^'; XII-188/(JaiI) C.J.P.R.—5,000-V-8i c-^ CF0000058691 ^- -pJ> z APPEAL OF PRISONER No.- ^7. Father's name —^^^^^^ JT^S,—,_^ . < J(^ —. Name —^c^^T-^^-lffe -Age —- ^•/^. '~5J7?7~»:y^^/7y Scntenced to-^^^-^^^on —^^^^ Under section -^^-^^-^^- by ^^^^^ ^^ -^^L ^ci?S^%>%^ ^T^f~<re//^^/^r:^'SA^JCv^ €f^«05y/ ••..• •^{•Y....^ ^q'^o.;, |^|l'^ t is explained to the prisoner that if he states or wishes t6 he represented by a Tegal practitioner the Appelate Court will not prpceed with the base for seyen days unless the legal practitioner appears. If the legal practilioner does not appear with in seven days he may not be heard at all Ifthe prisoner states that he does not wish to be represented by legal practitioner the court may proceed at once with the casc and wilj not bc obliged to give a hearing to any legal practitioncr who sfaould appcar. 2 3 4 Datc of Appiication for copy ofJudgement—- <S3/3^3. Date ofwl-ich copy received ——- Date on wbich Appea! ?ent —————^:^-Lt-'-=^L-^—- Whether thc prisoner wishes to be represented or not - Yes/No. ^/^^ •^' No.——^—^—— - -.—— —— Name- Cominued in--—^^7—--^^,^————Jail No.-—^'^a- ----'.. —————dated- '^yL^^ ^r^^--^/^^ ~tJ7^7g\i^:V'~ .^L--^ -m=- Forwardcd to the C:?^E; JUDICIAL MAGISTRATE —'^^, ; ^- to .gather with a copy ofjudgement or ordcr passed in the case for favour of transmission to the proper Appilliate Court. ^.^^^%r Superinie.ndcnL-Cehtral/ Distt'7 Sub-JaiJ,,. ^^,, :I^L^f)^r^ctipt m C. J. M.'S Office ofrecordto accompany- :^?%'-:^.^'^F?'0 P^ ^-PPeal °0^e Appcliate^Court. —-—---.^--^^^^,..^— <'f>l:^@-F^rT3$^A^^^.T ^L.U'y^-y^^1- ^-4 ^ l^~""'"^^e,^<'^ ^^"""^LrJ)^^^, ~~T^y. C..J.:N^®Nt:rat1§i^P3 ForwarJcd to thc Datc of receipt in Appliate Court- (P.T.O.) ^.M.' ^e ^. "-^•-a BIBHUTI PRASAD Digitally signed by BIBHUTI PRASAD Date: 2025.02.07 11:57:23 +0530 HIGH COURT OF CHHATTI8GARH AT BILASPUR Cr. Aooeal No. 824/1993 A<^^ Brijmohan Cheekj^Miikund Clieek ,.>v'f'< \6 Vs. State of Madhya Pradesh (aow Chli^ti«®arh) JUDGMENT FOR CONSIDERATION Sd/- Dilip Raosaheb Deshmukh Judge Hon^ble 8hri rakhruddln. Actiiw Chief Justlce Sd/- Ag. Chief Justice Postfor ^ -10-2005 Sd/- Fakhruddin Judge —f ll—k HIGH CQURT^IF CHHATTI8GARH AT BILASPUR Cr. Appeal No.824/1993 hc^f^ Brijniohaa Cheekj^Makund Cheek Vs.^*^>t^ ^, /l State of Madhya Pradesh (now Chhattisgarh) CORAM: - HON'BLB SHRI FAKHRUDDIN.ACTING CHIBF JUSTICB & HON'BLB 8HRI DILIP RAOSAHBB DBSHMUKH, J. PRESENT: - Shri H,P. Agrawal, Counsel for fh.e appellant. Shri G,K, Beriwal, Deputy Advocate General for the State. JUDGMENT iDeUvercdonlg -10-2005) Per Dilip Raosaheb Deshmukh, J. 1, This appeal is directed agahast the Judgment dated 23-03-1993 deUvered by Additional Sessions Judge, Jashpur N^ar, District-Raigarh in Sessions Cas&^No.J^9Z1992 whereby fhe appellaat was convicted under Section-302 of I.P.C, for conmiittuig niurder of his wife Mst Khaid Bai and was sentenced to undergo imprisonment for life. 2. It is not disputed that ftie deceased Mst. Khaid Bai was the wife and Bodhan Raoi PW-3 is fhe son ofthe appeUaat 3, Briefly stated fhe prosecution stoiy is that on 03-05-1992, fhe appeUant along wifh Mst Khaui Bai aad his two niiaor daughters BudTimaiii aad Maaiyaro was going to pluck L vegetables froia the forest On way, Mst. Khairi Bai told ffae appeUaat fhat she would many anofher person, This aanoyed fhe appellaat to such an extent fhat he assaulted Mst. Khairi Bai by a sharp edged Taagia on fhe left side of Head near ftie ear lobiile. Mst Khairi Bai succumbed to fhe mjuiy. Budhmaai came to fhe house aad mformed Bodhaa Ram. PW-3 about fhe iacident. Bodhaa Ram PW-3 reached the place of occurrcnce and brought fhe iajiired Mst. Khairi Bai home. On