IN THE HIGH OOTJBT OF JBOICATCRE AT BILASPOR(CHHATTISGAKH) MPPEAL UNDE& SEC. 374(2) CR.P.C. CR.^ PEAb »). t 35 /2G01. APPELL&NT (In custody) BBSPONESNT Belto Payko aged 30 years son of Beko Kaxlyo, cultivatorf rasldent of vlllage Lalaguda Lallpara» P.S.Kodenar Qistt.Bastar (Chhattisgajri-i) VBRSUS Stafce of Ghhattisgarh Through; p.S.Kodenar Oistt.Bastar, FIBST APPE&L BEPOBE THIS HON'aE OOTJRT. HI6H COURT OF CHHATTIS6ARH ; BILASPUR CRIMINAL APPEAL N0. 139 OF 2001 BetoPayko Vs. State of ChhatMsgarh COftAM :- HON'BLE SHRI FAKHRUDbIN. J & HON'BLE 3HRI DHIREN&RA MISHRA. J Prosent :- Shri Suresh Pandey and Shri Chandra Siekhar Bajpai, counsetfor the appellont. Shri U.N.S. Deo, ©ovt.Advocate /Addl. Public Prosecutor fortheState. Per Dhirendra Mishra. J JU&6MENT The oppelhnt has preferred this appeal under Section 374(2) of the Code of Criminal Procedure against the impugned judgment dated 9-12-2000 passed by the learned Sessions Judge, Bas-tar in 5essions Trial ^k>.279/l999 by which the leamed Sessions Judges aft-er holdmg the appeltant guiity for causing death of deceased Beko Chalki has comicted -Hie appellont under Section 302 of the Indion Penal Code ond sentenced to under90 imprisonment 2. Cose of -the prosecution in brief is that on 30-4-1999 Beko Kumme -5) in company of Kotwou-, Poctel & butgo reached Police Station Kodenar and gave information to this effect that yesterdoy at about 6.30 am her y husbond Chalki was gohg to •the house of his brother in hw Bododi AAadia ond at Ihat time she was in the home with her son Sonku and other children. After some time her husbcnd Chalki come there shouting thort Payko has attacked him by arrow whereupon dne SBfw -tha* an arrow was pierced left side of the stoniach. 1-ter husband informed that Payko was hiding behind tnmarind tree armed with bow-and'.'arrow and shot an cu-row towards hhn. After this she narrated the incident to Madcla Lachu and Butlu, who reached •there ond her husband mformed them also that Payko has shot on arrow on him. A ponchayat was convened in theaftemoon in the village and in the said panchoyat also on enquiry Paykoadmitted that he shot an arrow on Chalki on account of tand retated dispute. Chalki died on way while he was bemg taken to Kitepal hospital. 3. On -the basis of this inforination crime No.33/1999 under Section 302 of 1he Indian Penal Code was registered. Thepoiice proceeded for •the scene of occurrence for investjgation. Inquest over •riie dead body was prepdtf«d in the presence of witnesses vide Ex.P/3. The <tead body of Chalki was sent for post mortsm to Primary Health Center, Badekilepai vide Ex.P/1-A wihere t>r. L.L Jurri (PW-1) conducted •the post mortem andsubmitted his report-as per Ex.P/1. Msrg intimation (Ex.P/6) was recorded on -Hie basis of mformation given by the wife of the deceased Beko Kumme (PW-5). burin9 investigation a bamboo made bow and arrow was seized vide Ex.P/4. A blood stauned arrow and a pink colour riiawl were seized on being produced by Constcble Ram -y~ Nanhan Karoli (Police No.1007) vide ExJ>/9. The seized articles being the blood stained & plain soil, bloodstained arrow and pink colour shawl were sent for examination to Primary Heal'th Genter, Badekilepal. After (sxamination of the articles the Doctor has submitted his report' vide Ex.P/2 and advised to send the art'icles for chemicerf examination to detect for human blood. The above seized articles were sent to tlie Forensic Sctence Laboratory for cheniical examination vide Ex.P/10. After completing -the investigation dnargs sheet was filed in the Court- of Judicial Magistrate First C\ass, Ja9d<ripur who in turn cominitted the case to •the C'ourt' of Sessions Judge for trial. 4. Leomed Sessions Judge .framed chai^e under section 302 of •the Indian Penai Code. However, the appellant abjured the guilt. 5. The proaecution in order to establish the charge against the appellant has examined 7 wfhiesses in all. Statement of the accused was also recorded under section 313 of the Code of Criminal Procedure in which he denied the circumstances appearing agamst him in the prosecution case. Leamed trwii Court after hearing the Public Prosecutor and -the counsel for the appeltant held the oppeltant guiityand convicted A sentenced him as mentionedabove. 6. Homicidal death of the deceased Beko Chalki is not in dispute. Even otherwise from perusal of post mortem report (Ex.P/1) submitted by Dr. L.L. Jurri (PW-1) who conducted the post mbrtem over the dead body of the deceased, Jt appears that the boctor noticed a pierced wound on the right ^ iiSii«&!t i!1"!'Sa^Ei side of the stomach whlch penetrated from the stomach portion and exited from back. The Doctor opined that the cause of death is haemorrhcge and shock due to injuriesover mesenteric arteries and the same was homicidal in nature. The homicidal death of deceased Beko Chalki is established. The conviction of the oppellant is based on oral dying declaration of ttie deceased and extra judicial confession made by^'the oppeltant. \. 