recorded after one month of the incident and he is not resident of village Chatakpur where the incident took place, even otherwise, his evidence is in conflict of the alleged extra judicial confession. 9. On the other hand, learned State counsel opposed the appeal and submitted that the evidence of Lanjharam (PW-5), Diripsai (PW-7), Ghurauram (PW-8) & Salikram (PW-9) are sufficient for drawing inference that the appellant was the person who has committed the offence. 10.1n order to appreciate the arguments advanced on behalf of the parties, / we have examined the evidence adduced on behalf of the parties. 11.1n the present case, skeleton ofa woman was recovered and same was examined by Dr. T.N. Mehrotra (PW-14) who has opined that the SKeleton was of a woman aged about 25-30 years. Ornaments of deceased Rampati Bai were found near the place of incident and on the i'?r>t. '^ 'j?"^ ^^ '•lo' ''^. ••>% sy ^ ^^ ^3?E tX.ff^ l:§.^'-i:i^-.s€ll^ basis of ornaments it can be presumed that the skeleton belongs to Rampati Bai. l2.As regards complicity ofthe appellant in the crime in question, conviction is based on the extra judicial confession made by the accused before Diripsai (PW-7), Ghuraurgm (PW-8) & Salikram (PW-9) who had specifically deposed that the appellant came to them and made extra judicial confession that he requested Rampati Bai, who was her sister-in- law, for sexual intercourse, but she refused and on her refusal he pushed her on which she fell down, he strangulated and caused her death. But in their cross-examinations they have specifically admitted that at the time of extra judicial confession police were present and the appellant was in custody. Evidence of these witnesses relating to extra judicial confession is not admissible in evidence and is hit by Sections 25, 26 & 27 ofthe Indian Evidence Act. 13.As regards the evidence of Lanjharam (PW-5), although his evidence has been recorded after lapse of 22 days, but only on account of late recording of his evidence his evidence cannot be discarded. This witness has deposed that he has seen the incident and at the time of commission of offence, the appellant committed sexual intercourse with Rampati Bai and after commission of sexual intercourse, he caused the death of Rampati Bai by strangulation (throttling), thereafter, he fled from the spot. After some time, police called him twice, then he made statement tci the police. ^ 14.T.S. Khwaja (PW-13) - Investigating Officer who has recorded the statement of Lanjharam (PW-5) has deposed in para 11 of his evidence .that Lanjharam (PW-5) himself came to the Police Station and gave his statement. ::.^^&, ..".•"'A '•";z» :^.N'!B^l'^e?^ :^'?! "Kifr 1 i5'n^;'s... "^ L'^IK5^ aB*'-sF^aii» /w 15.The deceased was resident of village Chatakpur and Lanjharam (PW-5) is resident of another village namely, Kom nearer to village Chatakpur. No witness has deposed that Lanjharam (PW-5) was present near the place of incident. According to the evidence of Lanjharam (PW-5), he himself has not gone to the Police Station for giving statement, but he was called by the police. Per contra, T.S. Khwaja (PW-13) has deposed that Lanjharam (PW-5) himself came to the Police for giving statement. These statements are self-contradictory. 16.According to the extra judicial confession made by the accused before Diripsai (PW-7), Ghurauram (PW-8) & Salikram (PW-9), on refusal for sexual intercourse, the appellant pushed Rampati Bai on which she fell down, thereafter, he pressed her neck and caused her death. This shows that when the deceased refused for sexual intercourse, the appellant has committed the murder, but has not committed sexual intercourse with her. However, the evidence of Lanjharam (PW-5) reveals that the appellant first committed sexual intercourse with Rampati Bai and thereafter caused her death by throttling. These evidences are also contradictory to each other and in conflict of other evidence. Except these evidences the prosecution has not adduced any other set of evidence. These evidences are not sufficient for drawing inference that the appellant has committed culpable homicide amounting to murder of Rampati Bai: 17.While conViding & sentencing the appellant under Section 302 of the I.P.C., the trial Court has not considered the evidence in the light of the 'aforesaid legal proposition and thereby committed illegality. For the foregoing reasons, conviction & sentence of the appellant are not sustainable under the law. y^f^ ^ f ^9^. "i<%:^. ^IBBC^J ^-SB!SSW Homa f% 18.Consequently, the appeal is allowed. Conviction & sentence of the appellant under Section 302 ofthe I.P.C. are hereby set aside and he is acquitted of the said charge. He is in custody, he be released forthwith, if not required in any other case. -——— Sd/- T.P. Sharma Judge Sd/- R.L. Jhaiswar Judge :l:tSF''!B-