beiag asked by Ghaasai Ram PW-1, Rupa PW- 2 aad Ram Prasad PW-4, fhe appeUaat made aa extra judicial confession fhat he had kiUed Mst Khairi Bai siace she waated to many aaofher person. Bodhaa Rain PW-3 lodged fhe F,I,R. Ex.P-5 ia Police Station-Kangabel situated 25 kilonieters finoni the place of occiirrcnce ie. ViUage- Nonapaxd, Dr, Y.K, Toppo PW-5 who conducted tiie postmortem examiaation on Mst. Khairi Bai found an iacised wound over left side ofhead horizontal ia sitiiation extending from upper part of the left ear lobule towards fhe left eye 1 Va a x 1 Ys a x 1/2W on ffate left teiaporal aad splenoid bone along wifh left parietal bone having got fractured, The wound was clotted with blackish brown blood, Therc was a depressed fractiirc on the left teinporal splenoid aad lefib parietal bone, Interaal haemorrhage of bram was present Dr, Toppo opmed fhat fhe death was due to shock aad caused by mtemal haemmorh^e ofbrain rcsidtmg from mcised wound over left side of fhe head withia 24 to 36 hours of examiaation aad was homicidal ni nature, One Taagia left by fhe appellaat was seized from Rupa PW-2. After completion ofiavestigation, fhe appeUantwas prosecuted under Section- 302 of ftie I.P,C. for conunittiag inurder of his wife Mst. Khaui Bai. 4. The appellant abjured fhe guilt, pleaded imiocence and led no evidence ia defence, The trial Judge rclied upon tiie evidence ofGhaasai Ram PW-1, Rupa PW-2 aiid Ram Prasad PW-4 rclating to extra judicial confession of the appeUant, convicted the appeUan.t under Section-302 of I.P,C. and awarded the sentence as aforesaid. 5, Leamed counsel for fhe appellaat has assaUed ftie conviction of fhe appeUan.t on fhe ground fhat there is no legal aad reUable evidence on record for proving the guilt of fhe appeUaat iinder Section-302 of fhe I.P.C. So far as fhe evidence ofGhaasai Ram PW~1, Rupa PW-2 aad Ram Prasad PW-4 relatiiig to extra Judicial confession niade by fhe appellaiit is concenied, it shows that it was not voluntaiy and was made by the appeUaat on beiag scolded by fhe villagers, The evidence rclating to extra judicial confession could not fherefore be reUed on. Learaed coiinsel has placed reliaace on Jwila aUas JEcimdcis Vs. Stdte of MddhMa Pradesh reuorted in 2000 (l) M.P. Hi^i Court Today, 318 for above proposition. The weapon of oflTence was seized, not from fhe appeUaat but from Rupa PW-2, There was no evidence relating fo presence of humaa blood either on the clothes of the appeUaat or on the weapon of offence alleged to have been seized from Rupa PW-2. Eye-witnesses Maniyaro aged 10 years and Budhmaoi aged 6 yeara who were wifh the deceased at the tune of occurrence were not exaimned by fhe prosecution for which aa adverse iaference ought to have been drawn. Even fhe F,I,R. Ex.P-3 had not been proved siace Bodhaa Ram PW-3 the iafonnant had denied to have laade the sacae. Thus, there was no evidence to connect fhe appellaat wifh. the niurder of Mst, Khaui Bai. On fhe ofher haad, the Deputy Advocate General for the State has argued in. support of the judgmLent of fhe Trial Court. 6. We have considered fhe rival contentions aad have also perused the record, So far as fhe evidence of Ghansai Ram PW-1, Rupa PW-2 and Ram Prasad PW-4 rclating to extra judicial confession made by the appellant is concenied, it has to be tested on the touchstone of fhe principles laid down by the Hon'ble Apex Court in fhe Case of Gura Sif^lh Vs* State of Retfathem. reported in (2001)-2-8CC-20S whereia it was held by fhe Apex Court fhat if extra judicial confession was niade voluntarily aad not obtaiaed by coercion, iaducement or promise of favour it could form fhe sole basis of conviction and corroboration would be rcquircd only by way ofabiindaat caution. 