7. Leamed counsel for the appetlont submitted that the evidence given by PW-5 Beko Kumme in her Court statement is in comptete variance with the case of the prosecutton. He further submitted thcrt- contrary to the case of the pposecution this witness has stated that her husband had gone Ivwopds Pateipara in the night, however, when he did not retum in •the night she went in search of him in the momin9 towards Patelparo and on •the way she found her husband in unconscious condition with arrow njury, therefore, the alleged oral dying dectaration given by -the deceased cannot be believed. Leamed counsel also submitl'ed that •the oppeltant has been convteted on •the basis of extra judickil confession allegedly made by the oppellant in the ponchayat. However, from the close analysis of the statements of Madvi Koso (PW-2), Madvi Ctulgo (PW-3) ond Beko Lachhu (PW-6) it would be evident that the alleged extra judicial confession was obtouned umter duress and -rtie same was not voluntary dnd therefore, the conviction could not be based on such extru judickit confession. • ~ — y "^.fr, ^) 8. Leamed counsel for the appellant placed retiance upon the decisimi of Supreme Court rendered in the case of BALBIR SIN6H VS. STATE OF MJNJAB reporfedin. 1999 SAR-(CRIMINAL) 563 and argued Ihat wherea dying decbration is doubtful the same cannot be acted and benefit of doubt should be extended to the accused. The evidence of extra judicial confession is considered as piece of eviden<%. However, in the instant case all the witnesses of extra judicial confession have stated that the appellont wos calied in the panchaycrt- dnd there he was stapped by Kamlu, the son of the appelttmt. Relkince is further ptaced upon the decision of Maharashtra Hi9h Court rendered in the case of SHYAMRAO VITTHAL POLEMWAR VS. STATE W MAHARASHTM reported in 2002 (3) CRJ 333 andalso the decision of Supreme Court rendered in the case of KANHAI MISHRA JMNHAIYA MISAR VS. STATE OF BIHAR reported in 2001 SAR (CRIMINAL) 247. Learned counsel argued that the conviction based on circumstontial evidence which in several circumstances relied upon by -the prosecution should be independently established and on the basis of so estabiished circumstances the involvement of the accused alone in the crime in qusstion should be positively inferred excluding any hypothesis re9arding innocence of theaccused. 9. On the other hand, leariied counsel for the StKte supported the impugned judgment. 10. We hwe heard leamed counsel for the parties. We have also perused the record of the triai Court and the impugned judgment. (^ Circumstances on the basis of which the cwvict'mn is based are : (i) That immedkitely after the incident deceased ccnne in •the injured condition with an oa-row pierced in his chest and stated that -ttie nppeltant/accused assoUti- him wtth wi arrow due to kmd relflrteet dispute. This was disclosed by the appellant. After some time the deceased died while he wos being taken to the hospital for treatment. (ii) The appellant confessed his guilt in the ponchoyat before wilnesses.Madvi Koso (PW-2), Madvi bulgo (PW-3), Beko Kumme (PW-5)and Beko Lachhu (PW-6). 12. So far as oral dying declaration of the deceased Beko Chaiki is concerr«d,his wife Beko Kumme (PW-5), who loc^ed the First Information Keporf' on the followin9 ddy, admit'-rtiis fact in the First Information Resport (Ex.P/5) that her husband came with on arrow pierced in his stomach and ..Stated that Payko had diot an orrow on him; though this witness in the cross- examination has not started the incident in the simitor mcBiner oa in the First Information Report-. Neverlheless the other witnesses namely Madvi Koso (PW-2) & Madvi bulgo (PW-3) stated about the mcident. They further stnted in their depositions that after hearing about the incident they reached the house of the deceased, where they found Chdlki in injured condition with an orrow pierced in his Chest and he hcid informed them that the above injury was caused by the oppelkint. In the light of the deposition of ihe above witnesses, who are independent witnesses of the village, a discrepancy in -the statement of Beko Kumme (PW-5) regarding the consciousness of the ^- '\ deceased is not material and the same con be ignored. Aport from dyhig deckiration mode by the deceased before the above witnesses, there is relioble and cogent evidence regwdvng extro judicial confession as has come in the stntements of Madvi Kosa (PW-2), Madvi Dulgo (PW-3), Beko Kumine (PW-5) and Beko Lachhu (PVI/-6), all of whom have stated that the appelfant ccune in the panchoyat and vokmtarily confessed his guilt that he shot cn arrow upon the deceased. So far as ihe 'orgument of the appeitant in this s regard that in the ponchayat the son of "rtie deceosed Kamlu had slept the appeliant twice is concerned, from Ihe evidence of the above wilnesses we find that even before he was slept by Kamlu the appelkint has already confessed his guilt vohin'tarily. Therefore, the decisions cited by leamed counsel for the appellant to show that the extra Judicial confession shouy not be acted upon when it is not voiuntorily is not appticable in the present set of facts. 13. In the light of •the above discussions, we are of the considered opinion that the Courl- below has not committ-ed any ille9ality or infirmi^y in convicting the appellcmt on -the basis of extra judicial confession. The appeal being devoid of substance and the smne deserves to bedismissed. (yown 14. Accordingly, the appeal fails and is dismissed. in Sd/- Dhirendra Mishra Judge