HIGH CQUR'ILOF CTIHATTISGAI^H AT BILASPUR Crimiaal Aooeal No.763/2002 APPELLAIT (In Jail) VBRSUS RBSPONDBNT Bhogami Bheeina, son of Shri Bhogami Budhu, aged about 32 years, By profession Cultivation, Resident of Narpa Navipara Moluraaar, PoUce Station Bhaisi, District Dantewada, Chhattisgarh State of Chhattisgarh Through PoUce Station Bhaisi, Distiict Dantewada, Chhatdsgarh CmMINAL APPEAL U/S 374 (21 OF THE CODE OP CmMINAL PRQCUDERE Appearance: Shri Ashok Mishra, counsel for fhe appellaat. Shri N.K. Mehta, Paael Lawyer for the State. Division Besich:- Hon!'fele Shri T.P. Sharma & Ho2&?ble Shyi R.L.Jhanwar^JJ Per T.P.Sharma, J. QRALJUD^ jBNT (09.12.2010) Challenge ta this appeal is to fhe judginent of couviction aiid order of senteuce dated 16.5.2002, passed by fhe Sessions Judge, Bastar at Jagdalpur (CG) in S.T.No.42/2002,whereby aad whereunder tihe leamed Sessious Judge, after holdiag the appeUant guilty for coniniission of culpable homicide aoiouiifcsiig to murder of Potami Kate, convicted the appellant under Secdon 302 of fhe IPC aiid sentenced for Mfe miprisonnient. „ 2, The convictioii is impugned on fhe ground fhatwitliout there beitig any iota of evidence sufficient for conviction of titie appellaat, the leamed Sessions Judge has convicted and sentenced fhe appellant as aforeinentioned aad fhereby coniniitted iUegality. 3. As per case of prosecution, on fateful day of 25,11/2001, m inormng at about 7.30 am, Potami Kate (since deceased) was present iii his field along witii his wife- Pot^mi Aayati, at fhat tmie, fhis appellaiit assaulted Potaaii Kate by aii axe and fhereby caused his iastaiitaaeoiLs deafh. Wtfe of ftie deceased was weepiag aad alter hearuig the sound of coiamotion, Madhusudan Siagh (PW-2) went to fh.e field; thereafter he went to fhe house of Patel, where fhe appellaat made extra judicial confession of coinniission of inurder of Potaim Kate. Then he went to PoUce Station aad lodged FIR vide Ex. P/l and Merg intimation vide Ex. P/2. The Investigating Officer left for the scene of occurrence aad after sumaioning witaesses, inquest over fhe dead body of fhe deceased was prepared vide Ex. P/ll, Blood staiaed soil, plain so.il aad blood stamed clofhes aad ofher articles staiaed with blood were seized froin fhe spot vide Ex. P/9. Dead body was sent for autopsy to P.H.C. Bacheli vide Ex. P/5-A, where Dr. G,R. Uraou (PW-5) conducted autopsy vide Ex. P/5 aiid found foUowmg injuries : i. Incised wound near right ear of 7 x 4 Vs cin x skia deep ii, Inc^ed wound over right temporo frontal region of7 x 2 cni x skia deep iii. Incised v^oiuid over right occipital region of 9 ^h x 2 cni x skia deep iv. Incised wound over back side of the neck ofl3 x 2 x 3cm aad bone of neck was visible. v. Incised wound over left shoulder of 1 V^ cm in lengfh x skia deep vi. Lower right earlobule was found cut and bone offheearwas visible. vii. Major yeins of fhe neck were found cut. viii. Miiltiple fractures on temporo froiital area ix. Fracture of occipital bone. ,^.'y^ ^^ ^-^, %. vv yj ^, Mode of deafh was coxna and deafh was hoinicidal in naturc. During the course of iavestigation^ accused was taken iato custody; he raade disclosure statement of axe vide Ex. P/3; fhe saxne was recovered at his instaiice vide Ex. P/4, Sealed clofhes of fhe deceased were seized vide Ex, P/12. Seized articles werc sent for cheniical examiiiation vide Ex. P/13; presence of blood was coniinaed over ftie axe vide Ex, P/ 14. Stateinents of fhe witoesses were recorded under Section 161 of tlie Code of Criniinal Procedure, 1973 (ia short the Code). 4. Affcer coinpletion of investigation, charge sheet was ffled before fhe Chief Judicial Magistrate Daatewada, who iii tum, coBiiaitted fhe case to fiie Coiirt of Sessions, Jagdalpiir, where fhe tdal was conducted, 5. In order to prove the guilt of fhe accused/appeUaat, prosecutiou exanuxied as inaay as 6 witoaesses. Accused was exaaiiaed under Section 313 ofthe Code, ia which, he denied fhe circuinstaaces appearmg against him, ninocence arid ialse iaiplication in criine ia question was claiaied. 6. After affbrduig opportunity of heariiig to the parties, the leained Sessions Jtidge couvicted aiid sentenced tlie appellant as aloresaid mentioned on fhe ground of extora judicial confession niade by fhe appellaat before the witaesses. 