HIGH COURT OF CHHATTISGARH. BILASPUR Cyimiaal Appeal No. 1126 of 2001 APPBLLANT ^. RESPONDENT Naiidlal Jaiswal, s/o Gokul Prasad Jaiswal, aged 25 yeai's, r/o village ShaiTaa, P.S. Surajpur, Distt Surguja(C.G) Versus State of Chhattisgarh, through P.S. Surajpur, Distt Surajpur DB; HON'BLE SHRI JUSTICE L.C. BHADOO & HQN^BLE SHRI JUSTICE SUNIL KUMAR SINHA^ JJ. Appearassce: Shri N.K. Mehta, counsel for the appellaiit. Shri U.K.S. Chaadel, Panel Lawyer, for the State. ORALJUDGMEHT (07.01.2008) The followitigjudgnient ofthe Cozirtwas passed by L.C, Bhadoo, J, IT^ •€• (1) This appeal is directed against tlie jiidgBie.nt of conviction aad order of sentence dated 08,11.2001 passed by 5th Additional Sessions Judge, Surajpur iii Sessious Trial No.355/1995 vvhereby tlie leanied Addl. Sessions Judge, after holdiag the accused appellaiit guilty for conimission of tlie offeiice ii/s 302 I.P.C., for cosiiiaittnig inurder of Phooliaati, sentenced him to ziiidergo imprisoniaent for Ufe. (2| The case oftlie prosecution ia briefis fliat accused appellant Naiidlal was haviag illicit relatioiiship wltli Phoohiiati (siiice deceased). On 01.6.1995 tlie accused appeUant aiid Phoolmati were spreaduig r&aaure 111 tiieir field. DuiTtig that tiBie the accused asked his sister-iiii-law [Bhabhi] Phoolmati to elope vritli hinx^which was refused by Phoolmati, on which accused attacked her witli a knife on her neck aiid committed her murder. Thereafter in order to commit siiicicle he jumped iii front of the c '\ c 0) traio./ as a result of which his right leg aiid his left haad were axnputated. On tliat day, Charidraball (P.W.15) husbaad of tlie deceased beiag sick, was at his resideuce. However^ P.W. 14 Ashok Kumai' accompanied Phoolmati to tlie agriciiltural fielcl. After sorae time he becajae hungiy, fherefore, he returaed to his hoiise. Thereaffer when he reached to flie field to caU his motlier, he saw tliat in tlie bushes ofthe bullock cart patli, Phoolinati his inotlier was lyiag dead. There was injuiy on her neck. One wicker work basket and one kntfe were lying near tlie body of Phoolmati. Ashok, seeiiig tliis, returaed to his house aiid iofoiTDied his fafher Chandrabali (P.W.15) who went to Paiich Churaii Prasad (P.W.2). At that time, P.W.3 Bhuval Smgh, P.W.4 Narayaa Prasad Gupta were also tliere. On askiag by ttiese persous, Chaiidrabali infoiTaed tlie village Kotayai', all fliose persons went to tlie place of occurrence aiid saw the body of Phooloiati and otiiers. At tliat time, P.W.8 Raghunatli Gupta came aad nifoi'med that accused Naiidlal is lying neai' the railway track aiid his right leg aiid one faaiid have been ainputated, tlierefore, all the persons went to that place. On enquiiy by P.W,2 Chiiraii Prasad, accused Naiidlal mformed fhat he has committed miirder of Phoolmati. He fmtlier said that ou account of fall from tlie ti'ani he has sustaiaed iiijiiries. P.W.8 Raghunatli Gupta went to police station Surajpur aad lodged tlie report Ex.P.6. He gave merg intiination Ex, P.7. The iavestigatiug officer left for scene of occuiTence aiid alt.er giving notice Ex. P.2, he prepared tlie iiiquest Ex. P.3 on tiie body of Phoolmati. He wrote a letter Ex. P.13 to tlie Assistaiit Siirgeon, Govt. Hospital, Surajpur for inedical exaaiiaation of accused Naadlal. Based on that, Dr. I.D. Gupta (P.W.l) exammed Nandlal aiid prepared flie report Ex.P. 1. The 1.0., took iato possession one ba33iboo basket, one knife aad wicker work basket, plaiii soil & blood staiaed soil from tlie place ofoccuiTence under Ex. P.4, The weapon of offence i.e., knife was also sent to the Assistaut Surgeon, C.H.C., Surajpur zmder Ex.P.S-A. After exammation, tlie Doctor gave opiaion Ex. P.8. The body of Phooloiati was sent for exaaiiriation iinder Ex.P. 12 to flie Primory Healtli Center, Surajpur, where Dr.D.K.Shai-ma (P,W.10) conducted tlie postraortexa aiid opiaed tliat flie deatli was due to shock and c .X- hemorrhage, as a result of iiijuiy to fhe body. He prepared the postmortein report vide Ex. P.9. (3) After coinpletion of tlie iavestigation, charge-sheet was filed ia the Court ofJ.M.F.C. Surajpiir, who