7. We have scaxuied the prosecution evidence ia the l^ht of above principle, Ghaasai Ram PW-1, Rupa PW-2 and Ram Prasad PW-4 have deposed fhat on beuig asked the appellant had inade an extra judicial confession that siace his wife Khaid Bai waated to many another person, he killed her. Their testioiony is consistent, trustworfhy aad wholly unrebutted in cross-examiaation. It has emerged m cross- exaaiiaation of Ram Prasad PW-4 fhat on beiag scoMed fhe appellant had wifhout hesitation stated that he kiUed Khaid Bai because she waated to re-niany. There is not even an iota of evidence which would be suggestive of aay undue uifluence or proinise of favour or aay fhreat given to the appeUaat for inakiag the confession, Thus, the nierc fact fhat fhe viUagers had scoldiagly asked fhe appeUaiit as to why did he kiU Mst, Khabi Bai would not render fheir testbnony unworthy of credit, The case of Jwsla crftas RasnAaB Vs. State ofSSadhya. Pradesh reported in 2000 (1) M.P. Hi^i Court Today, 318 cited by learaed counsel for fhe appellaat would therefore be ofno assistaace to the appeUaat. 8, Bodhaa Ram PW-3 testified fhat the appellaat along with his inother Khairi Bai aad sisters had proceeded to Koiaar for pluckiag vegetables aad Budhmaai had soon after returaed to iiifonii fhat his inofher was lyiag unconscious, It also clearly shows that fhe appeUaat was wifh Mst. Khairi Bai at fhe tixne of occurrence, The F.I.R. lodged by Bodhaa Ram. PW-3 has been proved by Sub-Inspector A.K. Khaa FW-7 which implicates the appeUaat m fhe murder of Mst. Khami Bai. We have described the injuries found by Dr. Toppo PW- 5 on fhe deceased Mst, Khaui Bai during postniorteia exajnination aad fhe niedical opiaion ia para-3 (Supra). It clearly estabUshes fhat death of Mst. Khaid Bai was houdcidal in naturc. 9, Durmg argumerits, it was also contended by fhe learaed counsel for the appeUaat that fhe appeUan.t was drunk and had iaflicted the fatal blow on Mst, Khairi Bai by nieaiis ofa tangia upon grave aiid sudden provocation by Mst Khain Bai who exprcssed a desirc to niany aiiother person. In support of fhis learaed cozuisel for the appellant has placed reUance on Vlrsa Slnah Vs. Stcrtc of Puniab reported in A.I.R. 1958 Supreme Court -465, Vlctor (S), SMoo Vs. iState reported ia 1966-JLJ-S87 aiid Thajnfcachcin Vs. State of KereOa reported in A.I.R.-2005-8.C.W.-4577. However, ui fhe entire evidence led by the prosecution, we do not find that Mst, Khairi Bai had expressed a desire to reinany whfle she along wifh the appeUaat was goiag to pluck vegetables at fhe time of occurrence. We do not find aay such fact even m the statements of Budhmaoi aad Maaiyaro rccorded under Section-161 of Cr,P.C, Thus, fhe citations rcUed on do not apply to fhe facts of fhe present case and the arguments advaaced by the leamed counsel for the appeUaat caxtnot be sustaiaed, The appeUant has also not given aay explaaation ia his exaaiiaation under Section 313 of Cr.P,C. regarding the iajuiy sustaiaed by Mst Khaid Bai. No inotive has been ioiputed by fhe appeUant to Ghansai Ram P.W. 1, Rupa P.W. 2 and Ram Prasad P.W. 4 to inake aa atteinpt to falsely ioipUcate him. 10, On a careful consideration of the evidence adduced by fhe prosecution, we find fhat fhe evidence regarding fhe extra judicial confession made by the appeUaat before Ghaasai Ram P.W. 1, Rupa P.W. 2 aad Ram Prasad P.W. 4 is consistent, wholly trustworthy aad was rightiy relied on by the leamed tnal Judge for convictmg the appellaiit uiider section 302 of IPC. It was also argued by fhe leamed counsel for the appeUaat on fhe basis of narrations ia the