i^^.^1 HIGH COURT OF CHHATTISGARH, BILASPUR APPELLANT: (InJail) RESPONDENT: Criminal ADpealNo.712 of 2004 Rajesh Kumar Patel, S/o Late Shambhu Ram Patel aged 30 years, R/o Vill Ghorda, P.S. Ambagarh Chowkl, Distt. Rajnandgaon (C.G.) Versus State of Chhattisgarh Through P.S. Ambagarh Chowki Oistt. Rajnandgaon {Criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973} Present: Mr. J.R. Vermawith Mr. Santosh Sahu, counsel for the appetlant. Mr. D.K Gwalre, Govt. Advocate fortheState/respondent. Division Bench: - Hon'bte Mr. T.P. Sharma & Hon'ble Mr. R.L. Jhanwar. JJ ORALJUDGMENT (10-2-2010) T.P. Shanna. J: - 1. Challenge in this appeal is to the judgment of ra>nvictton & order of sentence dated 27-3-2004 passed by the Additional Sessions Judge, Rajnandgaon, in Sessions Trial No.35/2004, whereby & whereunder leamed AdditionalSessions Judge after holding theappellant guilty for commission of culpable homicide amounting to murder of Surekha, wife of the appellant, convicted the appellant under Section 302 ofthe I.P.C. and sentenced him to undergo imprisonment fbr life & pay fine of Rs.5,000f-, in default of payment of fine to further undergo R.l. for one year. 2. Conviction is impugned on the ground that without any iota of evidence, the Court below has convicted & sentenced the appellant and thereby committed illegality. "' '''"^®^. ^1'. "^^. ^ ,jiy'-" _ 1, 5i ^ijp' J S. 3. Case of the prosecution, in brief, Is that deceased Surekha, wife of the appellant, was residing with the appeltant. On the fateful day of 28-11- 2003 dead body of Surekha was found in the field of the appetlant and injuries were found over her body. The appellant searchedthe deceased and finally todged merg intimation vide Ex.P-13 and on the basis of merg intimation, F.1.R. was recorded vide Ex.P-14. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex.R-2, inquest over the dead body of the deceased was prepared vide Ex. P-3. Spot mapwas prepared videEx.P-1. Dead body was sent for autopsy to Govemment Hospital, Ambagarh Chowki vide Ex.P-15 and autopsy was conducted by Dr. M.P. Maheshwar (PW-9) vide Ex. P-11 who found injuries over neck. Death was due to asphyxia as a resurt of strangulation. Death was homicidal in nature. Bloodstained & plam soil were recovered from the spot vide Ex.P-4. Sealed packet of clothes of the deceased after autopsy was seized vide Ex.P-5. One shartnama (agreement) Ex. P-7 was seized from Ramsukh Patel vide Ex. P-6. 4. Statementsof the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigErtion, charge sheet was filed before the Judicial Magistrate First Class, Ambagarh Chowki, who in turn, committed the case to the Court of Sessions, Rajnandgaon, from whereby leamed Additional Sessions Judge received the case on transfer for trial. 5. !n 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 again^ him, pleaded innocence and false implication. •li», ....i'i'i., ?" '^•-^s^s^ ^ ^ 6. After affording opportunity of hearing to the parties, tearned Additionat Sessions Judge convicted & sentenced the appellant in the aforesaid manner. 7. We have heard learned counsel for the partles, perused the judgment and record ofthetrial Court. 8. Learned counsel for the appellant vehemently arguKl that conviction of the appellant is based on the sole testimony of Mangal Singh (PW-5) before whom the appellant has made extra judicial confessfon that he has kllled Surekha (his wife). But Mangal Singh (PW-5) has specifically admitted in para 4 of his evidence that the appellant has made extra judicial confession to the police in the Police Station, therefore, the extra judicial confession made by the accused to the police is not admissible in terms of Sections 25, 26 & 27 of the Indian Evidence Act. Learned counsel further argued that except the evidence of Mangal Singh (PW-5), the prosecution has not adduced any other evidence to connect the appellant with the crime in question. 9. On the other hand, leamed State counsel opposed the appeal and submitted that the evidence of Mangal Singh (PW-5) is sufficient for drawing inference that the appellant has committed the crime. 10.1n order to appreciate the arguments advancedon behalf of the parties, we have examinad the evidence availableon record. 11.1n the present case, homicidal death of the deceased as a result of ante- mortem injuries by strangulatlon has not been substantially disputed by the appellant, otherwise also establishal by the evidence of Dr. M.P. Maheshwar (PW-9) and autopsy report Ex. P-11 which reveal that death of the deceased was as a resutt of ^rangulation and was homicidal in nature. __———-—-—-— RiBit3;: •li^^-i^^^^^^?^''.~:'-^K^^ :r ^ B;ll 4 12.As regardscomplicity ofthe appellant in the crime in qu^tion, convictton ofthe appellant is solely based on the evidence of Mangal Singh (PW-5) who has deposed in hisevidence that the appellant made extra judicial confession before him that he has killed Surekha. In para 4 of his cross- examination, Mangal Singh (PW-5) has speciflcally deposed that the appellant has made extra judicial confession before the Statton House Officer in the Potice Station. l3.Any confessional datement made by the accused before ttie police officer is not admissible in evidence in terms of Sections 25,26 & 27 oi the Indian Evidence Act, except relating to dlscloser of facts. The evidence of Mangal Singh (PW-5) relating to extra judicial confession made by the appellant before the police is not admissible under the law. 14.0ther witnesses have not supported the case of the prosecution. In absence of any evidence against the appellant, conviction & sentenc^ of the appellant are not sustainabte under the law. 15-Forthe foregoing reasons, convictton ofthe appellant is not sustainable. Consequently, the appeal is allowed. Conviction & sentences of the appellant under Section 302ofthe I.P.C. are hereby set aslde and the appellant is acquitted of the said charge. The appellant is in custody, he be set at liberty forthwith, if not required In any other case^ Soma Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge