A'Fig. HX6HCOURT OF CHHATTISSARH AT BILASPUR CMMINAL APPBU. No. 1924/ZQW Appellmt: Respondent; Appellcnt: Respondent: Poyame Bhadru, Son of Shri Borga, aged obout 48 yeors by caste Madiya, R/o. Villcge Silok Jhodi P.S. Kodenor, Distt. Bastcr Versus State of M.P. (now ChhattiS9arh), P.S. Kodenar, bistt. Bastu- & CRIAUNAL APPEAL No. 2270/2000 Sodi Mahadeo, son of Bhima aged about 25 years, ecste- Madiyo, R/o. Villa9e- Silak Jhodi, P.S. Koderwr, Distt. Bastar Versus State of M.P. (now Chhattisgar+i), throu9h the P.S. Koderw. Distt. Bastor. CORAM; OB: HON'BLE SHM VUAy KUMAR SHRIVASTAVA A HONW.E SHRI &HIREhtt)RA MISWA. JJ. ll»li—' PRESENCE Shri Hanuman Prasad ^raMfol, Advocate for appellont Poyami Bhodni in Cr.A. No. 1924/2000. Ku. Shormilo Sin9hai, Advocate for appellant Sodi Mdiadeo in Cr.A. No. 2270/2000. Shri U.N.S. Deo, Addl. Pitolic Prosecutor, for the State. JUOSWENT (Dated; 3-11-2006) The following judgment of the Court was delivered on Dias by Vijay Kumar Shrivostma, J. Both the appeals arlse out of common judgment of conviction and order of sentence dated 14-7-2000 pas^d by First Additional Sesslons Jud9e, Bostar at Ja9dalpur in S.T. No. 57/2000, ttierefore they^re token together for hecring and disposal. "-S-3'' jsr First Additional Sessions Judge, Bostar at Jagdalpur holdirg appellont Poyami Bhadru guilty for committirg murder of his san Poyomi Somani uidei* Section 302 reod with Section 109 of I.P.C. and holdin9 appellant Sodi Mdiadeo 9uilty for cominittin9 murder of Poyami Somcru uider Seetion 302 of I.P.C., sentenced each of the oppellants to undergo imprisoronent for life and fine with default stipulation. Facts unfolded dtB-iry trial are that Poycmi Bhadru and his son Poyami Somaru developed strained relations, therefore Poyomi Bhadru entered into a controct with Sodi MAadeo oskjng him to kill P<^ami Somcru cnd in lieu thereof assured him to pay Rs. 4,000/- and two goats. In the intervening night of 11-9-1999 and 12-9-t999 when Poyomi Somaru wes alone in his house, appeilcnt Sodi Mahadeo entered inslde his hoiee and inflicted iryuries with an axe on his hecd and kitled him. On the next dcy mornirg when Poyomi Bhadru visited the house of Poyomi Somcru, he scnw his decri body, therefore, he 9we information to Kotwan". Ko-twar Suklu accompcnied wtth^other persons went to Poyami Somwu's residence where they saw his dead body havirg iryuries on his head. A meeting was convened, in presenceof appellant Poyami Bhadru, Sodi Mahadeo in that meetirg qDnfessed his 9uilt by stating that Poyami Bhadru promised him to pay Rs, 4000/- and two gocrts for vanishin9 Poyomi Somaru., therefore he killed him. Suklu aftep knowing the detdls went to Police Station Kodenar where he 9ave mer9 intimation ond got recorded First Information report. Sub- Inspector Jerol Lakda r-ecorded Mer9 intimatlon and First Informflrt-ion Report and proceeded to place of occurrence to conduct lrK[uest. In presence of Panch witnesses, he prepared inquest report and forwarded the deeri body of Poyami Somaru to Primery Health Centre, Bade Kilepal. &r. LaMian Jurri did autopsy. He found three iryu'ies on his body. The iiyta'ies were ante mortem 'm nature ond were coused by hard and sharp object and in his opinion, cause of death wos head iryury and coma and the death was homicidal in nattB'e. He prepared autopsy report and forwcrded it to Police Station. &u'ln9 investi9ation, statements of witnesses have been recorded. From the place of occurrence, ptain earth and blood stained earth wer? cotlected cnd a •1*?