*'"-. 1 £@ j| v^^ /*• &E!k Rookcharon son of Amarsai Rawat aged about 25 years resident of Bagbadi P.5, Tamnar bistrict Roigarh M.P.(Now CG) The State- of Through P.5. Lailui Raigarh AA.P. (Now C6) ja, District Smt. Indira Tripathi, counsel for the appeilant. Shri Rakesh Kumar Jha, &y. Sovemment Advocate for the State. Hon'bie Shrj T.P. Sharma & t _ .^«S_ 1 R,L.. .JJ (18.03.2010) 1. Chailenge in this appenl is to the judgment of conviction and order of sentence dated 14.10.1991, passed by the 1 Additional Ses^iorfs Judge, Raigarh in S.T.No.41/91, whereby and whereunder, learned Additional Ses^wis Judge, after holding the appellant guilty for commission of culpable homicide amounting to murder of J ,.^:^M.. ^•^^:^ i •^^^/ '^ ../.^ "ICmSE-"' ttll Laduram, conyicted the appeilant under Section 302 of the ZPC and sentenced to undergo iwprisonment for life. that the and 2. Tne conviction impugned is challenged on the ground without any iota of evidence sufficient for conviction ol i^3pel!ant, court below has convicted and sentenced the appel therebv committed iltegality. 3. The prosecution case in brief is that between the intervening niqht of 19 and 20 of December, 1990, deceased Ladurc.m went f"om his house for purchasing bidi, but he did not come back. Therefore, his son Raghunath (PW-2) searchsd his father, but he did not find his father. On second day, he found 1+ie dead body of his father under the Mango tree and cloth was tied around his neck. He went to Police Station and lodged merg intimation vide Ex. P/10. Investigcsting Officer left for- the scene of occurrence aind after sumrnoning witnesses, vide Ex. P/l, inquest over the dead body of deceased- Laduraim was prepared vide Ex. P/2. Piece of AK//, plain soil and blood stained soil was recoyered from the spot vide Ex. P/3. Th^ dead body was sent for autopsy to the C.H.C. Lailunga vide Ex.P/6. &r. S.N.Upadhyay (PW-15) conducted autopsy vide Ex. P/ll c and found li9ature mark oyer the neck of the deceased tied with cioth. He opined that the cause of death was strangulation and death was homicidal in nature. Sealed clothe found over the neck of the decfeased was seized vide Ex.P/5. Finally, F.I.R. was registered vide Ex. P/8. Stateme'n+s of the witnesses were recorded under Section 161 of the Code of Critninal Procedure, 1973( for short the Code). 5t. &I,p"il .. "'^ 4. After comp'ietion of the investigation, charge sheet was fiied before the Court of J.AA.F.C. Sharghoda, who in turn, committed the case to the Court of Sessions, from where, the learned 1 Additional Sessions Judge, raceived the cose on transfer for trlc.!. 5. In order to prove the guiit of the accused/appellant prosecution examined as many as 15 witnesses. The accused/ appel'ant was examined under Section 313 of the Code, where he denied the circumstances qspearing against him, innocence and false ifnplicatjon ir. crime in question was pleaded. 6. After affordirsg opportunity of hearing to parties, learned 1 Addstional Sessions Judge has convicted and sentenced the a&Deitants s.s aforementioned. 7. Vs/s have heard learned counsel for the parties at length and perussd the judgrrterit impugned ond record of the trial Court. 8. Learned counsel for- the appeilant vehemently argued that the aiiegecl conviction of the appellant is based on the extra judlcia! confession made by the appeilant to Ohansai (PW-6). His evidence does not inspires confidence and trustworthy and is not safe to rely jjpon it. 9. Qn tne other hand, lecrned counsel for the State opposed the ?etltion and submitted .that the evidence of Dhcnsai (PW-6) corroborated by the other evidence |o.n.d is sufficient for conviction of the appellant. [ss^i^^;a^aBaJ""Bitlnff~u • 'i NVt»a.!!i'.*-».iK;«s;Ki^i^; puosag •ADWID +U3M puo jonbi| 31)4. psuinsuo? puo ^onbji >;oo4. Asu;^ •agnoi) usij 04. suios Lj4.DunLj6oy j.o >iai|4.Dj. LJ+IM 6uo|o 4.UD[|sddo 344. uid QO'Z 4-noqo 4.0 /Dp 4.5^1j. +OLj4. ssuspt^a j3L{ ui pssodap SDL) (6-/t^(j) [Dqoij+og ssau+i.M jsq+ouy -UfiLj sjoj.sq uofsss^uos |9pipnf D^+XS SpDUI SDL| 4.UO||3ddo 31)4. 4.DIJ4. U131J4. p|04. (9-/V\d) JDSUDLJQ 4.Dl-;4. pSSodsp SADL) SaSS3bLl.jM ^SL|4.Q •Ull^ 3JOJ.aq 4.UD|]sddD 3LJ4. Aq SpDl.U UOISSSj.tfOO [opipnf DJ+XS stj4. 