K' HIGH COURT OF CHHATTISGARH. BILASPUR CORAM : Hon'ble Shri Rajeev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha, J. Criminal Aoneal No. 555 of 2002 Khilawan Kumar Vs. State of Chhattisgarh JUDGMENT -Ec£c_c_onsideration Sd/- Sunil Kumar SinJia Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA j :s;i:y-w'ft^i^w<1"•"?" ? ;-?:'Sti;•£<-'.S'.SK'y-'i-S. Chief Justice Post for Judgment -.2-1 /04/2009 Sd/- uuuge ' >0/04/2009 fr"'f v ^^-? >, .'^1 • ^ i <.© ^. '• '^." w HIGH COURT OF CHHATTISGARH.^IL^SPUR CORAM : Hon^bl^Shri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kumar Smha, J. i^^^^^l^' Crinunal Appeal No. 555/2002 APPELLANT Khilawan Kumar, s/o Lalji Sahu, aged about 25 years, R/o Gram Ramtara, P.S. Gurur, Distt. Durg (C.G) RESPONDENT Versus State of Chhattisgarh, Through Police Station Gurur, Distt. Durg (C.G.) (Appeal under Section 374 (2) ofTheCode ofCriminal Procedure) ' •'vis'hi-^SS Appearance: Mr. N.S. Dhurandhar, Counsel for the appellant. Mr. V.V.S. Murthy, Deputy Advocate General for the State. JUDGMENT (21.04.2009) Following judgment of the Court was delivered by Sunil Kum.ar Sinha, J. (1) Appellant Khilawan Kumar stands convicted u/ss 302 8s 201 IPC and sentenced to undergo imprisonment for life 85 R.I. for 3 years; with fme of Rs.1000/- and Rs.500/-, in default of payment of fine, to further undergo R.I. for 6 "~1 .r'ft,,. •"it -^. Cr.A.No.555/2002 ^ a-.:.l;l;t-<:&?.'^:<5"=••?-'"• 32B#oi months SE R.I. for 3 months respectively by the Addl. Sessions Judge, Balod, District Durg (C.G) in S.T.No.395/2001 on 01.05.2002. (2) The facts, briefly stated, are as under: Deceased Jagautin Bai was the aunt of the appellant. She remained unmarried. She was residing in two separate rooms given to her by the father namely Ramnath (P.W.2). She was also given 1.5 acres of land for her livelihood. Jagautin Bai was claiming 3.5 acres of land more. To claim her rights, she had locked three more rooms in the house. On 13.8.2001 she was asked by the appellant to open the lock of the room, on which, some quarrel took place betvyeen the appellant and Jagautin Bai. The aUegations are that in the night at about 2 a.m., when Jagautin Bai came out of her room to answer the call of nature, the appellant attacked over her neck by a sickle, due to which, she fell down in fhe Verandah. Thereafter, the appellant gave repeated blows on her neck causing many injuries to her. Jagautin Bai succumbed to those injuries. Further allegations are that after committing murder of Jagautin Bai, the appellant, with an intention to screen the offence, took her dead body inside the room. Sickle and blood stained clothes were also kept in the room. The case of fhe prosecution is that the appellant himself came to the police station and lodged the report (Ex.P.9) as above. y ::*"^1 '^- :'.^?' Cr.A.No.555/2002 .'Si^iS:-^^^^ WiSSS On such information, the investigating officer recorded merg intimation Ex.P.16 and he further recorded memorandum stateraent of appellant (Ex.P.5). After reaching to the place occurrence, the dead-body was recovered under Ex.P.4. After giving notice Ex.P-11 to the Panchas, Inquest (Ex.P.10) was prepared and the dead body was sent for its postmortem. Blood stained soil and plain soil were seized under Ex.P.14 and sickle was seized from the verandah of the house under Ex.P.8. Certain other articles were also seized. The seized articles were sent for their chemical examination to the Forensic Science Laboratoiy, Raipur, under Ex.P.24 but the F.S.L. report could not be produced The Postmortem Examination was conducted by Dr. Rajkumar Nayak (P.W.12) who prepared his report Ex.P.27. The autopsy surgeon found as many as sbc incised wounds on the ear, cheek and throat regions. He noticed fhat left carotid artery and left jugular vein were completely cut. According to the postmortem report, the cause of death was shock due to excessive hemorrhage and it was homicidal in nature. (3) Admittedly, fhere are no eye-witnesses in this case and the conviction of the appellant is based upon the First Information Report lodged by him and the discovery of the dead body, sickle and blood stained clothes on the information and at instance of the appeUant. V- . •^^r-t ~--?r ,;f;j;.'£~^1: 4 Cr.A.No.555/2002 n~l'-t. :wsSSS8SS (4) Mr. N.S. Dhurandhar, learned counsel appearing on behalf of the appellant would submit that the confessional F.I.R. would not be admissible in evidence; the disclosure of the appellant has not been proved; there was no question of discovery at the instance of the appellant as eveiything was lying open in the house of the deceased which were handed over to the Police by the villagers and lastly, no F.S.L. Report has been produced, therefore, even if the recovery was effected at the instance of the appellant, that was of no use to the prosecution. (5) On the other hand, Mr. V.V.S. Murthy, learned Deputy Advocate General, appearing on behalf of the State, opposed these arguments and supported the judgment and order passed by the Sessions Court. (6) We have heard the leamed counsel for the parties at length and have also perused the records of the sessions case. (7) So far as the argument regarding confessional First Information Report is concemed, the Apex Court held in the matter of Ashnoo Naaesia -Vs- State of Bihar. AIR 1966 SC 119 that "The Erst information report recorded under S. 154, Criminal P.C. as such is not substantive ' evidence, but rnay be used to corroborate the informant \- -r^.T;'^T.5?t ^fS^S'rirEt"'"''-^""'3-T-fs .