_ I, “M; _ ‘ ] I ii ||||||||l||ll|H|l||||||||||| CF0000058564 r r 'wf \Jm JPR—5 lag/(Jam 000-9 81 _. C 2% ,. f. V ‘ ,‘ 1 No. 4% ‘ ‘ Fathefs namc ~-$7>Z§<$ -——————~———————————y_—_ V ‘T__l+~‘__r- 1 , V ’ I RendeneeW—giw kg QETW _~__.__-_ 7 " V r Sgntenecd to—— $ g7f§wmym o{*_g.Lmff ‘Under secnon ~WW—% _— by ”)5w9w?aé / ______-, / mwyavrwwarwwva/ .. . .............................. y 9 i —-*—— _‘——— Name ‘ V K w ...... J use plal d to the pnsomr lat 1f he states or w13h6s to b legal practluoner does not aprwr wnh m seven days he may not be heard at all If the pnsoner states that l‘e does not V\ 15h to be represented by legal practitioner the court may proceed at once wrth the case and wlll not be oblrged to give a hearmg to any legal practrtroncr who should appear l Date of Applicatron for copy of Judgement ——&L113§——~_~.__‘__~ __ gpraet c represented b\ 1 Icgdi jt; 2 Date of Whrch copy recelved -— 4S Lib! £k 3 L Date on which Appeal sent ————————kLil—3g Whether the prisoner Wrshes to be represented or not- YesW '1 ‘: > Contrnuedm~— ———w—&&~——’-—‘—Jarl~w v “ _ N9-’_»e\___e__~-t_e._datcd \ Forwarded to the CHIEF JUDICIAL MAGISTRATE o gather wrth a copy of Judgement or order passed m the case for lamur cf I ransmrssron to the proper Appllllate Court I é SuperlnteMtWW u b-Jal ate ofreceipt in C J M ’S Officee Date of recerpt of record to accompany _ Memo f A peal o‘ftheA pel te Court ——~ who _ r 7 —f ate J C J Magrstrate {$ del ga .xr IW “'“ we, Dste of receipt in Appliate Courtt~‘-—~5———_~___ _ K \ "1 \ _ r V m t t j D h y ~ d i o l ' " H!GH COURT OF JUDICATURE AT BILASPUR: CHHATTISGARH Criminai Appeal No. 1195 OF 1994 Plasidas Vs. State of MP. JUDGEMENT FOR CCNSIDERATION */‘_ r‘ Sd/- DHmENDRA MISHRA Judge HON’BLE SHRI L.C.BHADOO ,J. Sd/- L.C.BHADOO w Judge " , - r , V POST FOR JUDGMENT ON JANUARY 2006 Sdl- Dhirendra Mishra' Judge ‘ r_#r " , \ W X \ H§EH CQURT OF CH%&T?§$G§%RH: WLA$PUR D§visian Bensh: Han’ble $hri LCBhadoe & Hon’bie Shri Dhirendra Mishra. JJ Crimina: Appeal No. m5 cf 19% Appeilarift Piagida$ ’u‘s. Respondem : gtawfe of Madhya ?ra&esh Appeilant by Ms. Sangeeta Mishra, Advocate. Staie by Shri Akhii Mighra, §3anei Lawyer. J U D G M E N T (Deiiavered on 3V5 m1/2fl96} Fier Ehérendra Mi3hra. J This is the prisoner’s appea! fmm jail under Section 374(2) of the Code of Criminai Frocedure as he has been convicted and sentenced to undergo iife impri3onment undar Section 362 of ihe ind§an Penai Code for intentionaigy causing homicide! death of Teophii Lakda, by iearned Additienai Sessions Judge, Jasnpurnagar in 8.T.No. M/B3 vide iudgment dated {33011994. 2. The case 9f the prosecution in brief is that Ranjeetrant Lohar {P.W.1} of Viiiage—Jabia iodged the report ef EXPH on 28.1 11992 in Police Station-Tapkara informing that about 8.00 am. he feund the dead bedy of Teophii Lakda which was lying under the Mahua tree. ‘ He informed abeut the eame te Sarpanch‘nameiy Devprased and came to iodge the repert aiong with him. it is further mentioned in the First Information Report that after iedging of the report Plasidae reached there and confessed that he has ’\<‘_ . pg med Teaphi! by sal—ciub at about 21 hours in the previous night as he waa invoived in wrong ac£ mm his mother which he wind not tc!erate. Afzer rtegisiering the offence five pence initiated investigation and during investigatian inquest of EXP/2 over the dead boa’y of the deceased was performed after issuing notice to and submitted his report of Ex.P/? in which he found i) iaceratect iacerated wound over wound ieft parietal 4” beiowthe region ie‘it size kneejeint 3” x 2‘5 size cm. 2.5” scaip x 3 deep; om. and 2) 3) biood was oozing from the iet‘t ear. Aii the injuries were caused within 24 -36 hours. He atso found iett parietal bone fractured and that aii the injuries were caused by hard anti biunt object. He opined that death of the deceased wae due to coma and the death was homtctdai in nature. Plain and bloodstained eoii and piece of wood containing blood were seized from the spot vicie Ex.P/3. Memorandum of the accused wee recorded vide EXPM and in pursuance of the memorandum the Weapon of EXP/5. Bloodstained Lungi was seized from the appetiant vide the documents ctub seized of Ex.P/6. from the Opinion appettant of Dr. was Paikra obtained. (ExPia) Spot regarding map ot' EXP/9 was got prepared by Haika Patwari. After compietion of the investigation the poiice tiled charge sheet against the appeiiant in the Court of Judiciai Magistrate First of sessions Judge, Raigarh and the same was received on offence i.e. ciub was seizedrat the instance of the appeilant vide transfer by the iearned Additionai Sessions Judge, Jashpurrfagar for trial. ‘ 302 Learned ofthe Additional IPC. The Sessions appellant Judge abjured framed his guiit. charge under Section J Prwecutian in arder m estabii$h its case exammed 1D witnesse$ in all and thereafter statement of the accused/appeliant under 8ection 313 of the Cr.P.C. was recorded. The accused denied the circumstances appearmg against him in the prwecutian case. Afigr hearing the arguments of the Addittonal Public Proseeutar and coue‘sel for the accusedtappeltant, learned Additional $eselons Judge convicted and sentenced the appellant as 'mentioned above. Conviction le on the basie of circumstantial eyirjence as there ie no eyewitnees to the incident. The circumstances relied upon by the learned Additional Sessione Judge to convict the appellant are summarized as under; a) that the deceased had illicit relationship with the mother of the appellant which was in the knowledge ofthe appeliant and he did not appreve the same and as such the appellant had strong motive for committing the above offence. b} ‘i'hat the appellant was spotted alive in the company of the deceased last time when Terea (P.W.5) and Fransis Lakda (P.W.7') heard the singing voice ofthe appeilant and sound of beating and in the next morning they learnt that appellant has killed the deceased. c) That the appellant had confessed his guilt before lmil {P.W.3) that he had killed Teophil Lakda and this tact is also mentioned in the First information Report of ExPii. Learned counsel for the aceusedlappellant has challenged the above 'hndings on the ground that witness Vinay Kumar is the only § eyewitness to the incident, however, he has not been examined by the prosecution and there is no‘ explanation for his non- examinatio’n and as such adverse inference ought to have been drawn against the prosecution for non—examination of the only eyewitness of the maiden: It ‘s further argued that the Gourt oe aw has acted upon the statements of P W E and D W ? thougn n their statements there are material chsclenanczes Tha Ceurt below has mqngly railed upon the enm/ appearing m the HR where confeSéion of the appeiiant to his guilt is recerd’md k is further argued that the aHeged extra judmal confeaspan before P W 3 Iml come! not be behaved as this witnesa n paragraph a af his cross-eAaiiiination has categoricauy siated that the accused never mat him and he did nei disciase anything. Retying upen the judgment of the Supreme ceurt tn the matter ef Hem Rai and ethers Vs. state of Hariyana reported in 2$9§ MR $CW 18% it is argued by counsei fer the appeiiaht that where the independent witnesses were avai‘abie and were not examined by the emeecutien Without any erpianatien such nen examination is a serious intimity m the prosecution case and adverse inference eught to have been diawn against the presecutien On the ether hand, teamed counsei fer the State eupporte the impugned judgment ofthe triai Court. We have heard learned counsei forthe respective parties. The homicidai death Teophil Lakda is not in dispute. t is settied iaw that when a case rests upon the circumstantiai evidence euch evidence must satisfy the totiowing teste; i) the circumstances from which an inference ef guitt is. sought to be drawn, must be cogentiy and firmty estabiished' ii; These circumstances shouid be of oefnite tendency, unerringly pointing towards guiit ofthe accused those Circumstances, taken cumu ativeiy, shouid form a chain so cempiete that there is no escape from the U‘ conciusion that within ali human probabiiiiy the crime was commiited bythe accused and mne else; and iv) the circumstantial Evidence in erder t0 suetairi canviction must be compiete and incapabia 0f expianation of any other hypethesis than that cf the guiit of the accused and such evidence shouid not only be consietent with the guiit of theaccused but ehcuid be inconsistent with hie inhecence. We propose to scrutinize the caee in hand in the ii§ht ofthe above tests. So fer as the motive attributed to the appetiant for committing the offence is concerned, the same rests on the statement of RW. 3 imit Kuzur who has stated in paragraph 1 of his statement that the deceased had itticit retationehip with the mother otthe accused and he has further stated that Panchayat ‘véasconvened and both the parties were tined. This witness has nowhere stated that the appettant nourished tii~witiltowards the deceased for the above reason. On the contrary, horn the statement of PW. 6 Tersa it appears that there was compiete harmony between the appettant and his parents and the deceased and his wtfe. This witness has stated in paragraph ‘1 of her statement that her father took Teophti (husband of her mother’s sister‘i and his wife to the house of accused. No other witness tnctuding the compiainant Ranjeet has either stated that the deceased had iilicit relationship wtth the mother ofthe accused or because ofthis retationship, accused nourished tit-wilt towards the deceased. E30 far as the circumstance of appettant being tast seen with the deceased when he was aiive is concerned, for establishing this tact the prosecution has examined P.W. B Te‘rsa and PW. 7 Fransis. Tersa in her statement has stated that 30—35 guests were present in her mother’s house to cetebrate some function; I re \ they consumed Hadiya (home u made intoxicant). Deceased w Twphi! and appeimnt also took Hadiya. Deceaaeri (husband of ‘i her mother’s sister} and his wife Wére‘ also present there and her father took the deceased and his wife to the heuse af accused af about 5&0 pm. and returned. The accused ieft her house aher some time. Ghe hour after their departure she went with Fransis— her brother~in¥iaw t0 the heuse of accueed and retuned to her Mag/Ire Tiii that time accueed had aieo returned hie house. When Tersa was returning with her father towards Mayka at the eame time accused was going with the deceased to ieeve him to his house e5 he had said that he wouid take him to his house. We (Tersa and her father) were coining from the other way whereae the accueed and the deceased were coming from another way She heare that accueed was singing by calling Teophil Pagla and was also assaulting. She else states that sound of beating was > manning. Then she says only Vinay went towards the source of souhd and they did not accompany him. Vinay came in the night to their houselbut did not tell anything. - She learnt that Vinay had visited her house along with accused on the same night but she had left for her ineiaws home. l'f we closely scrutinize the above statements, we may deduce that this witness went to the house ofthe accused with her brother-in~ iaw Fransis at about aim p.m. and returned with her father towards Mayka and at the same time accused was going with the deceased from some other way and white they were foliowing some different track, they heard the accused singing and the sound of assaulting the deceased. It aiso appears that Vinay was aiso accompanying them and he went towards thesource of voice. However, it appears that the tact that deceased and his wife went to the house of the accused was missing in her diary statement of Ex. Df1. She further states in her paragraph 3 of her crossuexamination that she returned with her brother-in—law alone. She further states that on the next day she iearnt that somebody has kilied Teophil and she cannot say as to who kiiled him. She further admits that the voice of the person heard by them was ' similar t6 that af Piasidas, however, he cauid be ather per5on dsso. RW. 7 Fransis Lakda*bmther«in~law of RWG Tersa ha5 stated that he had gone to viEiage Jhiibarna Le. his-in-Jaw’s house and at that time accused as aiso deceased Teephh were there. Teophil is the husbamj of sister of his wife’s mother. They ccneumed Haciiya, thereafter the guests le1°t fer their houses and he went with her sister~in—Iaw Tersa te the house of imii where Teophii and accused were also present. They again took Hadiya from imii’e house. Whiie they aiong with Tersa, Vina‘y were returning ta Matiyas house, they heard the sound of beating and singing. The person who was assauiting was singing else and the voice ofthe singer was simiiar to that ofthe accused. Vinay went towards the source of sound. in the next morning he learnt that the accused has kiiied Teophii. ). 15. Thus if we scrutinize the statements of these two witnesses we iinci material discrepancy in their accounts. Where witness Tersa states that she was returning to her parents house aiong with her father, Vinay and her brother-in-iaw from the house of accused, the incident took place on some other way white P.W.7’Fransis states that they were in fact returning from the house of tmil along with his sister—in~law Tersa and Vinay and on way they heard the sound of beating and singing. 16. lf the two witnesses are to be betieved then it is also to' be believed that the accused was accompanying their own Mouse and the accused was going to leave their Mouse to their house and therefore, had they heard the voice ofthe accused and further the sound of beating, they would have definitely gone towards the source of sound and ascertained about the fact. Therefore, the conduct of the above witnesses is absolutely unnatural and hence unreliable. The discrepancy in their statements regarding place from where the appeliant took the deceased aiso throws serious 1,2”! douiat an their amounts. Tersa states that she went i0 the heuse 9f the accuseci aiong with Fransis wherea$ Fransis states that he never went to the house of the accused and furthea' states that they went to the hcuse of lmii, took Hadiya. Thue, except the above two witnesses there is no other witness to the tact of iaet eeen together of the appeltant and the deceased white the deceaeed was aiive and therefore, we are of the cansidered opinion that the prosecution hae failed to eetablish the factum of teat seen together by ieadtng cogent and reliabie evidence. The third circumstance reiied upon bythe proeecution is the extra judiciat confession made by the appeiiant before P.W.3 tmii. tn / paragraph 1 this witness has stated that accused works with his mother and he caited him in his thrashing fleid and confessed that he has killed Teophil. However, in paragraph 3 of his cross— examinattoa he has admitted that he never met accused and the accused did not tetl him anything“ He has further stated that‘it is true that because the accused had come to know that the deceased had itticit reiationship with his mother, therefore he has been fatseiy impiicated on the basis of suspicion Thus ieoking to the contradictory statements otthis witness in his examination—in-chief and cross—examtnation, no credence can be given to the atteged extra judicial confession made by the appeilant before this witness. The Court heiow was not correct to reiy upon the statement ot' this witness for the purposes of extra judicial confession. The Court beiow in paragraph t3 of its judgment has referred to portion of the FIR wherein it is mentioned that the accused had informed Ranjeet that he has kiiled Teophil and this portion has not been challenged by the defence side, therefore taking aid with the document of Exf’lt it has been held‘that the prosecution has proved its case. The above finding of the learned Additional Sessions Judge cannot be sustained as FIR is not a substantive ‘r‘yr; piece of evidence and it Can 5imply‘c0rroborate or contradict its maker. Since Ranjeetram (P.W.1) the maker ofthe HR has mat stateti anything regarding confession by the appellant befare him, any stipuia’rien regarding confession present in ihe FIR is m‘ no consequence and the accused cannot be convicted on the basis of ouch stipulation in the FIR. Confession before police at the time of recording FIR is also inadmissible. 