HIGH COURT OF CHHATTISGARH, BILASPUF‘ Criminal Appeal No.484/ 2003 APPELLANT Sukul Ram aged, about 32 yeaxs, s/o Janguram, R/o Viliage Sonpur RS. Kapu, Distn'ct Raigarh (CG) VERSUS RESPONDENT Tht Stats of Chhattisgarh CRIMINAL APPEAL UIS 374 (2) OF THE CODE OF CRIMINAL PRDCUDERE Appearance: (a. Smt. Savita Tiwari, counsel for the appenant. Shri S.R.J. Jaiswal, Panel Lawyer for m6 Statc‘ DEvision Bench:— Hon’ble Shri T.P. Shanna & Hon’bie Shri KLJhanwm-JJ cRAL JUDGMENT (14.2.20 11) Per T.P.Sharma, J. Challenge in this appeal is to the judgm€nt of conviction and order of sentence dated 18.2.2003, passed by the 31d Adtiitional Sessions Judge (FTC) Raigarh in S.T.N0.222/2002, whereby and where under the learned Ad<iitional Sessiens Judge, after holding the appellant guilty for commission of culpable homicide amounting to murcler of Maniram, convicted the appellant ander Section 302 of the IPC ancl sentenced for life imprisonment. 2. The conviction is impugned on the ground that without there being any iota of evidence sumcient for conviction of the appellant, the learned Additional Sessions Judge has convicted and sentenCEd the appellant as aforementioned and thereby committed megality. 3. As per case of prosecution in the fateful intervening night of 23.8.2002 and 24.8.2002, present appellant caused fatal injury upon the head of Maliiram on the ground of suspicion relating to witchcraft and caused his instantaneous death. Reportwas lodged and merg was recorded. The Investigating Odicer left for the scene of occurrence and after summoning witnesses vide EX.. P/4, inquest over the dead body of the deceased was prepared vide EX. Pj5. Blood stained soil and plain soil, one jute bag stained with blood was seized from the spot vide Ex. P/6. Map was prepared vide EX. P/7. Dead body was sent for autopsy to Civil Hospital, Dharamjaigarh, Where Dr. AS. Thakur (PW-8) conducted autopsy vide EX, P/9 and found following injuries : i. ,Multiple fracture of left pan'etal bone off} X 3” 11 Multiple fracture of left. occipital bone of 4 X 3" in Brain came out from the injury Mode of death was shook and death was homicidal in nature. During the course of investigation, accused was taken into custody. He made disclosure statement of axe vide Ex. P/ 1; it was recovered at the instance of the appellant vide Ex. P12. Blood stained clothes of the deceased were seized Vide Ex. W3, Stick was examined by the Doctor vide Ex. P/ 10. Patwaxi prepared spot map vide Ex. P/ 12. Statements of the Witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short the Code}. 4. After completion of investigation, charge sheet was filed before the Judicial Magistrate First Class Dharamjaigarh, who in tum, committed the case to the Court of Sessions, Raigarh, from where the learned Additional Sessions Judge received the case on transfer for trial. 5. in cider to prove the guilt of the accused/appellant, prosgcution examined. as many as 9 witnesses. Accusmi was €Xamined under Section 318 of the Code, in which, he denied the circumstances appearing against him, innocence and false A implication in crime in queetion was claimed. 6‘ After aifording opportunity of healing to the parties, the learned Additional Sessions Judge convicted and sentenced the appellant as aforesaid mentioned. 7. We have heard Smt. Savita Tiwaii, learned counsel for the appellant and Shri S.R.J. Jaiswal, learned Panel Lawyer for the State, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellant vehemently argued that conviction of the appellant is solely based on the discovery of fact and statement of the appellant relating to commission of crime before the Police Officer, which itself is not admissible in evidence and except the aforesaid evidence, prosecution has not examined any witness or has produced any material to prove the conviction of the appellant in crime in question, therefore, the conviction of the appellant on the basis of aforesaid inadmissible evidence is not sustainable under the law. 9. On the other hand, learned counsel for the State vehemently opposed these arguments and submitted that prosecution has proved its case beyond reasonable doubt and has rightly convicted and sentenced the appellant for commission of the odence of culpable homicide amounting to murder of Maniram. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 11. in the prcsent case, homicial d€ath as a result of ftal njury on the body of the deceased has not bcen substantially disput€d on behalf of the appellant, on the other hand, it is established by the evidence of Dr. A.S.Thakur (PW-8) and autopsy reports Ex. P/9 and death of t deceased was homicidal in nature. 12. As regards complicity of the accused/appellant in cr n question is concerned, prosecution has examined th evidence lating to extra judicial onfession made by the appelant and recovery of weapn of offence on the basis of discovery statement of the appellant. As per Ex. P/ 1 discovery statement, present appellant has made discovery statement on 25.9.2002, second day of alleged FIR relating to stick and same has been recovered at the s instance of appellant vide EX. P/2. The Investigating Odicer ha also seized blood stained shirt of the appellant. If without any corroboration, the aforesd evidence is onsidered then only inference would bepossible that one stick has been seized at the instance of presen appellant. Stick has not been identified by any of the witness to connect the stick in cr in questio. Possession of stick itself is not a incriminating circumstance. Shirt has not been examine by the chemical expert to establish that the blood found on the shirt was the blood of the deceased. In absence of such evidence, seizure of shirt of appellant is of no use. P-3- Sukhram, PW—4— Vishnuprasad, PW—S-Guduram and Surit Singh - PW—6 have deposed in their evidence that dead body of Maniram was‘ lying in the Varandah of the present appellant and the appellant was not present in house. The appellant made extra judicial confession before them in presence of police that he has committed murder of Maniram. As per para 4 of evidence of PW—l— Ghasnin Bai. dead body of Maniram was lying in the Varandah of the appellant along with the dead body of son of the appellant. In of absence of such evidence, seizure of shirt of appellant is of no d a i he ime i e re c l o ai c t ime n n d W use. Evidencs of PW-3— Sukhram, PW~4— Vishnuprasad, PW—S- Guduram and Surit Singh- PW—6 reV€a1ed that the appcllant has made extra judicial confession of the guilt to them before Polica. In fhsse circumstancss, the aforesaid evidence of extra judicial confession is not admissible in evidence and hit by Sections 25 and 26 of the Evidence Act. Prosecution has not connected any other set of evidence against-the appellant. Virtually, prosecution has not collected any legal admissible evidence to connect the appellant in crime in question. Consequently, in absence of any evidence against the appellant, conviction of the appellant under Section 302 of the IPC is not legally sustainable under the law. 13. For the foregoing reasons, the appeal deserved to be allowed and it is hereby allowed. Conviction and sentence of the appellant —Suku]ram under Section 302 of the IPC is hereby set aside. He be l sunita set at liberty at once. He be released forthwith, if not required in any other case. Sd/— 17' 311/. \ "T.P. Simm’ {fl} R.L. Jhanwar 53; jadée ‘7 Judge