«" f.;(' ,'s-w; Cr.A.No.555/2002 'f^ under S. 157 of the Evidence Act or to contradict him under S. 145 of the Act, if the informant is called as a witness. Where the accused himself gives the first information, the fact of his giving the information is admissible against him as evidence of his conduct under S. 8 of the Evidence Act. If the information is non- confessional, it is admissible against the accused as an admission under S.21 of the Evidence Act and is relevant. But a confessional first information report by the accused to a police officer cannot be used against him in view of S. 25 of the Evidence Act." The Apex Court also relied on tbe decisions rendered in the matter of Faddt -vs- State of Madhua Pradesh. AIR 1964 SC 1850; Nisar AH -vs- Stute of U.P.. AIR 1957 SC 366 & Dal Singh -vs- Kinp Emperor, AIR 1917 PC 25. Therefore, the confessional first information report cannot be read against the appellant. (8) So far as the information part in the F.I.R (Ex.P.9) as also the discovery part in fhe memorandum u/s 27 of the Evidence Act (Ex.P.5) relating to information about the dead body and sickle are concerned, they are of no use to the prosecution. It appears from various documents prepared by the Police during the investigation that the dead body was recovered at 10 a.m. on 13.8.2001 (Ex.P.4); / •<}-. ~~^. 7-3!f^S5S'-S3St^^S3k,t^--ilA-*W»!s!s3s:f!t^~'''';«n» Cr.A.No.555/2002 '?9. the cloth of the appellant was seized at about 12.10 p.m. on 13.8.2001 (Ex.P.7); and the sickle was also seized at about 12.00 noon on the same day (Ex.P.8). Chamar Rai (P.W.4) deposed that deceased Jagautin Bai was daughter of Ramnath (P.W.2). Ramnath has given one acre land to Jagautin Bai in partition. He had also given accommodation to her in the house. Jagautin Bai was residing separately in the portion of the house allotted to her. In the cross examination, he admits that on the fateful day, at about 6.30 - 7.00 a.m., he had gone to the house of Jagautm Bai. At that time the police had not reached there. He saw that the dead body of Jagautih Bai was lying in the rooin and sickle and clothes were also lying there. When the police came to the scene of occurrence, he told about the dead body, sickle and clothes to the police. He has very specifically stated that the poUce reached there at about 9 O' clock. Ruhela (P.W.l) also stated in Para 7 of his cross examination that at about 7 a.m., the villagers had gathered in the house ofJagautin Bai. At that time the police was not there. The police came at about 9 O' clock. He had seen the blood stained sickle in the verandah of the house and had also seen the dead body of the deceased lying in the room. He had also seen blood stained clothes and Chappal ete. When the police came at about 9 O' It^ ^'^-.'•;1^'^7^-^ "V ^-B-?=ri S:. ""^. Cr.A.No.555/2002 t). *a8i ^•^ ;U;;?¥'i; clock he along-with the villagers told the police about sickle, dead body and clothes. The Police prepared Panchnama. and had also seized the said articles. P.W.ll Yogesh Jain and P.W.7 Umesh Gangrale are the witnesses of the memorandum and seizure of sickle. These witnesses have turned hostile and have not supported the case of prosecution at all. (9) The leamed Sessions Judge has held the memorandum and seizure to be proved on the evidence of Investigating Officer which does not appear to be correct on the face of evidence on record. More over, if the dead body and above articles were lying in the house of deceased herself in unhidden condition, there was no question of recovery of those articles on the discovery or at the instance of the appellant. Many villagers had gathered in the house of the deceased and they had seen the dead body as also the articles at about 6.30 - 7.00 a.m. and they had pointed out all this to the Police when it reached in the village at about 9-10 a.m. which is clear from various documents referred to above. Even otherwise also, the seizure of above articles will not carry much weightage as the F.S.L. report cozild not be filed by fhe police in the trial. The dead body of the deceased was found in that portion of the house in which .she was residing separately after' getting it in ,.—«lk W ff Cr.A.No.555/2002 ^/ partition from her father, therefore, the appellant was not required to give explanation for all fhis and there was no cogent, clinching and reliable evidence against the appellant and the conviction based on the above evidence appears to be unjustified. (10) For the foregoing reasons, the appeal is allowed. The conviction and sentences awarded to fhe appellant u/s 302 8s 201 IPC are set aside. The appellant is acquitted of the charges framed against him. It is stated that the appellant is injail since 13.8.2001. He be set at liberty; forthwith, if not required in any other case. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge v.i^'Ssi JdsS'ISUIi'^*'"' ^^l^3'^"^' /Rao/