-/ ir piece of wood said to be broken piece of handle of the axe found on the place of occurrence was also recovered. All these articles were seized, spot map was pwpored and on the fflemoranduni statement of oppellant Sodi Mahadeo, an axe hming broken hondle was recovered ond seized. His clothes were also collected. After post mortem examination, Investi9atin9 officer collected ctothes of the deceased.. Seized eo<e was sent to medical officer for examination ond opinion. Medical Officer &r. Lakhan Jurri opiniomd thot the Iryuries No. 1 and 2 found on the body of the deceased Poycmi Som<ru could have been caused by it. After completion of investi9ation, char9e sheet was led in the Court of Judicial Magistrate First Class, Jcgdalpir who comfflitted the case to the Court of Session for triot. Onarge under Section 302 of I.P.C. was frcniedagainst Sodi Mchadeo and cha^e under Section 302 reod with Section 109 of I.P.C. was frflmed cgainst Poyanii Bhodru. Char9es were read over mid explained to them who abjured their guilt ond ctaimed to be-innocent. They pleadgd thot they have been falsely implicated in the offerice. Learned trtal Court after appreciating evidence on record, recorded findings cgoinst both the afyellcints caid accordlngly convicted and sentenced both of them. < Nort'ure of denth of Poyami Somaru to be hwnicidol ond iiyuries •found on his body are not disputed by the appellants. Even other wise, -(rom the statement of Dr. Lakhon Jurri (P.W. 6) and airtopsy report- Cx. P-6,it has been establidied that the iryuries found on the body of the deceased Poyami Somaru were ante mortem in nature and the death wras cauMd due to hecri iryury and coma and his death was homicidal in nature. The deceased received following iryuries:- (i) Incised cum stabbed wound 2 -i"x 2 ^" x l" vertically bone deep over left side of temporol i-ecson of skult; (ii)^Incised cum stab wound 2 i" x 2 i" x l." bone deep, horizontally over left side of nape of neck; (lii)Incised wound 3 ^" x ti-" x 1" muscle deep, horczontally over leftskle of Neck. 4 ^s- ;!»>. Prosecution case travels on extnyudicial confession made by the appelltmts. Evidence of SiAlu (P.W. 7) and Jayram (P.W. 8) on extray|udicial confession have been relied on by the trial Cotrt. AH other witnesses P.W. 1 Sodi Kamli, P.W. 2 Poyami Choppe, P.W. 3 Madvi Ouly, P.W. 4 Poyami Sukadi andP.W. 8 Madda, were declored hostile by the prosecution and they did not support the prosecution story- Jairam P.W. 8 in exfflninotion-in-chief stated that in meeting, oppeltant Sodi Mahadeo stated that Poyami Bhcriru asked him to kill Poyomi Somani, therefore, hy assaultirg with an axe, he killed Poyami Somefu but in cross-examination, he has statecl; that when Panchayat was cowened, potice peopte were there and enquiry was made in presence of police people and Sodi Mahtrieo made confession as a reailt of threatening and on being assaulted by •the police. From his statement it is ctear that the extra judicial confession made by a(yellont Sodi Mohtdeo was the result of asscult wri threatenirg, therefore on his evidence, it connot be acceptied that a •(ree and voluntary extrfljudieiat confesslon has been made by: cypettant Sodi Mflhadeo. Another witness P.W. 7 Suklu in'his statement deposed thut Pcyami Bhadru went to the house of Sodi JWahadeo and osked him to kill Poyami Somaru and'assured him to pay in lieu Ihereof Rs. 4000/- and •ta»o 9oat's. Poyami Bhodru cane to his house and stated thot he asked Sodi Mahadeo to kill Poycnni Somcfu and for killing Poyomi Somaru, assured him to pay Rs. 4,000/- ond to give two goats, therefore, Sodi Mahadeo has killed Poyami Somaru with an oxe. He went and seav the dead body of Pcf^tmi Somaru who had iryuries on his temporal re9ion cnd back side of head. Panchoyot