^•sasssa,^ ii &».,"S& ii 'sysi!*"1® > % ^"" s s \.^^ '^aa HiGH COURT OF CHHATTSSGARH AT BiLASPUR Division Bench:- (^ Coram: HQN'BLE MR.T.P.SHARMA HON'BLE MR.R.L.JKAMWAI ,JJ. APPELLANT (!n Jast) Criminai Appeal No.684 of 2006 Khristus Tirkl S/o Blasiyus Tirki, aged about 21 years, Occupation- Agricuiturist, R/o Vniage Mad'nwa (Kuihu), P.S. - Jashpumagar, District Jashpur (C.G.) Versus State of Chhattisgarh, through P.S.Jashpurnagar, District Jsshpur (C.G.) RESPQNDEN' (CRMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRfMiNAL PROCEDURE, 1973) And APPLICANT Non-apDlicants Criminai Revision No.S89 of 2005 Philomena W/o Tarsious, aged about 40 years OccupaUon-agriculture, R/o- Viiiage-Kuihudepa (hftedhwa), Thana - Jashpur, Distt.-Jashpur (C.G.) Versus 1. Blasius Tirki S/b Jhohan Tirt<i, Age 50 Years, Occupation-Agriculfajre, Wo- Vitlage-Kulhudepa (Madhwa), Thana- Jashpur, Distt.-Jashpur (C.G.) 2. State of Chhattisgarh, though Station House Officer, P.S. Jashpur, Dsstt- Jashpur (C.G.) (CRMiNAL REVISION UNDER SECTiON 397 READVVITH SECTiON 401 OF THE CODE OF CRiMSNAL PROCEDURE Mr.A.N.Bhatea, counset for the appeliant in Criminal Appeal No.684/2006. Mr.Sanjay Agrawal, counse! for the applicant in Criminai Revision No.569/2005. Mr.Sanjeev Kumar Agrawat, Panel Lawyer for the respondent/State in Criminai Appea! No.684/2006 and Pane! Lawyer for non-appifcant No.2/State. y JUDGMENT (Passed on 5m March, 2011) T.P-Sharma, J.:- 1. Criminal Appeai No.684/2006 fiied against convictlon by appeliant Khristus Tirkl passed in Sessions Triat No.60/2005 by the Sessions Judge, Jashpur dated 19.9.2005 and Criminal Reviston No.569/2005 fited by wife of the deceased against the same judgment against BSasius Tirki who has been acquitted, are being disposed of by thls common judgment. 2. Vide judgment dated 19.9.2005 passed by ihe Sessions Judge, Jashpur, leamed Sessions Judge whiie acquitting non-applicant No.2 Biasius Tirki in Criminai Revision No.569/2005 under Section 302 of the i.P.C. has convlcted and sentenced present appellant Khristus Tirkl under Sectton 302 of the i.P.C. and senteneed to undergo imprisonment for life and flne of Rs.500/-, in defauit of payment of flne to further undergo R.i. for one month. . As per case of prosecution, on 24.3.2005 between 7 to 7.W a.m. at morning appeiiant Khristus Tirki and acquitted co-accused Blasius Tfrki caused fatal injuries to Tarsiyus and caused his instantaneousiy death. Wife of tieceased Tarsiyus and present applicant in Criminal Revision No.569/2005 Phiiomena recorded dehati merg intimation vide Ex.P/1 and dehati nalsihi vide Ex.P/2. After summoning the witnesses investlgating officer prepared inquest of the deceased vide Ex.PG. Btoodstained soil and piain soil were recovered from the spot vide Ex.P/4. Dead body was sent for autopsy to Primary Health Centre, Manora where Dr.Rajnandan Prasad (PW-5) conducted autopsy vlde Ex.P/7 and found foliowing injuries:- (i) Lacerated wound on left side of nasai bridge of 4 cm. x 2 cm. x 3 cm. (ii) Lacerated wound on left eyebrow of 5 cm. x 2 cm. x 3 cm. (iii) Lacerated wound on n'ght side of right eye of 3 cm. x 3 cm. x 2cm. (iv) Abrasions over left shouider of 3 cm. x 2 cm. x 2 cm. (v) Both frontai bone and nasai bone were found fractured. Cause of death was shock and deaih was homicidal in naturs. Bioodstained cloth was seized from the appeilant vjde Ex.P/5. Axe was aiso ssized from the appeiiant vide Ex.P/6. Spot map was preparsd by investigating officer vide Ex.P/9. Final msrg intimation was recorded vide Ex.P/10. F.I.R. was also recorded vide Ex.P/11. Seized articles were sent for chemicat examinatlon to Forensic Science Laborstory vide Ex.P/12. 4. Statements of the witnesses were recorded under Section 161 of the Code of Criminai Procedure, 1973 (hersinafter referred to as 'the Code') and after compietion of investigation, charge sheet was tiled in the Court of Chief Judiciai Magistrate, Jashpur, who in tum commtSed the case to the Court of the Sessions, Jashpur. 5. In order to prove the guitt of the accused/appeliants, prosecution has examined as many as six witnesses. Stafements of the accu^d were recorded under Section 313 of the Code, in which they denied the circumstances appearing against them and pleaded innocence and fatse impiication in the crime an question. 6. After affording opportunity of hearing to the parties, the Sessions Juctge, Jashpur whiie aoqultting non-applicant No.1 in Criminal Revision No.569/2005 has aforementioned. convteted and sentenced the /7. We have heard Mr.A.N.Bhakta, counsel for the appeiiant in Criminai Appeal No.684/2006, Mr.Sanjay Agrawai, counsei for the appiicant in Crimina! Revision No.569/2005, Mr.Sanjeev Kumar Agrawai, Panei Lawyer for the respondenVState in Criminal Appeai No.684/Z3W and Panei Lawyer for non-appiicant No.2/State, perused the Judgment impugned and record of the trial Court. 