^®^^:-' HiGH COURT OF CHHATTSSGAra^ AT BILASPUR Criminai Appeai No.477 ©f199S Divjsion Bench:- Coram: Hon'bie Mr T.P.SHARMA & Hon'bie Mr.R-N.CHANDRAKAR, JJ. APPELLANT RESPONDENT Munna aiias Ruppu Son of iate Dayaram, aged 26 ysars, Cuffivator, R/o Kasawahi, Thana Aquni, Tahsii Dhamtari, Dlstt.Raipur SVS.P. (now C.GJ Versus StateofM.P.(NowC.G.) (Criminal Appeai under Section 374 (2) ofthe Cr.P.C.) Mr.Abhay Tiwari, counset for the appeiiant. Mr.J.A.Lohani, Pane! Lavvyer for the SSate/respondent. »|UDGMIMT (Passed on 25th Ai^ust, 201 1) Per T.P.Shamna, J.:- Challenge In this ©ppealis to the judgment of conviction & order of sentence dated 6.2.1995 passed by the Additionai Sesstons Judge, Dhamtari, in Sessions Trial No.21/93, whereby & whereunder iearned Additionai Sessions Judge after hoiding the appeiiant guiity for cuipable homicide amounting to murder of his father Dayaram convicted him under Section 302 of the I.P.C. and sentenced to undergo imprisonment for iife. Conviction is impugned on the ground that without there being any iota of evidence, the triai Court has convteted and sentenced the app^iant as aforementioned and thereby committed iliegaiity. As per case of the prosecution, on the fatsfui day of 15.7.92 at about 10.40 p.m. the appeSSant assautted his father Dayaram by axe and caused hls instantaneous death. Kotwar Rewaram (PW-1) went to PoSsce Station and Sodged merg vlde Ex.P/1 and F.S.R. vide Ex.P/2. y/"^ ^ f 1 •..;./y ^•^^.^y" -^ 4. Investigating officer teft for scene of occurrence and after summonlng the wltnesses vide Ex.P/3 prepared inquest over dead body of deceased Dayaram vlde Ex.P/4. Biooetetained and plain soll were recovered from the spot vide Ex.P/5. Dead body of the deceased was sent to Government Hospitai, Dhamtari vide EX.P/8A, where Dr.S.P.Mishra (PW-3) conducted autopsy vide Ex.P/8 and found foiiowing injuries:- (i) incised v/ound of 3" x 1" x organ deep ©verleft skie of the abdomen. jntestines were eoming out from the injury. (si) indsed wound of 3" x 1" x musde deep over left axli8. (iii) Lacerated wound of 3" x 4" x 3" over bacR of the neck. (iv) Lacerated Vi/ound of 4" x 1" x muscie deep over right knee. (v) Fracture of 4th and 5th ribs. Cause of death was shock and death was homteJctaS In nature. Patwari prepared spot map vide Ex.P/6. Bloodstained cioth ofthe appeilant and cycSe wsre seized vide Ex.P/13. One axe wss seized from the appeilant vide Ex.P/14. Seaied cioth ofthe deceased was selz@d vide Ex.P/15. Seized articies were sent for chemicai examinstion vsde Ex.P/16 and presence of biood was confirmed over axe seized from the appeliant videEx.P/17. Statements of the witnesses were recorded uraJer Section 161 of the Code of Criminai Procedure, 1973 (hereinafter referred to as the Code') and after compietion of investigation, charge sheet Vv'as fiied in the Court of Judiciai Magistrate First Ciass, Dhamtarj, who sn turn, committed the case to the Court of Sessions, Raipur, from v^iere iearned Additionai Sessions Judge received the case on transfer for triai. in order to prove the guiit of the accused/appeiiant, the prosecution has examined as many as eieven witnesses. Statement of the accused/appeiiant was recorded under Section 313 of the Code, In which he denied the circumstances appearing against him and ciahned innocence and faise impSication in the crime in question. s 6. After providing an opportunity of hearing to the partles, Eearned Additiona! Sessions Judge has convicted and sentenc@d the appetiant as aforementioned. 7. We have heard learned counsei for the parties, perused the judgment impugned and record of the trial Court. 8. Learned counseS for the appeilant vehementiy argued that conviction ss based on solitary evidence of Jhaduram (PW-11) reiatsng to extra judiciai confession made by the appeiiant to him which does not Inspire confidence and trustworthy, even there is no occasion for making suoh extra judiciai confession. Factum of extra judiciaS confe^ion has not been supported by his previous statement recorded under S^tion 161 of the Code, therefore, same is not sufflcient for conviction of tlw appeiSant. 9. On the other hand, iearned Panei Lawyer for the State supported the judgment impugned and argued that evldence of Jhaduram (PW-11) Ss sufficjent for conviction of the appeltant and the triai Court has rightiy convicted and sentenced the appeliant as aforementloned. 10. Jn order to appreciate the arguments advanced on behaif of the parties, we have examined the evidence adduced on behaif of the prosecution. 11. in the present case, homteidai death as a resuit of ante-mortem fatal injuries found over the body of deceased Dayararr. has not been substantialiy disputed by the appellant, even otherwise, it is estabiished by the evidence of Dr.S.P.Mishra (R/V-3) andautopsy report Ex.P/8. Death of Dayaram was homicidai in nature. 12. As regards the compJicity of the appeltant in crime in question, conviction is substantiaiiy based on the evidsnce of Jhaduram (PW-11). As per case of the prosecution. the present appetlant has made extra judiciai confession to Jhaduram (PW-11). As per evldence of Jhaduram (PW--S1), after commission of murder of Dayaram, the appeliant made extra judicial confesslon before him whiie he was going by bioycie keeping axe in his bicycle that he has kiSled his father Dayaram. Defence has cross-examined this wltness at Sength. He has specificaliy admitted that he has stated She factum of extra judscial confession to ^) B/- 4- Poiice at the tlme of regarding his statement, but such statement does not find piace in the statement recorded under Section 161 of ie Code. As per para 2 of his cross-examination, he was not Sn a position to expiain that why the Poiice has not recorded such statement. Exoept this witness the prosecution has not coiiected any evidence against the present appeiiant. 13. jncident took place on 15.7.92 and evidence of Jhaduram (PVV-11) has beenrecorded on 24.1.95 after more than 2 % years. Evidence ofthis witness reveais that he has deposed the factum of extra judteiai confession first time in the Court after Sapse of 2 34 years. His evidence has not been supported/corroborated by any other documents. 14. !n these circumstances, v/e are unabie to place the reiiance on casuai evidence of Jhaduram (PW-11), that too after iapse of 2 V& years of the incident firsttime in the Court. Except this witness, the proseeution tias not adduced any evidence. in the absence of any reiiance upon the svidence of Jhaduram (PVV-11), conviction of the appeitant under Section 302 ofthe I.P.C. is not susteinabie. 15. For the foregoing reasons, the appeal is silowed. Convtetion and sentence of the appeiiant under Section 302 of the I.P.C. are hereby set aside. The appeiiant is on bail, he need not surrender before the triai Court. -"-' —— Sd/- Sd/- R.N. Chandrakar ^P-Sharma Judge Judge