7. We have heard Shri Ashok Mishra, leamed counsel for fhe appellaat aad Shri N,K. Mehta, leanied Panel Lawyer for fhe State, perused fhe judgnient imipugned aad record offhe trial Court. 8. Leamed counsel for fh.e appeUant veheiaently argued fhat conviction of fhe appeUaiit is substaatially based on the evidence of Potami Chamm (PW-1), Madhusudan Singh (PW-2) and Warsa HiTQia (PW-4) , who have deposed fhat fhe appellaat had inade extra judicial confession before fhera and the viUagers fhat he has kUled Potami Kate, but ui tlieir cross examuiation, fhey have .:?.^^:~%-s. ••' (^7 '7 specifically adirdtted fhat under ffae pressure of villagers aiid on the pretext fh.at if he wffl not admit fhe gziUt flien entire vUlagers would be in trouble, fhe appellant inade such extra judicial confession before them, therefore, there is no vokuitaiy extra judicial confessiou or extra judicial confession ofcouxraission offhe guUt aad io. absence of evidence of extra judicial confession or any ofher evidence to connect tlie appeUaat ia criine ia question, conviction of tiie appellant under Section 302 of fhe IPC is not sustaiaable under ftie law, 9. Ou ftie ofher haiid, learaed counsel for the State opposed fhese arguinents aad subniitted tliat on the basis of extra judicial confession, Court below has righfly convicted aad sentenced fhe appellaat as aforesaid xnentioned. 10. In order to appreciate tiie arguinents advaaced on behalf of fhe parties, we have exaniined tlie evidence adduced on behatt' of the prosecution. 11. In the present case, homicidal deafh as a result of fatal mjury found over tlie body of fhe deceased-Potami Kate has not beeu substaatiatly disputed on behalf of fhe appellaiit, on the oflier haad, it is established by the evidence ofDr. G.R,Uraon (PW- 5) and autopsy report Ex. P/5 aad deafh was hoinicidal iii nature. 12. As regards coinpUcity of the accused/appeUaat in crime iii question is concemed, conviction is substaatiatly based 011 fhe evidence of extra judicial confession raade by fhe appeUartt to Potami Chamm (PW-1), Madhusudan Singh (PW-2) aad Warsa Hirma (PW-4). Confession ifproved to be true fhen fhe same inay be reUed upon and extra judicial confession alone is sufficient for convictiou of the appellant. As per evidence of Potaiai Chaiiiru (PW-1), fhe appeUaiit raade extra judicial confession before fhe viUagers, where he was also present. In para 7 of his cross examiaation, he has spect&cally admitted fhat viUagers fhreatened T:3%s ® flie appeUaat aad conipelled him for adxnissiou of fhe guilt on tlie ground tliat if he will not admit fhe gziilt fhen fhe entirc viUagers would be ia trouble aad PoUce witl detain atl fhe viUagers fhen fhe appeUaat adinitted fhe guilt, WhUe corroboratmg ftie evidence of Potami Chamru(PW-l), Madhusudan Singh (PW-2) has also deposed saaie fhiiig. In para 6 of his cross examination he has adniitted fhat pressure was created by fhe vUlagers for adiuission of guilt by the appeUant, fhereforc, he has admitted fhe guUt Warsa Hircaa (PW-4) has direcfly corroborated fhe evidence of Potami Chamru (PW-1) and Madhusudan Singh (PW-2). Evidence of fhese witiiesses clearly shows fhat fhe appellant has not inade aay extra judicial confession voluntarily even he has not niade any extra judicial coniession ia fear or fhreat, but as advised by fhe viUagers, he has stated before fhe villagers fhat he has coniiiiitted inurder of Potaini Kate wifh a view to save fhe viUagers froni trouble. 13. Considermg the evidence of aforesaid witaesses, we are unable to accept tlie aforesaid evidence as extra judicial confession niade by fhe appeUant for comniission of culpable hoinicide azaounting to niurder of Poyaini Kate. Prosecution has not adduced axiy ofher evidence to connect the appeUaat ia criine ia questiou. Evidence of extora judicial confessiou is not reUable even the same is not an extra judicial confession, therefore, ia absence of any extra judicial confession raade by fhe appellant, conviction of fhe appeUaiit iinder section 302 of fhe IPC is not sustainable under fhe law. 14. Consequenfly, fhe appeal is atlowed. Conviction aiid sentence of fhe appeUaiit under Section 302 of fhe IPC is hereby set aside, The appellaiit be set at Uberty at once, tf not required ia aay otih.er case. ^"^ Sd/- T.P* Sharma Judge Sd/- R.L. Jhanwar Judge