8. Mr.Sanjay Agrawal, iearned counsel for the appiicant in Criminal Rsvision No.569/20(K submits that prosecution has adduced sufficient evidenoe against non-applteant No.1 Btasius Tirki but the trial Court has acquitted him and thereby committsd iliegallty. 9. Mr.A.N.Bhakta, ieamed counsel for the applteant in Crtminal Appeal No.684/2006 submits that in the present case conviction Is based on ths atieged extra judicial confession made by the appeliant before Vtrendra, Vinay Kumar (FW-4) and Subhash Tirki (PW-3), son ofthe deceased, but prosecution has not examined witness Virendra. Vinay Kumar (RA?"-4) has not deposed reiating to extra judicial confession made before him and ^ /. evidence of Subhash Tiri<i (FW-3) relating to extra judicsai confession does not inspire confidence and trustworthy. Virtualiy prosecution has ns^ adduceci any evldence to connect the appeiiant in crime in questton, therefore, conviction and sentence of appellant Khristus Tirki is not sustainabie under the iaw. 10.0n the other hand, learned State counsel opposes the appeal and submits that the trial Court has rightiy convteted and sentencsd the appetlant on the basis of evidence adduced on behalf of pro^cution. 11.in order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of prosecution. 12.in the present case, homickial death as a resuit of fatai injuries found the body of deceased Tarsiyus has not been sutaBtantiaIly behaif of any of the parties, on the other hand, also established evidence of Dr.Rajnandan Prasad (PVtf-5) and autopsy report Death of Tarsiyus was homicidal in nature. on by the Ex.P/7. 13.As regards the complicity of the accused/appellant in crime in question and evidence sufficient for convictton of non-applicant No.1, convietion is substantialiy based on factum of extra judicial confession made by appeiiant Khristus Tirki. As per evidence of Sarpanch Lai Sai (PW-2), witnesses Virendra and Vinay Informed him that appetiant Niristus Tirki has made exSra judiciai confession before them that he has kiiied deceased Tarsiyus, then he sent appellant iristus to Police Station along with witness Vinay. Prosecution has not examined witness Virendra but prosecution has examined witness Vinay Kumar (PW-4) who has deposed that appeilant Khristus made extra judicia! confession before his brother Virendra who informed him. It shows that the appeilant has not made any extra judiciai confession before Vinay Kumar (PW-4) and other witness. Subhash Tirki (FW-3), son of deceased Tarsiyus, has deposed in hts svidence that he is next door neighbour of the appeliant and the appeiiant and co-accused were discussing that they have killed Tarsiyus i.e., his father. In para 9 of his evidence he has further deposed that appeiiant Khristus has also made e)dra judiciai confession before Sarpanch. in para 12 of his crc^s-examinatlon, he has admitted that he has not stated the factum of extra judicial confession heard by him to police. As per para 14 of his evidence, factum relating to extra judicial confession tf/ appeilant ^'^ Khristus before Sarpanch and the fact that he has seen the appeilant with bloodstained axe do not find piace in his statement recortisd under Section 161 of the Code. Sarpanch Lai Sai (PW-2) or Vinay Kumar (Pi'V-4) have not corroborated the evidence of Subhash Tirtd (PW-3) relating to extra judicial confession made by the appeliant before Sarpanch i.e. Lal Sai (PW-2). 14.Evidence of Subhash Tiria (R/V-3) is self-contradictory and does not find support from his previous statement. As per his evldence he was substantive witness of extra judiciai confession and he was ^>n of the deceased but reason best known to him he has not infomied the factum of extra judicial confession to the Police. This makes his evidence unreiiable. The tria! Court has also disbelieved statement of Subhash Tirki (RA/-3). iS.Virtuaily, prosecution has not adducKl any evidence relating to extra judiciai confession. Prosecution has not examined Virendra i.e. brother of appeliant Khristus Tirki. It can be safely infsrred that if he was examined on behatf of prosecution then on the ground of relation he would not have been supported the case of prosecution. Prosecution has not adduced any evidence against the present appeilant and co-accused Btesius Tirki. !n these circumstances, conviction and sentence of the appeilant are not sustainabie under the law. 16.We do not find any ground for taking different view relating to accused BiasiusTikri. Consequently, Criminal Revision No.569/2005 filedon behaif of applicant Phiiomena is liabie to be dismissed and it is hereby dismissed. h4owever, Criminal Appeai No.684/2006 fited on behatf of appsliant Khristus Tirki deserves to be allowed and it ts hereby allowed and his Convlction and sentence are hereby set aside. He is acquitted of thecharge. He be set at iiberty at once and be releaseti if not required in any other case. —------ Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge