iii- l'gi L. IN THE HON’BLE HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal N0. U g /2008 APPELLANT : Ashok Das Manikpuri, S/o. Heera Ram, (IN JAIL) Aged about 29 years, R/(x Village Raikona, P.S. Sarsiwa, Distt Raipur (CG) VERSUS RESPONDENT State of Chhauisgarh, Through: Policc Station Sarsiwa, District - Raipur (CG) / APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE HIGH COURT OF CHHATTISGARH AT BILASPR U DiVision Bench: Hon’ble Shri Dhirendra Mishra, & Hon’ble Shri Rangnath Chandrakar,'JJ, Criminal Apeal No. 49 of 2008 p ppellant- Ashok Das Manikpuri A State of Chhattisgarh d Responent JUDGMENT FOR CONSIDEION RAT I SCI/- R.N. Chandrakar ‘ . Judge H 0 7 [8/201 v I / on’ble Shri Dhirendra Mishra J. H , Sd/— Judge "io¥t{ [$1201 ;:/ / POST FOR JUDGMENT ON ‘°§-8-2010 Sd/_ E JUDG o (1/8/2010 V 0 HIGH COURT OF CHHATTISGARH AT BILASPUR M DB: Hon’ble Shri Dhirendra Mishra & Hon’ble Shri R.N. Chandrakar, JJ. Criminal Appeal No. 49 of 2008 Appellant Ashok Das Manikpuri, S/o Heera Ram, Aged about 29 years, R/o Village Raikona, P.S. Sarsiwa, Distt. Raipur (0.6.). Responden‘ State of Chhattisgarh through Police‘ Station Sarsiwa, District Raipur CG). ' Criminal Appeal under Section 374 (2) of Cr.P.C-: .. Vs. ri Alok Nigam, counsel for the appellant. ';hri Chandresh Shrivastava, P.L. for the State JUDGMENT (Delivered on g‘i-kAugust, 2010) Per Ranqnath Chandraker, J The appellant has preferred this criminal appeal under Section 374(2) of the Code of Criminal Procedure against the judgment of conviction and order of sentence dated 7‘” December, 2007 passed in Session Trial No. 2/2007, whereby learned First Additional Sessons Judge, Baloda Bazar, has convicted the appellant for i commission of offence punishable under Sections 302 and 201 of the Indian Penal Code and sentenced him to undergo life imprisonment and fine of Rs. 500/—, and R.l. for five years and to pay fine of Rs. 500/—, in default of payment of fine, to undergo further R.l. for 2 ( .vS months, respectively for causing homicidal death of his wife namely Purnima and for causing disappearance of the evidence of murder. The case of theprosecution, in brief, as projected in the impugned judgment is that on 23.12.2006 at about 2.00 p.m., Heera Ram (PW/1) along with Karan and others was seated near Peepar chowk. On hearing noise from his house, he went to his house and saw his daughter-in-Iaw namely Purnima lying dead on the bed in burnt condition, the deceased was covered with counterpane and bed was burnt. Smell of kerosene was emanating from the room. The morgue intimation (Ex.P/1) was Iodged by Heera Ram (PW/1) father- in-Iaw of the deceased on 13.12.2006 at 04:04 p.m., on the basis of which F.l.R. (EXP—3) was registered. After registering the crime, Police proceeded to the scene of occurrence. inquest over the person of deceased was prepared vide Ex.P/5 in presence of witnesses. Thereafter, dead body was sent for autopsy to Primary Health Centre, Bilaigarh, where Dr. Kishore Kumar GandhanNa (PW- 13) conducted post mortem and gave his report vide Ex.P/12. Spot map was prepared by the Investigating Officer (EXP—2). Clothes of the deceased including clothes of the bed, jerry can cf kerosene and soil were seized vide EXP/6. After completing the usual investigation, charge sheet was filed in the Court of Chief Judicial Magistrate, Baloda Bazar, who in turn committed the case to the court of First Additional Sessions Judge, Baloda Bazar for trial. Learned Sessions Judge framed charges for commission of offence punishable under Section 302 and 201 of the ..~/ n \ ll l \ r. :‘ \ v.. \ IPC against the appellant for causing homicidal death of his wife Purnima, who abjured the guilt. The prosecution in order to establish the case against the appellant examined 14 witnesses in all. Thereafter, statement of the accused/appellant was recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded innocence and false implication. The trial Court after hearing counsel for the respective parties convicted and sentenced the appellant as mentioned in paragraph one of the judgment. Homicidal death of deceased Purnima is not in dispute. Even othenNise, from the evidence of Dr. Kishore Kumar Gandharwa (PW/13), who conducted postmortem over the person of deceased and proved his report.Ex.P/12 as described in para 5 of the impugned judgment and opined that deceased died as a result of asphyxia due to throttling and homicidal in nature, homicidal death of deceased is established. Learned counsel appearing for the appellant vehemently argued that the finding of the trial Court that the deceased died as a result of throttling is based on no evidence. He further argued that at the time of incident the appellant was not present inside the house. The trial Court failed to appreciate that extra judicial confession can be relied ‘upon by the court, if voluntary and corroborated by other evidence. Confession cannot be used against the accused until and unless the court is satisfied that it was voluntary. The trial Court failed to appreciate the evidence of Ghasiram PW/2 who has clearly n ii \ t \ \ stated in paragraph 4 that in presence of police the appellant herein admitted his guilt. Learned counsel further submits that there is no ye-witness to the incident and the case solely rests on extra judicial confession. On the‘ other hand, Shri Chandresh Shrlvastava, learned Panel awyer appearing on behalf of State has supported the impugned judgment. We have heard learned counsel for the parties and perused the record of the trial court. There is no eye-witness to the incident and the entire case of the prosecution rests upon extra judicial confession made before the witnesses Ghasidas (PW/2), Badri Prasad (PW/3), Kriparam Tandan (PW/5) & Laharam (PW/8). PW/1 -— Heera Ram has deposed that his daughter—in-law Purnima died on 23-12-2006. At the time of incident his wife Sukhmati Bai and children were present and his son Ashok —accused/appellant had gone to KariyanNar. He along with some other villagers was sitting near Peepal tree and on hearing the noise that Purnima died by setting herself on fire, he went to his house and saw that the door of the room was closed where Purnima was lying dead on the bed 'by co‘vering with counterpane. Thereafter he went to Kotwar Thanda Das from where they went to Police Station Sarsiwa and lodged the report. He further deposed that prior to one — two days of the incident, the appellant and the deceased were cooking food separately. This witness has not stated anything against the accused \ e L and has been declared hostile. In the leading questions put by the prosecution also, nothing could be elicited against him. PW/2 — Ghasidas has deposed that on hearing about the incident that the daughter-in-law of Heera Das died by setting herself on tire, he went to the house of the deceased from where smoke was emanating and saw her face in a burnt condition and her tongue was out. On enquiry about the whereabouts of the appellant, he wastoid that the appellant had gone to Kariyarwar. In the meantime, Thanda Ram came there and they went to KariyanNar to bring Ashok. Hiradas and Thanda Ram went to Police Station to lodge the report whereupon the police reached the spot and after 5 — 10 minutes of reaching the poiice, the accused also came there. On the next day, the Station House Officer interrogated the accused in the courtyard of his uncle Sobhadas in presence of the other villagers. On this, the accused admitted that he throttled his wife by pressing her neck and afterpouring kerosene oil, set her on fire and fled away. He fuither admitted that he closed the door from outside. ln his cross examination he admitted that at the time of making extra judicial confession by the accused some persons including police were present there. He specifically stated that the Station House Officer, Sarasiwa was present at some distance. He further stated that at the time when the accused lappellant was interrogated by Police, he, Padman, Kriparam Tandan (PW/5), Badri (PW/3) and ‘Laharam (PW/8) were present there. He categorically admitted the fact in para 13 and 14 that the accused/appellant was brought to the house of Sobhadas by the Police in a vehicle which is also corroborated by xi l \ \ l \ Badri Prasad (PW/3), who admitted the fact to be true that the accused/appellant was under the custody of police for two days, prior to bringing him to the house of Sobhadas by the police and after making confessional statement he was taken back by'the police. Kripa Ram Thandan (PW/5) and Laharam (PW/8), the other witnesses of the extra judicial confession allegedly made by the appellant turned hostile and have not supported the prosecution story. Kriparam Tandan (PW/5) only stated that he was stated out by the accused/appellant that his wife died by setting herself on fire and at that time he was not present in the house. After declaring hostile, both the witnesses were put to the leading questions but nothing could be elicited by the prosecution against'the