was cowened. Poyami Bhadru on enquiry stcted that he promised to pay Rs. 4,000/- and two 900+8 to Sodi Mahodeo for killing Poyani Soma'u and, therefore, Sodi Mchodeo killed Poyaml Somaruwith an axe. Sodi MiAadeo in Panchcyat stcted that Bhadru asked him to kfll Poycmi Somaru and assured to pcy Rs. 4000/- and two goats, therefore, on the proniise_fflid^insti9ation of Poyami Bhadru, he killed Poyomi Somoru with an axe. -v^ Jairam (P.W. 8) did not dipose that appetlant Poy<ani Bhadru made any extrcyudicial confession whereas Suklu (P.W. 7) in his statement stated thcrt- Poyami Bhariru mode extriyudicial confession. From the statcment of Jairam (P.W. 8), it appears that police party was present when Ponchayat was convened whereos from the statement of Suklu (P.W. 7). it appears that before lodging report ondgiving information to police, the Ponchaycrt' took place. Stklu (P.W. 7) in his cross-examinert'ion stated that when the incident took ptace, due to ni9ht, on the next day mornirg, they went to police station. It appears that accordin9 to his statement, he went to police station on 13- 9-1999 whereas Merg intimatjon Ex. P-9 and P.I.R. 6<. P-8 have been recorded on 14-9-1999. In the Merg intimotion Ex. P-9 and F.X.R. B<.P-8, Suktu did not scy a sin9le word that Poyomi Bhadru also mcde ony extrtyudicial confession. In wefy intimation 6x. P-9, Suklu gom information that Poyomi Swnoni has been killed inside his house with an axe by Sodi Mohodeo. In Ex. P-8 i.e. First Information Report, Suklu reported that PoyeBni Bhodru came iand inform him that somebody has killed his son Soroaru inside his house. He further reported that in Ponchcyat, Mohadeo confessed that he was given assurance / of payment of Rs. 4,000/- and two 900+3 by Payami Bhiairu for kiliin9 Somaru, therefore he has killed Somoru by axe. Suklu (P.W.7) in his evidence before the Court not only contrcriict-ed his earlier statement lait elso improved his statement on moterial particula's. Other witnesses Poyami Chappe (P.W. 2), Madvi t>ul9o p.W. 3) present in the Pancheycrt- did not support the story that oppellants made confession of guilt before Ponchayat. Takin9 into account the contradictory stotement of P.W. 7 Suklu witli P.W. 8 Joirun ond other witnesses, contradiction with earlier statement on material particulcir, story developed by improvement made by him in Court- statement, no impticit relionce can be placed on his evidence. P.W, 7 Suklu in his statement has cleorly stated thataft'er Panchtyat, they went to forest where they saw the axe and left it there, therefore, in the instont case, the version of prosecution that at the instance of appellant Sodi Mohtrieo, the axe was reco»ered,toses its sonctity. The^iatenent of .^^ :-t Suklu (P.W. 7) is not reliable, from evidence of Jaram P.W. 8) free and voluntwy extra judicial corrfe«ionmade by Sodi Mahadeo is doubtftil ond no other evidence hos been produced by the prosecution to estabiish imolvement of appellants in the crime, 1+ierefore, on statement of Sukiu (P.W. 7) and Jaiptm P.W. 8), no conviction can be recorded against the appeitcnts. In the result, we are of the considered opinion •that the convlction recorded by the triat Court carmot be sustained. The proseeution faited to prove beyond tfaubt involvement of both the appellants in the crime i.e. murder of Poyami Somaru, therefore both the appeals we allowed. Convietlon recorded by the trial Court dhd sentence imposed by him on both the appettants are set aside ond it is directed that both the (ypellants be set at tiberty forthwith if not required in any other matter. Sd//- V.K.Shrivastava Judge Sd/- Dhirendra Mishra Judge