HIGH COURT O^F CHHATTISGARH AT 3ILASPUR &-immalAppeai No.l 194/2002 APPELLANTS (Ia jail) j2 Munshi Sin.gh s/o Sukhal Korba aged 35 years, R/o Chtsatasarai, P.S. Katghora, District Korba (CG) Anaiit Siagh s/o Dharmu Korba aged 30 years, R/o viU^e „ Chliatasarai, P.S. Katghora, '' District Korba (CG; State of Cbliattisgarh, Through PS Katghora, District Korba (CG) CKiaSINAL APPBAL U/S 374 (2) OF THE; CODE OF CRIMINAL Shri K.K. Siugh, counsel for fhe appeBaiits. Shri Arun Sao, Goverament Advocate for the State. Hon'Ue Shrl T.P. Sharma Ss Hon'bte Shri R.L.Jhaawar.JJ (30.11.2010) Chailenge iu this appeal is to tlie judginent of conviction aiid order of sentence dated 30.10.2002, passed by the Sessions Judge, Bilaspur (CG) iu S.T.No.521/2001, whercby and whereunder fue learaed Sessions Judge, after holdiug the appellaiits guUty for comiiussion of culpable lioniicide auiountui^ to murder of Godhuram aad concealiag the evidence of cruainal case, convicted fhe appeUants under Sections 302 and 201 ofthe IPC aad sentenced each of fhe appellant for life imprisonment "s»eBS?g^ aad R.l. for 3 yeara and to pay fiiie of Rs.200/-, in default of payiaent offine to furfher undergo R.I. for 1 uionfh. respectively. 2. The conviction fa unpugned on the ground that without fhere being any iota 01 evidence sufficient for conviction of fhe appeUaats, fiie learaed Sessions Judge has convicted and sentenced fh.e -appeUants as aforeinentioned aud fhereby committed iUegality. <i 3. As per case of prosecution, on fatefal day of 3.11.2001, at about 05.00 pia, Godhuiaja (since deceased) aad fhe appellants were quarreliag on some dispute near a nala, on which, fhe appeliaats Muiishi Siagh assaulted him by axe aad Anant Singh assaulted bv stick aad tlieicby caused his instaataaeous deafh; ttiereafter, they buried fh.e dead body ia a ditch. As Godhuraxa was inissiag from his viUage Chattasarai, Sarpaach and vffllagers prepared iatiiaation relatm.g to inui-der of Godhuraia and sent it to Police Station, Katghora. The Investigating OfBcer came to vmage Chhatasarai on 7.11.2001. On 7.11.2001 both fhe appeUants made extrajudicial conlession before Lagnu Raai (PW- 2) and Hariraia (PW-3) in presence of Barailia (PW-6). Baraiha (PW-6) lodged merg iatimation aad FIR vide Ex. P/16 aad P/17. After suiainoning witnesses vide Ex. P/11 and exhumiag fhe dead body n-om the ditch, iuquest over the dead body was prepared vide Ex. P/10. Dead body was sent for autopsy to Govem-ment Hospital, Korba vide Ex. P/l, where Dr. A.R. Porte conducted autopsy vide Ex. P/2 and found fottowiag iajuries : i. Dead body was decoiuposed Maggots were present Foul smeB was coining Irom fhe body Skin was peeled of Incised wouad of 5 x 2 cm over right sule of fhe occipital region up to bone deep a. Ul. IV V. !hl,'|!,!r-!!:'1"~ vi Snc^ed wouad of 5 x 2 cui on left parietal region of scalp up to bone deep vii. Incised woiind of 5 x 2 cni over occipital-parietal region on left side up to bone deep viii. One cut wound of 3 x 2 cin up to bone deep over left occipital region ix. Incisedwound of5 x3 cin overleftear f<- x. Clotted blood was f6un,d on the eyebrow asd haeniatoiuina was found on face and ear ' . xi. clotted blood was foiuid on left elbow of4x3 cia area xii. Cut fiacture bfback part of skull was found. Injuries were aate inortein in nature. Mode of deafh was shock. Plam soil asd blood stained soil was iccovered froni fhe spot vide Ex. P/6. Spot uiap was prepared vide Ex. P/7. During the course of iavestigatiou appeUaat Munshi Singh was taken ia.to custody; he made disclosure statenient of axe vide Ex. P/4; same was recovered at his iustance vide Ex, P/5. One stickwas seized froin appeUant Anaut Siugh vide Ex. P/9 on the basis of his ineinoranduni Ex. P/12. Viscera ofthe deceased was seized vide Ex. P/ 13. Dehati Nalici was recorded on fhe spot vide Ex. P/14. Seized articles were sent for cheinical examuiation vide Ex. P/ 21 and presence of blood on the axe recovered ii-oin appeUaut Munshi Siiigh was conEu-aied vide Ex. P/ 23. Stateinents of fhe witnesses were recorded under Sectioa 161 of the Code of Crim-mal Procedure, 1973 (in short fhe Code). 4. After coinpletion of tavestigation, charge sheet was ffled before Jiidicial Magistrate First Class, Katghora, who m tum, coiuiiutted fhe case to fhe Coyrt of Sessions, Bilaspur, where, fhe leamed Sessions Judge conducted fhe trial. Swimiwss ww!W3si3Ssi 5. In order to prove fhe guilt of the accused/appellauts, prosecution exaiained as inany as 8 witnesses. Accused were exaiaiaed uiider Section 313 of the Code, ia which, tbey denied the circuiustances appearing agaiust theiu, innocence and false impUcation iu crime in question was clauned. 6. After affordiug opportunity of hearing to fhe parties, fhe leamed Sessions Judge ''has convicted aad sentenced fhe appeUauts as aforesaid nientioaed. 7. We have heard Shri K.K. Siugh, learaed counsel for fhe appeUaats and Shri Arun Sao, learaed Govemiaent Advocate for the State, perused ftie judgment impugned aad record of the trial Court. 8. Learaed counsel for fhe appeBaats veheinently argued fhat in the present case, he is not disputing tiie hoiaicidal death of deceased Godhuram.; as per case of prosecution, conviction ofthe appellants is based on extra judicial confession made by fhe appellaats toefore Lagau Ram (PW-2) and Hariram (PW-3), which does not inspire confidenee and trustworthy to rely for conviction of fh.e appeUaiits that too for coTnmission of fhe heiaous ofience of iniu-der. He ftuther argued that as per evidence of Lagnu Ram (PW-2) and Harirain (PW-3), extra judicial confession was niade niuch before lodgiitg of the written report Ex. D/2; fhe written report Ex. D/2 does not contaia the names of appellants as assailaats aad thercfore, it m.akes the extra judicial confession doubtftd. He placed reliaace ou AIR 2007 SC 2316. State of MaS.hiia Preitiesh V. Mseir, m which, the Apex Court held fhat ia case of extra judicial confessioa inade m.uch before lodging of fhe FIR, noii-m.entioning fhe name of fhe appeUant in FIR inakes reliability doubtful. He further placed reliauce on. AIR 200S SC 4352, Sidharth. ctc.ete.. AooeKants V. State of Bihcir, FTFra? U l;i!l ? :S-i^i^i&^- Sespondeitt, m. which, fhe Apex Court held fhat confessioa voluntarily made by fhe accused is only reliable. He argued that in absence of any ofher evidence, convictiou of the appeUauts under Sections 302 and 201 offhe IPC is not sustamable under the law. 9. On fhe other hand, leanued counsel for the State opposed these arguments aud sul)nutted that evidence of Lagnu Raui (PW- 2) aiid HanraDi (PW-3) is suf&cient for conviction of the appellarits aud Court below has rightly convicted aad senteaced the appeUants as aforesaid iiientioned. 10. In order to appreciate the arguiuents advaaced onbehalfof the parties, we have exaxuined fhe evidence adduced on behalf of the prosecution. 11. In fhe present case, hoinicidal death of Godhuram has not been substaatially disputed on behalf fiie appeUaats; oa fhe ofher hand, it is estabUshed by fhe evidence of Dr. A.R.Porte (PW- 1) aad autopsy report, Ex. P/2. 12. As regards coinplicity ofthe accused/appeUaats ia criuie ia question is concerued, conviction of the appeBants is based on extra judicial confession uiade before Lagnu Ram. (PW-2) and Hariram (PW-3). K.N. Verma (PW-7) has admitted m para 10 of his cross examin.ation ttiat he received tiie iaformation relating to inurder of Godhuram vide Ex. D/2 on 4.11.2001, but he went to fhe spot on 7.11.2001 for iiiakuig iaquiry in. the matter, where he registered Dehati laerg aad Dehati NaU.ci. Ex. D/2 revealed that Godhuram. has been inurdered and it was mtimatpd to Sarpaacli and otliers by the Kotwar i.e. Hariram (PW-3). As per evidence of Lagnu Rani (PW-2), both flie appellaats came to his house and requested him to accompany up to fhe house of Kotwar- Hariram (PW-3) then. he eat along wifh fh.e appellaats to fhe ..-:.;a-<!ieSSB ';;':''^^<' 'i^^^;^'^^ ^^...iff,,fSS.S!S,i^t house of Kotwar where they inade extra judicial confession before him to the Kotwar. Hariram (PW-3) has also corroborated the evidence of Lagnu Ram (PW-2). In para 7 aud 8 of his cross exaimnation, Hariram (PW-3) has specificaUy deposed fhat before tendering Ex. D/2, written at fhe iustaace of Sarpanch to fhe PoUce, he was having knowledge that the appellants have coiuinitted niurder of Gtodhuraai on fhe basis of extra judicial tl. confession, but he has viot told this fact to the Sarpanch even fhe fact of extra judicial confession, which does not finds place ia Ex. D/2 the first iafomiatLon to the Police. Hariram (PW-3) has not explained as to why he has not stated ftiis importaat fact to the PoUce at the tiiae oftenderiug Ex. D/2. 13. In these circumstances, fhe factum of extra judicial confession made before Lagnu Ram (PW-2) and Hariram (PW-3) becoxaes suspicious as is held in fhe uiatter of Stette ofltteitthyia Pradesh V. Msar. AJR 2007 SC 2326. The evidence of Lagnu Ram (PW-2) and Hariram (PW-3) does not inspire confiden.ee and trustworfby and there is not other evidence agaiust the appeUants, therefore, conviction and sentence of the appeUants under Sections 302 aad 201 offhe IPC is not sustamable under fhe law. 14. Consequentiy, fhe appeal is ailowed. Conviction and sentence ofthe appeUants uxider Sections 302 aad 201 offhe IPC is hereby set aside. They be set at Uberty at once, if not required ui aay other case. -—~ Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge niii