20. Lastly, from the statements of PW. 6 and P.W.7 it is evident that Vinay Kumar was the oniy eyewitness to the alleged incident who was accompanying the above witnesses and who went towards the source of sound and thereafter returned to the house of Tersa / in the night aiong with the accused. However, for the reasons best known to the prosecution this witness has not been examined and we do not find any explanation for non‘examination of this important witness. We have already arrived at the conciusion that the prosecution has faiied to establish individuai circumstances relied upon for proving the guiit of the accused. The non- examination of Vinay Kumar, the’only eyewitness of the incident compels us to draw adverse inference against the prosecution as it is the bounden duty of the prosecution to examine ali materiai witnesses particularly when there is no aiiegation that if produced, he would not speak the truth. Circumstance ofthis witness being withheld from the Court casts a serious reflection on the fairness of the triai. in the instant case Vinay Kumar was the oniy most important witness who could throw some light towards the true circumstances. However, his non—examination couigi also prejudice the defence ofthe accused. 2t. The Supreme Court in the matter of Habit) Mohd. Vs. State of Hyderabad reported in AIR 1954 $.C. 51 while considering non~ examination of materiai witness has held that it is the bounden duty of the prosecution to examine the material witness, particularly when no ailegation has been made, that if produced, @ 10 he wouid not speak the truth. Not oniy adverse inference arises against :he prosecution case for his non-production as a witnese in View of iiiustration (g) to Section 114 of the Evidense Act, but the circumstances of his being withheid frem the Court casts a serious reflection on the fairness ofthe triai. 22. Similarly, in the matter of Ram Prasad and Others Vs. $tate at Utter Pradesh reported in MR 19?3 8.6. 2&?3 in paragraph 13 it has been heid that it is no doubt true that the prosecution is bound to produce witnesses who are essential to unfolding of the narrative on wl'iich the prosecution is based, however, it cannot be laid down as a ruie that it a large number of persons are present at the time ofthe oc‘currence, the prosecution is bound to call and examine each and every one ofthose persons. The answerto the question as to what is the effect of non-examination of a particular witness wouid depend upon the facts and circumstances of each CaSe. In the instant case Vinay Kumar is the only eyewitness who altegedly went towards source of sound and his non~examination is fatal. 23. The Supreme Court in the matter of Gaiendra Singh Vs. State of UP. reported in MR 1975 S.$. 1?B3 while considering the effect of non-examination ofthe most materiai evidence has further held that wherethe defence fails to examine the most materiai witness to prove the defence version and no explanation for the non~ examination has been given by the defence, the non-examination of such witness is the strongest possible circumstance to discredit the defence version because she alone couid have been in the best position to explain whether the version of the defence is true or not; 24. The Division Bench of the Madhya Pradesh High Court in the matter of Niran Vs. state of MP. reported in 1988 J.L.J. §a5 has reiterated the affect of non-examination of the material witness by the prosecuticn and held that tha prosecution has failed to establi5h the true circumstances under which the offence was cammitted. A5 already stated we have discussed in detail the discrepancies present in the statements of witneseee examined by the presecutio‘n to estabiish individuai circumstances on the basis of which they were connecting the appeiiant with the offence. Apart from the aforementioned discrepanciee the nan-examination of Vinay Kumar, the only eyewitness and the witness ei’ prevailing circumstances throws serious doubt on the case of the prosecution. 26. Thus on the basis aforesaid discussions, we are of the opinion that the prosecution has utterly taiied to connect the appellant with theraileged offence on the basis of circumstantial evidence. eccordingly we aliow the appeal of the appellant, set‘aside the impugned iudgment of conviction and order of sentence passed by the trial Court and acquit the. appeltant of charges framed against him and direct to set him at liberty forthwith, if not required Sd/- ‘j .. I Dhirendra Sd/- Mishra"! " i ‘ l in any’other case. KN ’W L.C.BHAD00 f Judge ' . V