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Wm<w> ~ \r XJ—HC—78 3am, mm, Cm <zwx COL m mm 0..WA gmabf m 200 anhwrm WWW wwwm 32 K Par L,C, Bhadoo, Ag.C.J.: - The accused/appellanfs have ‘374 (2) of The Cr'.P.C. quesfioning le of com/icfion and order of Senfenc Addifional Sessions Judge, Jagdalpx learned Addi‘rional Sessions Judge guih-y for commission of offence Ln sen‘renced each of fhe accused f0 L fine of Rs.500/’, in defaul’r of poym fhr‘ee monfhs and fo undergo RI. fo in defauh of paymcn‘r of fine fo f respec‘i‘ively‘ The case of fhe prosecu‘rion, 2004 on The occasion of concluding c funcfion was arranged by villager: deceased Kawasi Bo‘i'i along wiTh fhe i was a dispul‘e befween deceased Bof on accounf of Thaf dispu‘re The accus wHh hands, fisfs & foof, fhereaf‘l'er commiTfed his murder and fhrew his Blfam, wife of Bofi, lodged merg intir fa The effecf fha‘l’ on 5afurday a‘l' al husband from Their residence saying ThaT They are going for waTching The WW§WW' %em%w31TE¥r WW(W) \j (» preferred these appeals under Sec‘rion galify and correc‘l‘ness of fhe Judgmenf e daTed 29—10-2005 passed by fhe 2'“ r in Sessions Trial No.1/2005, whereby affer holding The accused/appellanfs ider Secfions 302 & 201 of The I‘P,C.4 ndergo lmprisonmenT for life and pay a enT of fine To furTher undergo RI. for r Two years and pay a fine of Rs.500/—, JrTher undergo RI vfor Three monThs, l n brief, is ThaT in The evening of 30—10— leremony of Jagar, a local fesTlval, some ; near drain of The village in which iccused persons also parTicipaTed, There and accused Kawasi Hadmo, Therefore/ ed persons firsT aTTacked The deceased / Tied a Towel around The neck of BoTl, body in The waTer of The drain. SmT‘ naTion EXP-12 in Police STaTion: Darbha )ouf 5.30 p.m. accused Hadmo Took her XI—HC-78 (VA 957M. EAWZ MA Wm W200 WWW WWW {wwwwéw w$» WW§NW %;a¢%m3w%w concluding ceremony of Jagar. When her husband did n'oT reTurn whole nighT, in The morning she wenT To Tl' e house of Hadmo To enquire abouT The he did nof disciose anything +0 her, whereaboufs of her‘ husband, buf ThereafTer, her neighbour Somdi cz me and informed ThaT The body of her husband is lying in The waTer of M‘unga river drain. On hearing This, she along wifh Village Kofwar and ofher The body of her husband 'was lying injury on fhe head. On receiving fhis report 1'he Invesfigafing Officer ief‘r for i'he scene of occurrence AfTer giving noTice To The Panchas, inquesT EXP-7 on The body of Kawasi BoTi was prepared. He also prepared The siTe plan (Ex,P-5) of The place of occurrence. The waTer of The drain where The body was lying was seized in a boTTle under EXP—4, The Towel which was Tied around The neck of deceased Boti was seized under Ex.P-2 a1- ‘rhe insfance of c memorandum EXP-1. The body of k Communify Healfh Cenfre, Darbha ur conducted posT-mor‘fem, prepdred opined -1'haf fhe death was due fo ‘ shock‘ DehaTi Nalishi EXP-13 was Baghel and based on fhaf, firs? inf for commission of offence under Si I.P.C. persons wen‘i’ To the drain and saw fhaf n The wafer of fhe drain, fher'e was an under EXP-3 and fhe Torch was seized caused Kawasi Hadmo in pursuance of awasi BoTi was senT for posT-morTem To Ider EXP-16 where Dr. AK Jena (PW«5) The posT—morTem reporT Ex.P-11 and njury To viTai organs, haemorrhage and given by AssisTanT Police Inspeci'or 6R. ormaTion reporT EXP-14 was regisTered :cTion 302 read wiTh SecTion 34 of The P.T.O. mammea‘iwam i XJ-HC-78 myéf Wm ..... Q".""o".‘r‘v 111 200 CW2: ayw wL. wvw\ mmwiaww mmwm WWW§WW é;3T%rr3TI%¥T _L)__ Affer' complefion of inves?igc accused persons in fhe Cour? of Jut [Tion, charge sheaf was filed againsf ihe liciul Magistrate, Firs? Ciass, Jagda$pur, who in furn commH-fed fhe case fa; 1'he Sessions Judge, Jagdalpur, from where learned 2“ Addifional Sessio for i-rial. The prosecufion in order fq persons examined six wifnesses. 5‘ recorded under Secfion 313 of fhe maferial appearing againsf fhem and have been falsely implica‘red in 1'he crime. Learned Addifional Sessiong Judge offer hearing counsel for respecfive parfies, aforemenfioned. ns Judge received fhe case on fransfer establish charge agains‘r fhe accused fatements of The accused persons were Cr.P.C. in which +hey simply denied fhe sfafed fha‘r They are innocent and fhey sentenced fhe convicfed and appellanfs as We have heard Mr. Abhay Tmari, learned counsel for The appellani's and Mr. MRS. Bha‘ria, learned Pt respondent Mr. Abhay 'l‘iwari has not disputed the homicidal death of Kawasi Boti. Moreover, Dr. AK Jena (PW-5) who conducted past-mortem on the body of Kawasi Boti has stated in hi9 evidence that on 1-11-2004 at about 10 am. he conducted post-mortem on the body of Kawasi Boti and found _.>f\ollowin9 injuries: - \ mel Lawyer on behalf of the State/ P.T.O. F > XI-HC-78 CVVA mam—cw mm W ‘7%...%%":%.... WW); 0 3O? trrmaJr WWWW) WWW mam mmmm ‘ g” WW§WW 3€WW§¥T 1) Crushed injury between The 4’" & 5'" foe of righT foo? in fhe size of 2.5 cms. x 2 ems. x 1 cm. 2) Abrasion on fhe forehead above fhe righf eye in *he size of 5 cms. x 1.5 cms. x 0.5 cm. 3) Abrasion on fhe skull in fhe size of 0.5 cm. x 0.2 cm. 4) Abrasion on fhe scrofum in 1+e size of 4.5 cms. x 0.5 cm. 5) Abrasion on 1'he knee of leff leg in fhe size of 2.5 cms. x l cm. 6) Abrasion on fhe neck below The lefi’ Jaw in fhe size of 6 cms. >< 1.5 cms. x 0.5 cm. 7) The brain was congesfed or? The piace where there was injury. Scrofum was congesfed. 10'“ & 11'” ribs were found fracfured. 8) There was a cuf infhe midd e of Iiver in fhe size of 5 cms. x 1 cm. lengfh and was ruptured, The *up‘rured porfion was congesfed. 9) There was blood in large and small infesfine. Injuries were anfe-morfem in na‘rure. There was a fowel around fhe neck of The deceased. In The doc‘ior’s opinion, fhe cause of deafh was on accounf of haemorrhage, shock and injury fo liver. Therefore, in view of The above, if is es‘i’ablished Thar The deaih of BoTi was homicidal in nature. As far as involvemenT of The accused persons in The crime in quesTion is concerned, in This case There is m direcT or ocular evidence. Whole case resTs on The circumsTanTial evidence. As per The seTTIed law, in order To convicT an accused based on The circumsTanTial evidence, The Hon'ble Apex i P.T.O. D XLHC-78 Aé mam amméwm WWW‘ égwm more serious The crimel fhe greafer- should be f e care faken fo scrufinize fhe evidence lesf suspicio fakes the plo‘ce of proof." In the present case, th prosecution has tried to establish involvement of the accused/appel following circumstances: - 1. that fher‘e was dispu1'e be' Kawasi Boti regarding the Ia ' 2. that, accused Hadmo took d ceased Boti from his residence at about 5.30 p.m. on 30'" October, 3‘ that, the accused persons m de extra Judicial confession before the Panchayat in presence of Bali or Singh (PW-3) di Mithurom (PW-4). As far as the first circum tance is concerned, Smt. Kawosi Bitam (PW-1), wife of the deceased, in ara 4 of her evidence has stated that P.T.O. Cour‘r in fhe moi-fer of DhananJoy in (1994) 2 5C6 220 held fha‘r: “In a case based circumsfances from fhaf all *he circums? conclusive nature hypofhesis of The afferjec vs. Shit of W.B. reporfed circumsfmfial evidence, fhe ich fhe conclusion of guilt is 1'0 be drawn have nof onl 'l’o be fully es‘l'ablished bu? also a ces so esfablished should be of a consistenf only wi‘l‘h The gull? of fhe accused. Those circumsi'ances should a? be capable of being explained by any o‘rher hypo‘l'hes s excep‘l’ fhe guil? of 'l'he accused and The chain of the vidence must be so complete as not to leave any re onable ground for the belief consistent with the in ocence of the accused. It needs no reminder that lega ly established circumstances and not merely indignatio of the court can form the basis of conviction and fs in fhe crime in ques‘rion on The en accused Kowcsi Hadmo and deceased 1 : and EWWW CWQ Cm}, “,1 Dist/l $‘33log’ Wm t... ........... t 111.200 WW(W§“) V-é, mwn‘wm V r n n d t 2 XI-HC—78 (7 7 WW, WW, wsW" {1:I 2()0 CVQ ")V g.7L (at/NA o.oo...o.o. mam wmm maxmm WWW§MW %31$cmm%w g? _ fhere was a dispu‘re of her husband wifh The accused persons regarding land. in his evidence Thai accused Laxman disclosed before +he Panchaya+ +ha1 in fhe nighf on accounf of land dispufe, ere falking. Mifhuram (PW-4) in para 6 of his evidence has sfa‘red fhaf fhe e was a dispu‘re befween Hadmo and The deceased in conneci'ion whh land an on accounf of fhm, accused Hadmo and his associafes commi‘H-ed The mur er of Bofi. Therefore, in View of The above evidence, iT can be held'Tha There was some dispuTe regarding land beTween accused Hadmo and dece ed BoTi‘ examinaTion of SmT. Kamasi BiTa accused Hadmo is son of her maTe "nal uncle, accused Laxman is her elder broTher’s son and accused Madda is son of her grand faTher. Therefore, The accused persons are closely relaTec To The deceased and as per The above evidence, There was dispuTe wiTh Hadma regarding land. As far as The second circums Tance is concerned, Kawasi Lakhma (PW- 2) has sTaTed in his evidence ThaT iT was disclosed To him by wife of The deceased ThaT in The evening The accused persons had Taken deceased BoTi from his house along wiTh Them. Balihar Singh (PW-3) has sTaTed ThaT in The PanchayaT accused Laxman disclosed ThaT deceased BoTi was wiTh Them and There was some alTercaTion beTween accused Hadmo 6i deceased BoTi l regarding land dispuTe. Therefore, n view of The evidence of Kawasi Lakhma (PW-2) and The exTra judicial confession made by accused Laxman before Balihar Singh (PW-3) in The PanchayaT, iT is esTablished ThaT accused Hadmo Took The deceased from his house w Th him in The evening. P.T.O. Balihar Singh (PW-3) h« sfafed accused Hadmo and deceased Bofi IT has come in The cross- (PW-1), wife of The deceased,‘ ThaT WW(W) aXZE—HC—78 CVQ %?’.( %7L MA %W$(U r WW .......... . a1 200 Wm<W> HW,WE,W mam WW§WW WWW mamm é§a¢i§mm As far as fhe Third circumsfance 'exfr'a judicia! confession is concerned, in order fo place reliance on The exfr'a Judicial confession, fhe prosecufion is required To establish fhaf the exira judicial confession was volunfm'y, frue and prompt “i Mr. Abhay Tiwar‘i, learned co nsel for 1'he accused/appellanfs argued fha‘l‘ in fhe evidence of Balihar Sing (PW-3) & Mi‘rhuram (PW-4) if has come on record fha? when fhe accused p rsons made exfra Judicial confession in fhe Panchaya‘r, fhe Police‘was pre enf. He fur‘rher argued fhm had fhe accused persons made exfra judici confession in the Panchayat, then this fact ought to have been mentioned in the inquest report EXP-7 which was prepared in the evening of 31" October, 2004, but there was no mention in the said inquest report Ex.P-7 regarding the extra Judicial confession made by the accused persons in the Panchayat, as suchi the theory of extra Judicial confession made by the ac< used persons before the Panchayat has not been established beyond reasonable doubt. On the other hand, Mr. MRS. Bhatia, learned Panel Lawyer supported the Judgment of the trial Court. We have perused the evidence of Balihar Singh (PW-3). He has stated that Panchayat was convenhd, in that Panchayat, accused Laxman made extra Judicial confession that deceased Boti was with them and there was an altercation between deceased Boti dl accused Hadmo in connection with land dispute. Thereafter, they called accused persons Hadmo & Madda 7e?» i P.T.O. XI-HC-78 £ CVQ %’)‘ m WW, Wm, wa ', 9&1 u f ....‘..-o. W 200 WW(W§“) man—rm mmm WW§WW $Wm in the Panchayat and in that Pancho/at, those accused persons also made confession fhaf they have commiffed fxaminafion para 11, fhis wi‘rness has that Podyami Laxman, Kawasi Hadmc confession on accoun‘t of fem" fhaf fh +o say ‘rha‘r on second day The Police c Mifhumm (PW4) in para 4 of was convened in the village in which Gadru, Ward Panch mid the accusei Panchaya‘r, accused persons Hadrno, mmmm “(7; The murder of Kawasi Boti‘ In cross- ‘ur'rher sfafed that it is correct to say 5i Oyami Madda made extra Judicial a Police may give beating. It is correct urne in the village 1is evidence has stated that Panchayat he along with Balihar Singh, Kotwar, Before the .axman & Madda disclosed that after committing the murder of KMasi Bot , they threw him in the drain. In para 17 of his examination, he has stafec firs? insfance, fhe accused persons M but later on, on account of fear‘of Poke they disclosed everything. Therefore, from the above ev PW—4), if cannoi be said Thaf The sai presence of fhe Police. Defence has i in cross—examina‘rion of ‘ihese iwo persons made extra Judicial confession in presence of the Police. Now, the quesiion remains as 1 was volunfary. Bofh fhese wifnesses made ex‘rra Judiciai confession on Therefore, if cannof be fermed as e> i persons were present. that it is correct to say that in the ere saying, they do not know anything, dence of these two witnesses (PW-3 di i extra Judicial confession was made in iot been able to elicit any circumstance witnesses to show that the accused o whether the extra Judicial confession have stated that the accused persons account of fear of the Police and :tra Judicial confession. Merely on the P.T.O. x XIIHC—78 CVQ HW,W,W ¢p75(6;# W .oooto0ot ro¢00~ntt.GOW 200 mW<W> C'bw W2: W 10 WWW wmm #7 [Cw maw%aw%m basis of evidence of ‘rhe wi‘l'ness'es accused persons made exfra Judicial said confession was no‘r volunfar'y. always have fear- fha‘r They may be c‘ cannof be said fo be affecfing fhe'v fhe accused persons. There is nofl WW§WW %af%mm fhaf on accounf of fear of Police fhe i confession, if canno‘l' be said fha‘r ihe The persons who are involved in a crime mgh? in The crime, Therefore, such fear 'olunfariness of fhe confession made by 1ing in fhe cross-examinafion or in The evidence of these witnesses that they had threatened the accused persons that if they are not going to disclose or confess ‘how Kawosi Boti was killed', fhen ihey will be handed over fo fhe Police and The Police will give beating to them or they will be implicated in crime by the Police. Therefore, mere fact that there was fear of Police in the mind of the accused persons, the confession made by fhem cannof l>e said to be involunfary. Moreover, truthfulness of the confession is corroborated by the fact that there was a dispufe befween accused Hadmo am Aparf from ‘rhaf, The deceased was where Jagar was being celebrafed ne In +he circums‘rances, for i considered opinion fha‘r fhe exfraj persons before fhe Panchayaf in namely, Balihar Singh (PW-3) & Mi‘rhl As far as fhe argumen? c appellanfs fha+ there is no mention < accused persons in the inquest r port EXP-7 is concerned, as per the ai §€"*i;‘ X deceased Bofi in connecfion wi‘ih land. seen in company of fhe accused persons ar The place of occurrence. ’he foregoing reasons, we are of fhe udicial confession made by ‘I'he accused rhe presence of fhese fwo wifnesses :rom (PW-4), was volunfary and true. Idvanced by learned counsel for the if extra judicial confession made by the P.T.O. ’XgLHC—78 WT 11 mwmm CM cm! W2 %'>>WW 200 WW(W) WWW mmmm ’ U“ WW§WW %3Ii‘3m311%:1 fook ‘l'heir' meal near fhe place of occ deceased Bo‘ri was seen in fhe Nc persons and The deceased were Takir af Jogar in the night Nexf day rm deceased abou‘f fhe body lying in the in fhe Ponchayaf fhe accused pe regarding fhe commission of crime. 11-2004 af 12.30 p.m. Therefore, we‘are of The considered opinion ThaT The Trial CourT has :e of The prosecuTion ThaT The accused ssion regarding commission of crime L\ righ‘i‘ly placed reliance on fhe evideni persons made ex‘ir‘a Judicial confe P.T.O. record, fhe inquesf report was preaared on 31" Oci‘ober, 2004, no Time is menfioned in if and in cross-examinafion of fhese Two wifnesses (PW-3 6i PW—4) defence has no? been able to elicif any circumsiance which shows +ha+ This inques? reporf was prepare d offer fhe Panchayaf was held in which fhe accused persons made exfra jucicial confession, as such, non-menfioning of The facfum of exTra Judicial con fession made by The accused persons in Ex P 7 does noT make any differencd as There is noThing on record ThaT The exfra Judicial confession was made before EXP-7 was prepared. Perusal of DehaTi Nalishi EXP-13 shows ThaT The AssisTanT Sub InspecTor who lodged The DehaTi Nalishi has caTegorically menTioned abouT The sTory of The incidenT ThaT The deceased along wiTh The accused persons urrence, nexT day morning, The body of la near The place where The accused ig Their meals on The day of'The fesTival >rning, Somdi Bai informed wife of The drain. IT has also been menTioned ThaT ~sons made exTra Judicial confession The said DehaTi Nalishi was given on l- ‘ XJK-HC—78 EWW $72 o. “%£F§m% n W$7305 . ....... m 200 mm(m) xmam WWW mmmm *l'b WW§WW gammy before fhe Panchaya+ in presence of Balihar Singh (PW-3) & Mifhuram (PW- 4). For fhe foregoing reasons/ 1’ha prosecufion has been able f0 esfablish on The basis of The circums‘ramia circumsfances is complefe and an ir' fhe accused persons were the aufhc possibilify of coming of any ‘rhird crime in quesfion. In The resulf, fhe appeais (Cr éi 873/2005) being devoid of merit, hereby dismissed. Sd/« SLCBHADQQ udge i i \ evidence adduced fhaf the chain of resis'rible conclusion can be drawn fhaf rs of The crime in quesTion, There is no person in between and commiTTing The iminai Appeal Nos.871/2005, 872/2005 ore- liable To be dismissed and They are ’2007 sTands disposed of. Sdl- Sunil Kumar Sinha Judge P.T.Oi ConsequenTly, M.(Cri.)P.No‘63;‘