»Bench (-riminal) III 1MB HIGH COURI OF J-UE.ICnTaS AT J.tB.-ttUR MtE. Crirninal Appeai No. '*~-'^ /2000 Aa AFi?ELLANTi - TinjaSl) '' /^ <^-' Hunna alias i'ishtar S-atnami ^.'"'aged about 40 years, son ^f ff. Bodhi, Raffi Sa'cnami^ occupation scu'ltivator, resicient of villaae Chaleraway, PS Kandghat ,Qistt. ^' Durg K.E. Veraus. RSSEONDENTs- The State of H,.E./ / P.S.i'Tandqhat Distt. Durq I-i] ^FFSAL UWD3R S3CTIW 374(2) C5? TSiE. CODE OE' CRIMIidL E'ROCSDURE. ff^ _-;'•' \\f". tyr^ :.^ '33 DIVISION BENCH: HON. SHRI V1JAYKUMAR SHRIVASTAVA & HON^SHRI DHIRENDRAMISHRA.J J- Crimlnal Appeai No.295 of2000 Appellant Respondent •',' Munna@MehtarSatnami •s StateofM.P. Smt. Meena Shastri, learned counse! forthe appellant. Shri Akhil Mishra, learned P.L. for the State. ^' ORALJUDGMENT (1@06/2006) ^-5 tl^ PerDhirendraMishra,,J By this appeal underSectiQn 374(2) ofthe Code of Criminal Procedure the accused/appeilant has questioned the legality and correctness of the judgment of conviction and order of sentence dated 30.11.99 passed by Additional Sessions Judge, Bemetara, Distt. Durg in S.T.No.237/98 whereby the leamed Additional Sessions Judge after holding the accused/appellant guiityfor the commission of offence under Sections 302 of the Indian Penal Code sentenced him to undergo imprisonment for life and to pay a fine of Rs. 500/-, in default of paymsnt of fine to further undergo Rl for two months for committing the murder' of one Radheshyam ©Raghu. Case of the prosecution in brief is that appellant Munna @ Mehtar Satnami himselflodged the report in police outpostlVlaaro, police station Naandghat on 03.06.98 at about 19.15 hrs. informing that he has committed the murdeF.ofRaghu as he was eve-teasing with his sister iVlani Bai at about 6.00 p.m. by asSaulting two-three axe btows on his s% l^ K<-a-4 i/faand. On the basis of this information, crime was registered ynder Section 302 of the IPC. The police proceeded to the sceneof occurrence for investigation. Merg intimation of Ex.P-Swas recorded on the basis of information given by F.W.-2 Gau Das. Inquestover the body ofthe deceased Was performed on 04.0g.98 yide Ex.P-7 in the presence of the witnesses. Body of deceased Radheshyam was sent for autopsy to Primary Health Centre, Nawagarh where Dr.S.K.Sharma (P.W.-11) conducted the post mortem over the body ofthe deceased and submitted his-report of Ex.P-12,The broken banglesand one bangle of Mani Bai was seized from near her house where the incidentoccurred vide Ex.P- nf. 1. Bieycie of the deceased was seized from the place of incidentvide Ex.P-8. Clothing of the appellant worn by him during the tirne of incident wasseized vide Ex.P-9. Bfqod stained axe lyjng nearthedeadbody of the deeeased was seized from the appellant vide Ex. P-10. Clothingof deceased Radheshyam was .seized vide Ex;P-11. Plain soil, btood stained sojl; blood stained HMT wateh and broken bahgles were taken info p&ss^ssiQn from the |:llaGS °f inc'slgnt yjde ExP-13. The weaponof ^ off6nce-ax|j^(Bt3gi^^it|Te|wc^en p^was^lrt^fc |^<s|l^is|%il3iS|^FH|)ni%ria|ftielil^or|iopm injuries 5?;^rai^riii|QMF|^e;;Boc|^Jo4r^je!c^is^^g(iKeshy^)coyld be.eaused, by the axe.:i^anngi?SpRarelsofitHesappel|aihtwere^^^^^^^^ who submitteci his report and advised that the seized article be sent to the Forensic Science Laboratory foranalysis vide Ex.P-21. The seized articles were sent to FSL vide Ex.P-17 and the report of the FSL is Ex.P- 25. The articles were further senf to Seroiogist andChemicai Examiner for ascertaining the origin of the blood group and the report of the Serologist is Ex.P-26. Aft'ar completing the investigation charge sheet was filed ih the Court of JudicialMagistrate First Class, Bemetara, Distt. Durgwho in turn com'mitted the case to the Sessions Judge, Durg from where the learned Additional Sessions Judge received the case ot .:1-1h- ^ 5f ,:' ^r 3. o 4. transfer for trial. Learned Additional Sessions Judge framed the charge under Section 302 ofthe IPC against the appeilant who abjured the guiit. The prosecution in order to establish the chaige against the accused/appetlant examined as many as seventeen witnesses. Thereafter statement ofthe accused/appellant was also recorded under Secfion 313 of the Cr.P.C. ih which' the appellant denied the cireumstances appearmg against Him jn the prosecytion case and submjtted that he did npt'lodge any report in the police stationand the signatures were obtained in a blank proforma. He pleaded InnocencB and false implication. However learned trial Court held the appellant guilty and convicted and sentenced him as mentionedabove. Homieidal death^ of deceased Radheshyam is not in dispute. Even otherwise frorn fhe pc^ m<3rtem TOport?,art9itHe;sfatemen^^ Sharma(P.W.-11)whotiasfbundnumberofin]uneS!deseribed?6elowand has opined that the cause of death is injury pver the skull region and the sarae is homicidal in nature,homicidal death ofdeceased Radheshyam is established. Injuries noticed on post mortem : i) Incised wound in the size of 3" x 1"x2" deep dry clotted blood present. Intemal ear also involved wound communiGating with cranial cavity verticalin direction across the left ear. ii) Incised wound in the sjze'of 2 %" x % " bone deep dry clottect blobd present Antero poSterior directjon left parietal regjon ;_: •-. ; r '1-'" :. : .:,; iii)tncised'woundob!iquerightparitelregioninthesizeof5"x •1":bonedeep.°..•":::.: ,".! • : •1. :1:-"- :\ .• '' • '.' iv) Incised wound across tbe mjddle of the left collor bone in aiiK •!i! >~\° the size of 2"x 1"skin and bone deep. Collpr bone involved partially. . . • ^ : The only question to be decided in this appeal is whethep the prosecution has been able to establish.the'iinvolvenaentof the appellant in the commission of the offenee by admissible and cpgent evicfence. The case of the pro?ecution !s based;on the state(rient of eye witnesses |P.W.-1 andP.VV.-SnamelylVlamBaianclBasahBaj.HoweverbQthlhewitnesses have turned hostile and they have not supported the case |pf the prosecution. . . *?.. Learned trial Court has held the appellant guilty on the basis of circumstantial eyid^nee. TheciroumstancesrelieduponbythetrialCoyrt may.b6Summari2ed^as.underl.:,:,..:_ r-^ . :.,' kd:,. i) The aceused/appellant.himself lodged^ttTe report 6f the incident. P.W.-TIVIani Bai has steted on oath that deceased Raghu caught hold of her hand whereupon she shouted for Help and atthe samefirne her brother Munna came there. ii) In her statement before the^.Judicial Magistrate First Class, Bemetara ynder Section 164 of the Cr.P.C witaess Mani Bai had stated that her brother Munna assaulted the deceased'with -axe and there is no allegatien that the abo\^i statement was .recorded .foreibly bythe police. lii) P.W.-4 Anjor Das has also stated that when He was returnjng home in the <®yeriing Ram Krishna & Ghanshyam informed ^that Munna lias killed his ^^S&M.^ ^tlll%^lil^^'?3S.:i^: ^vi^liii!^' ?fii^ ^I^^Jil5^^ '^'^' .^^^^T^^^^^^^ ^^^: '~^~ ••y-sw^^ A^.l^.^......^ 1] brother Raghu and his dead body is lying in front of the houseofManiBai. iv) P.W.-17 Ram Lochan who is the real brother of accused/appellant has also stated that his parents ^ informedthat Munna-'haskilled Raghu. v) P.W.-2 Gau Das has signed the First Information Reportof Ex.P-3 as a witness, has stated thatwhen he was passing from near the police outpost Maaro he was called by the Constable where he was told ff\at Munna has lodged the report stating that he has murdered Raghu with axe and thus the admission content inthe First Informatipn Report is admissible as per Section 21 : of the Evidence Act. Though tKe inculpatory part of the First Information Report is not admissible however, the fact mentioned in the FIR that the deceased was sitting near his sisfer Mani Baiand had caught hold of her hand.is admissible. This informatiori is duly corroborated by the statement of ^ v P.W.-1 ManiBai. vi) The axe and the vest seized from the appellant as per Ex.P-9 contain human blood as per report ofEx.P-26 , and injuries presentover the person of the deceased could becaused bytheaboveaxe. 7. LearnedcounselfortheappellantsubmitsthatinculpatorypartoftheFIR was inadmjssibleand the Court belowwas nQtjustified in relying on that partoftheFIRandinamvingtotheconclusionofguiltofthe appellant. She furthersubmits thait the finding^ofthe trial Court is based on the statement ofthe hostife witness P.W.-1 Mani Bai. Itisfurther submitted <c- that even theseizure effected bythe appellant has not been proved as both-the witnesses P.W.-6 Bhegwani and P.W.-9 Suresh have turned hostile and they have not supported the case of prosecution and therefore no alleged seizure of blood stained clothing of the appellant could be taken into consideration <for holding the appellant guilty. The chain of cireumstance relied upon by the prosecution has not been proved and the same is not complete and in the aforesaid circumstances the Cpurt below ought to have extended the benefit ofdoubt to the appellant. Relying uponthe judgment ofA//? f997SC 496 reported in the matter of B.A.RamalahVs.StateofA.P. it is submitted Vhat'fwhere the FIR is lodged by the accused himself the inculpatory statamant of the accused cannot be used even againstthe maker unless its maker offers himself as a witness in trial it's limlted Use is as an admisslon against its maker alone unless the same does not amount to confession." 8. In the alternative it is argued that from the case of prosecution itself it can be evident that the incident occurred in a spur of moment in sudden provocation without any premeditation as the deceased was eve teasing with the sister of the appellant in his presence and therefore the offence does nottravel beyond Section 304-llofthe IPC. 9. On the other hand learned counsel for the State supports the judgment of the trial Court. 10. We have heard learned counsel for the parties. We have perused the record, gone throughtheevidenceandtheimpugnedjudgment.ltistrue fhatthe inculpatory part of the FIR lodged by the appellant could not be used against the appellant for the purposes of his conviction, nevertheless the conduct ofthe appellaTif in lodging the FIR is very much 7 ^> admissible as per Section 8 of the Evidence Act and in the instant case the report has been lodged by the appellant just 45 minutes after the ineident and on the basis of this report investigating agency came into action and proceeded for investigation and on such investigation.body of the deceased was found ,from;'the place where the appellaht has ^-c mentioned the incident has occurred. Even otherwise on the basis of the information of the appellant during investigation on being produeed by the appellant, his weanng apparels wereseized by the police vide Ex.P- 9. Blood stained axe was also seized from the appellant. Seized articles were sent forchemical examjnation t6 the FSL where the axe Sid vest seized from the accused/appellant was fouhd t6 be stained with blood. These articles were senf to the Serologist for confirmation of origin and the Serologist in the report 6f Ex.P-26 has categorically mentioned that the axe and banyan seized from the appellantcontained human blood. 11. P.W.-1 IVIani Bai, sister of the appellant has stated that on the date of incidentthe deceased Raghu came toher houseat about 6.00 p.m. and i caught hold of her hand and tried to drag her. In the meanwhile her 1 brother Munna came there. Howeyer subsequently she has stated that ^ Raghuranawayfromthatplaee.Thiswitnesshasturned hostile as she resiled from her earlier stetement. But the statement of this witness partially supports the case of prosecution thatthe incidenttook place as narrated in the FIR, in her house when Raghu came there and caugtit hpldof her hand. , ! . ; ' : : . '! ! 1: • -:.. , 112. P.W.-2 Gau Das has also stated that on the date of incident whsh he 1 reached near Maro police outpost hesawthe accused sittingtherewith i : . _. . ./s:.-1. ..' . 1 -.. . ' ... ..:'.. .;': ..( ...::' 1 the Constable Oayakwad and Vishnu. He was called by the |police 1 . :_ • .:. ;' . ••' ' 1..,:''.-^ .•-;., :.s ._. . .. ;' l./r. -• ConstableandthereaGcusecl/appellahtMunnaconfessedhisguilt. ^ 13. P.W.-4Anjor Das has stated thatthaf on the basis of information given by Ramkrishna and Ghanshyam that his brother Raghu hasTbeen killed byMunnaandhiSdeadbodyislying nearthehouseofManiBai,hehad lodged thereport. \- v4. From the evidence available on record jt is evident that the investigation of the crime was commenced on the basis of FIR given by the accused. The body ofdeceased Radheshyam @ Raghu was found at the place mentioned in the FIR by'the appellant, the axe and clothing seizedfrom the appellant were stained with human blpod. P.W.-1 Mani Bai has stated in her statement that on the date of incident Raghu came to her house and caught hold of her hand and atthesame time appellant came there. On the basis of the above circumstance, involvement of the appellant in the erime in question is established and the pourt below has not committed any illegality by holding theappellant guilty ofcausing the death ofRadheshyam @ Raghu. 15. Now the question for adjudication ofthis appeal iswhether the appellant cpmmitted the crime in questionafter premeditation with an intention to cause death of Radheshyam. From the evidence available on record we find that when the appellant returned from the pond he saw that deceased Radheshyam caught hold the hand of his sister Mani Bai and even after he reached his house, he did not teave her hand and fleefrom the place of incident and thus in .sudden and grave provocation he picked up the axe and gave two-three blows over the person of the deceased which resultedin his death. Thus, the manner in which the offence is committed by the appellant, it could not be said that the appellant committed tbe offence with pre meditationwith an intention to cause the death of the deceased and the incident took place under sudden and grave prdvocation in th.e spur of monient and in thiscircumstanee, the f'f. ^> Court below was notjustifiecT in holding theappellant guilty under Section 302 of the IPG. Aecordingly the judgment of the trial Geurt is set aside and instead the appellant is convicted under section 304-11 of the IPC and sentenced to undergo imprisonment for eight years. Learned counsel forthe accused/appellant submitsthat the appellant is in jail since 05.06.1998 and as sych'he has already completed more than 8 years'jail sentence which is not disputed by learned counsel for the State. / In view of the above, the accused/appellant is directed to be set at liberty forthwith if not regylredjn_any_othercase. __dA-—— Sd/- DHIBENDRA MISHRA S Judge Sd//- V.K.Shrivastava Judge r ••+- y'j';