in tuni committed the case to tlie Sessions Judge, Sarguja, from where fhe leanied Vth Addl. Sessions Judge received the case on transfer for trial. (4) The prosecution iii order to estabUsh fhe charge against fhe accused exainraed 18 witaesses. The statenient of tlie accused was recorded u/s 313 Cr.P.C., m which, he denied fhe material agahist hi3n ia the prosecution evidence, pleaded iiiuocence aad stated tliat he has been falsely impUcated ia flie criine in question. (5) The learaed Addl. Sessions Judge, after hearmg counsel for tlie pai'ties mid considenng tlie inaterial on record, convicted aiid sentenced tlie acciised as aforementioned. (6) We liave heard Mr.N.K, Mehta, cozuisel for tiie appellaat aad Mr.UJ<.S.Chaadel Panel Lawyer for the State. (7) At fhe outset, Mr. Mehta has not disputed the homicidal deatli ofPhoolaiati. Moreover, P.W.10 Dr.D.K. Shai-ma has stated tliat on 02.6.1995 at about 11.30 a.m., he conducted the postmortem on fhe body of Phoolmati Bai aiid noticed the mjuiy i.e. aii mcised wound around the neck ixi size of 14" x 3" x 2X/2W . The iiijuiy was aiiteniortein ia nature. On dissection of the neck, he found tliat 2 & 3rd cartilages, oesophagus aacl tracheawere cut His report is Ex. P.9. Accoiilitig to hmi, tlie cause of death was shock as a result of heniorrhage. The injuries were sufficient ia tlie ordinaiy course ofnature to cause death ofdeceased. In view of tlie above, it is hereby estabUshed tliat tlie death of Phoolmati was hoiniciclal iii liature. (8) As far as the coiapUcity of tlie accused iii cilme ui question is concerned, iii tliis case tliere is no oculai' or direct evidence. The conviction of tlie accused rests on fhe followiiig circunistaatial evidence. (i) That tiie acciised niade extt'a jzidicial confession before P.W.2 Churaa Prasad, P.W.8 Raghmiath Prasad as also before P.W. 18 Gyan Smgh, Naib Talisildar. c .)-. (ii) th.at wicker work basket of fhe accused aiid fhe weapon of offence i.e., knife alleged to have been belongiag to fhe accused were found at the place of occurrence. (iii) That after coBiniittin.g Biiirder of Phoolinati, the accused attenipted to commit suicide. (9| First Circumstaaace: As far as the fii'st circumstance is concenied, P.W.8 Raghunatls. Gupta before whora, tlie accused aUeged to have inade extra judicial coiifession, has stated ia para 2 ofhis evidence fhatwhen tlie Sarpaiich Churaii asked the accused as to why he has murdered Phoolmati because tlie. wicker work basket of fhe accused was lyiag at tilie place of occurrence, tlie accused replied that as the deceased Plioolmati asked him to stab her fliat is why he stabbed her. P.W.2 Churan Prasad, on whose question tlie accused is said to have made exti'a judicial confession, has stated ia pai'a 5 of his evidence tliat as the accused was unconscious, he was not able to speak. Therefore, tlie evidence of P.W.8 Raghunatli Gupta (P.W.8) does not mspire confidence becaiise contraiy to tiie evideuce of Raghunatli, P.W.2 Chiiraii Prasad has stated tliat flie accused Naadlal was unconscious, hence the evidence of P,W.8 Raghunath caanot be beHeved tiiat on askiag by Churaa Prasad, tlie acczised niade extra judicial coufession. More over, ni order to convict tlie accused based on tlie extra judicial confession, tiie maiidator^r requirement is fhat tlie extra judicial confession inust be voluntaiy aiid tiiie. (10| As fai' as ttie evidence of Raghunatli is coucemed, the Sai-paiich Churan Prasad asked tlie accused as to why he has corainitted murcler of Phoolaiati, on which, tlie accused said tliat Phoolm.ati asked hiiii tliat he should stab her, that is why he stabbed. Therefore, io. ttie first uistaiice it caanot be said that tlie confession was voluntary, but the same was repUed as tlie Sarpanch asked tliis accused as to why he comraitted tlie niurder. His ti'uthfuhiess is also doubtful because as per tlie evidence of Raghunath, tlie accused said tiiat Phooloiati asked him to stab hiin tliat is why he stabbed whereas tlie prosecution case is that tiie accused asked Phoolmiati to elope witli hioi, when she refused tlie accused stabbed