accused/appellant. DW/1 Ramadhar, the real grand father of the deceased has deposed that before 10 — 11 months appellant - Ashok came to his house at village KariyanNar and told him to go “Bhajan Mela” and remained seated there for 1-2 hours while he was getting ready. In the meantime, two persons came there and told that some one from the family of Ashok waslsick. Thereafter, they came to Raikona. He did not enter the house. He further deposed that the deceased and accused together were living peacefully. Purnima used to quarrel with her mother-in-la‘w and was living separately from her. He came to know that Purnima died due to burning. DW/2 Puniram has deposed that on the date of incident the accused was at village Kariyarwar. When he came to know about the incident, he went to village Kariyarwar to bring Ashok — accused from where he brought the accused Ashok to his house. He further ltr‘ i \ deposed that the deased and th accused wre ling happily nd ec e e vi a peacefully. Puima used to rel with her mother-in-Ia and was rn quar w livig searateiy from her. He di not know the reason as to why she n p d die by setting heelf on ire. His version is duly corroborated by d rs f DW/1 Raadhar. m P13 W/ Dr. Kishe or Kmar u GananNa dh has deposed that on 2—11- 4 00 e nducted po rtm ver the dead body of Purnima 26 h co st moe o and roved his report of . P/., wherein it has bn described that p Ex 12 ee the da body of Purnim as urnt 98%. Occipital region of calp ed a w b s howing intact hairs 2% as not burnt, upper trunk, arms, back buttok superficial bn. Thigh and legs — 3rd deree rn. The hairs l ar gi omp he of fronta and pietal reon were cletely burnt. The soles of t fee were completely burnt. There was no blister formation r t o main signs of burning. he tongue wa protracted & eyes rgal T s blging. At the t of t the nostrils liqueed ood was present. u ip boh fi bl He s opine that mode of death was asphyxi caused by ha d a strangulation. It is homicidal in nature. Time of death was 24 — 36 hours fom t te of postmortem. In his cross examination he r he im admed that no erna injy as found over te body of he itt xtel ur w h t ecased. He dend the suggestio that before sttin hr on fire de ie n eg e her neck was pressed. Thus, the postmortem report (Ex.P/12) is doubtful in itself as the Doctor has given the contradictory statement. 17. On close scrutiny of the evidence, it is clear that there is no eye- witness to the incident. On perusal of the testimonies of the witnesses for extra judicial confession, it is clear that there are material discrepancies in their depositions and the testimonies of Ghasidas (PW/2) and Badri s w c ur g bu a Prasad‘ (PW/3) have not been corrobcrated by the other witnesses Krip‘ararh Tandan (PW/5) and Laharam (PW/8). Apart from this, it is .crystal clear from the evidence of Ghasidas (PW/2).and Badri Prasad (PW/8) that- the alleged extra judiciai confession was recorded in presence of police personnel and the accused Iappellant was.under the custody of police prior and after recording of the so-called extra judicial confession. Thus, the possibility of inducement or threatening cannot be denied; therefore, the same is inadmissible i_n the evidence as hit by Section 26 of the Evidence Act, 1872. Further more; there is no chain of circumstance to show that ‘the accused was present in the room at the time of occurrence as is very clear from the deposition of DW/1 Ramadhar and DW/2 Puniram which is duly corroborated by PW/1 Heera Ram. Thus, in the aforesaid circumstances, presumption drawn by the trial Court that since there Was dispute between appellant and the deceased regarding cooking food separately and it can be presumed that they being husband and wife, were present together in the house on the date and time of incident, cannot bejustified. Thus, considering overall evidence available on record, we are of the opinion that it would be unsafe to convict the appellant only on the basis of extra judicial confession. The appellant is entitled to benefit of doubt. In the result, the appeal succeeds. The impugned judgment of the conviction of the appellant under Sections 302 and 201 of the IPC and sentences imposed, as mentioned in paragraph 1 of this judgment, is hereby set aside. The appellant is acquitted of all the 18. charges. The appellant is in jail since 29-12—2006, therefore, he be set at liberty forthwith, if not required in any other case. 7*?«mxn,x\ sm- l /’ Sd/ e // Dmmmm MIsHRA l if rR-N- Chan-drakar Judge / Judge