4-noqo ps+o-l-s stj 'X|4.Lisnbssqns 4.nq 'uoissaj.uoo [oioipnf DJ4.XS j.o Uin+oo.). sb|4. ]|34. +ou pip SL| 'ijSiijM ui '+u3tus+I:)+? at)4- papjosa-i ssijoj 'uau+oui SIL) U^\M 4.U3M aij '6uiujoui Aop puosas uo puo asnoi) SILJ u! psXo^s s|-j •uiD^npD-] pasosssp su^. p3||i>j SDL] 3L| 4.DLJ4. UIIL) p|04- 3l{ '|D8LU 6u|>|0+ JS4.^0 pUD JDSUI 3J.D pUO JOOp SLJ^. ps>j3ou>| puo asnoi) siq 04. au)D3 4.uD|jaddD sLj4. '4.u,6su 34.01 4.0 i»u^. pssodsp SDI) (9-/V\d) IDSUD^Q •4.|in6 3^4. ^o uoisss.j.uo? [Oioipnf Ou+xa SpDUI SOLj 4.UD||sddo SU^. tUOLjM SJOj.Sq (9-/Vtci) IDSUDLJQ j.O a3USpl.AS 3Lj4. uo pasoq s| +uD|jsddo 31)4. j.o UOI+SIAUOO 'psu^ssuos s! uoi+ssnb ui 9W.U9 ui +ucj|addo/pasn33D st]^. j.o Aj.pijdiuos 31^4. pjDGsj sy •^ ·ajn4.eu ui |opi3ituo'j SDM i|4.Dap puo a^n+oGij 3L|+ 6uisn Aq pa4.D|n6uDJ4.s ussq SDL{ 4.nq 'ap.sins pauituuioo 4.ou SDI, 4.UD]j3ddD 3U4- 4-t>44- S+3C.J. 31)4. j.0 sA;4.sa66ns SJD pasDsoap 311,4. j.o Xpoq 3i.{+ uo punoj. stuo+dui/? puo sasuo+suinoji? ayj_ 'H/(J •X3 +.(oda-' A?do+nD puo (c'[-/Vtd5 ADAi|pDdfi •fsrs ••IQ i-o souapiAs 344. Aq ps^sjiq&i.ss Sl +1 'pUDfcj JSljJ-O SL|4. UQ •4-i.a>]|sddo 8^4. Xq ps+ndsip AjiDi+uo+sqns usaq 4.ou SDL) uicjnpo-j psscsssp 344. 04. Xjnfui |O+DJ. lus+uoiu aj-uo j.o j.|nssu o s»q+Dsp |Op!3jUiOLj '3503 4.U3S8jd 3U,4. UI 'uoi+nsasojd ai{4. j.o j.|Dtjsq uo pssnppo ssuapjAa 3ij+ psuiuinxa sAcy, s.ivi 'ssi+Jod ai|4. j.o .(.icqaq uo pssuoApD S4.usiun6jo SL)+ s+Disadddo 04. ^sp.jo uj •Q'[ f. sl 1 day, dead body of father of Ragunath was found under the Mango tree. In her cross examination she has deposed that she has not stated to Polica the name of the appeltant, only she has told that brother in law of Raghunath had come to her house. 12. Statement of the witness Dhosisai (PW-6) was recorded by R. P. Pano'ey yW-11), who has deposed in para 3 of his evidence that he has first recorded the statement of Dhansai on 29.12.90, but the diary reyealed That fir-st statement under Section 161 Cr.P.C. was recorded on 22.12.1990. Prosecution .has not explained that ofter recording of statement of bhansai what was the cause for recording 'nis second statement. The evidence of Dhansai revealed that at tiie first instance, he has not stated tiie factum of extra Judicial confession to the police, but he had stated the factum of extra Judicia! confession to other witnesses, which revealed that he was not under fear cnd t'nere was no propriet/ for considering and withholding such information. In case of conviction baised on extra judicia! confession, prosecution is required to prove that the extra Judicial confession was made by the appellont yoluntarily and there was some entrustment upon the person, to whom the accused made extra Judicial confession. 13. In the present case, prosecution has not adduced any evidence to show that whether the appellant was having any trust upon Dhttn&i (PW-6) that he will save him from any accusation. If the extra judiciai confessten made to Dhansai (PVi/-6) by the .cppellant then why Dhansai (PW-6) !hds not stated the same on 20.12.1990 when first time his stdtement was recorded. This ^'—';l="?B5]^aSiB t>'^^ "^;- «;!'' M circumstouice casts doubt upon the credibility of the evidence of bhansai (PW-6). Except the eyidence of Dhansai (PW-6), prosecution has not adduced any other evidence in support of its case. The evidence of Dhansoi (PW-6) does not inspire confidence wd trustworthy and is not sofe to rely that too for the conyiction of the appel!ant for commission of the'heinous offence of murder. Suspicion, however strong, cannot take place of lega! evidence. 14. After appreciating the evidence avai!o,ble on record, the learned Additional Sessions Jud9e has conyicted and sentenced the appeliant under Section 302 of the IPC, but has not considered the fact that the evidence of &houisai (PW-6) is not of worth credence and thereby committed ii!egality. 15. For the foregoing reasons, the conviction and sentence of the cypellant under Section 302 of the IPC is not sustainable under the law. Corisequently, the appeal deserves to be allovifed and it is alloived. The conviction and sentence of the qspellant under Section 302 of the IPC is hereby set aside. He be set at iiberty forthwith, if not required in any other ca.se.. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge .^A/v^'fcei- »n~"»I^B'BN ^^s^s^^^^^^^^^^s's^'