her. Therefore, from flie above evidence of 2^ ^J c. P.W.8 Raghunafh Gupta, the prosecution has not been able to estabUsh tliat tlie accused has made extra judicial confession regardiag commission of inurder of Phoolmati Bai by hiai. In view of fhe above, tlie prosecution has beeii faUed to estabUsh tihis circumstaiice agaiiist fhe accused. (11) As fai' as tlie exti-a judicial confession raacle by tlie accused before P.W.18 Gyaa Siiigh Kofhi is conceraed, he has stated tliat on 02.6.1995 under tlie iastructions ofS/D.O, Siirajpur, he went to record the dyiag declaration of Naadlal. The accused was in. aii unconscious stage, biit he was ia a position to give tlie stateinent. He put questions to tiie accused aad ttie accused gave tlie stateiaent Ex. P.14, This witness has simply stafed that the statement was given by tlie accused, but he has not stated what words of coiifession were uttered by Naiidlal. Merely sliowmg that tlie dyiag declaration Ex.P.14 was given by flie accused is not siifficient to prove the contents ofttie document ex. P.14, flierefore, flie prosecution has failed to estabUsh tliis circuinstaace also, (12) Secoad circumstasice: As far as fhe presence of the knife aad wicker work basket of ftie accused at the place of occurrence which were said to be found there is concenied, no body has stated fhat knife which was foiind on tlie place of occurrence belongs to tlie accused, no identi&cation pai'ade has been conducted ia order to estabMsh that fhe kntfe was oftlie accused, Similarly, as fai' as tlie basket is conceraed even tliough tlie husbaad of fhe deceased namely Chaiidra Bali (P.W.15) has stated tliat tlie wicker work basket was of tlie accused but no speci&c ideiiti&cation raark has been disclosed by hiiii aiid even if it is taken to be true tliat tlie said basket belongs to the accused itself does not connect flie accused witli tlie crime iii. c^uestion unless soaie other cii'cumstantial evideiice estabUshes tlie presence oftiie accused at tlie place of occurrence at tlie time of coinniission of tlie ciime or iiivolving tlie accusecl ui crime iii question. Merely on tilie basis of fhe presence of tiie basket which was found at tlie place of occurrence itsetf is not sufiicient to connect fhe accused in crirae iii question. As has been meiitioned earUer, flie basket has not been put to identi&cation parade establishio.g fliat flie basket belongs to tlie acczised. ' ^^, (13) Third Circumstaaee: As far as tlie accused attenipted to^ coinmit suicide after inurdermg Phoolinati is conceraed, tlie prosecution has tiied to establish under Ex. P.14 io. which tlie accused alleged to have stated to Executive Magistrate fliat he went to commit suicide aiid jumped from the tram to coTnmit suicide, as a result ofwhich, he sustahied iiijuiy on tlie leg aiid haiid but as has been mentioned eai'lier^ 'Uic^fe contents have not been proved by tlie Executive Magisti'ate P.W. 18 Gyan Siagh aad tliere is no otlier evidence to estabUsh tliat the acciised attenipted to commit suicide, On tlie contrary, P,W.8 Raghunatii Gupta has stated tliat fhe acciised disclosed tiiat when h^was gettmg up fhe train. a»M his haad was slipped ia catchuig flie tii^^^& feU down and siistaiiied iiijuries. In view of the above, there is no legal aiid cUiichiag evidence on record ia order to estabUsh that fhe accused siistained injuries because he. jumped ui frout of tlie ti'aiii to commit suicide. There is no otlier circuBistaiitial evideiice to connect tlie accused witli tiie crime iii question. (14) For tlie foregoing reasons tlie prosecution has iitterly falled to establish tlie ciioie agaiast flie accused based on tlie cn'cumstatitial evidence, tlierefore, his conviction TI/ s 302 IPC aiid tlie fiiidiiig oftlie trial court caiinot be sustamed. (1S) The appeal succeeds. The conviction aiid sentence imposecl iipon flie accused appeUant ii/s 302 IPC are set aside. He is acquitted of tlie said charge, It is stated tiiat fhe acciised is in. detention since 08.11.2001. He be set at libei-ty foilliwiUi if not required in. aiiy other case, | g^ I SunUKumarSmha L.C.Bhadoo ! Judge Judge /Raq/