F.I.R. Ex.P-3 fhat fhe appellant was heavUy drunk at fhe time of occurrence aiid was unable to understaad the consequences of his act, However, alfhough ia fhe F.I,R, Ex, P-3, the factum of the appeUant consumiag liquor at hoine before proceediiig to Koiaar with the deceased is mentioned yet fhere is no evidence on record to corroborate it, On the contrary during cross-exainiaation of Raoi Prasad P.W, 4 it has emerged fhat the appellaiit was not drunk at the time of makmg ftie extora judicial confession. Thus, the arguinents advaaced by fhe leamed counsel for fhe appellant cannot be accepted, -:\, 11. Haviag considered fhe prosecution evidence in its entirety, in our considercd opinion fhe weapon used by fhe appellant, the vital part of the deceased on which the fatal mjuiy was iaflicted aad fhe manner in which tihe sharp side of fhe Taiigia was struck on tiie vital part, leave no doubt that the appeUaat had intentionaUy committed inurder of Mst, Khaid Bai ia cold blood, Learaed counsel for the appeUarit placed reliance on Hemrai Vs. State of Bciniaiw. rcported m A.I.R.-S.C.W.-200S-188S while contendiag that non- exainuiation of iadependent eye-witaesses Budhniani and Maniyaro gives rise to aa adverse inference agaiast fhe prosecution aad creates a serious doubt upon fhe prosecution case. It is true fhat Budhniaai & Maaiyaro who were chUd witnesses were not exammed by the prosecution but fhat by itself woiild not be sufi&cient to discard fhe reUable evidence of Ghaasai Ram PW-1, Rupa PW-2 and Ram Prasad PW-4 relating to fhe extra judicial confession made by the appellanLt In case of Seeman vs. State By Insoector ofPoUce reported ia 200S A.I.R. 8CW 2705, fhe Apex Court has held fhat non-production by the prosecution of iadependent witaesses naiaed ia fhe F,I,R. by itselfcannot be a circiimstaace to discredit other reliable evidence led by fhe prosecution, 12. Learaed counsel for the appellant also placed reUance on Sufch lat Vs. State ofMeidhiia Pradesh reported in l998(2) Vidhi Bhaswar-257, KJIS.Nanavfiti Vs. State of Maharashtra reported ia A.I.R.-1962-Supregie Court-605 and iS?hiwu>t>a Buddcuooa Kolkar Vs. iState ofJCar»urtc*a and athers reported in Supreme Court case- 3005(C»imiual) 1993 in support of the ai^uments that fhe appeUant had caused fhe death of Mst Khaui Bai upon grave aad sudden provocation. However, ia the facts aad ciycuinstaaces of the case, fhere is nofhing on record to show that ftie appeUaat acted upon grave and sudden provocation. There is nothing on record to show fhat fhe deceased had whUe accompanyiag fhe appeUant to Komar for pluckiag vegetables had mentioned fhat she waated to re-xnany another person. No explaaation whatsoever has been offered by fhe appeUaat m his examination under section-313 of Cr.P.C, for the mjuries sustauied by Mst. Khairi Bai, Thus, fhe citations relied on do not come to the aid of fhe appeUant at aU. 13. Haviag tiius scaaned fhe evidence led by the prosecution in its entirely, we are of the considered opmion fhat fhe conviction of the appeUaat zinder Section 302 of IPC for coBimitting inurder of Mst. Khaid Bai aad the sentence awarded thereunder are weU founded. 14. In the rcsiilt, fhe appeal which has no substaace, fails aad is accordingly disiaissed. Sd/- Ag. Chief Justice Sd/- Dilip Raosaheb Deshmukh Judge Satish ^ XI-HC'78 <dw(<-<1iqirt<4, t»TH^<l<?,Roiyyx c^ft' e^i^ *tM<*>i miT[^ ^200 3TT^$T9?TR^Jcb ^fr3TT^$Ta»wp Gowri ^ 3T^?Ttra^(i^^6|<g) g^FcTT^ ^TltcT 3TI^$T Djvision Bench : Hon'ble Shri Fakhruddin. Aa.Q Hon'ble Shri Diiip Deshmukh. 10-11-2005 None appears for the Shri Akhii Mishra and S| for the State. it is noted that there are title and paragraph 1 of the ji 28-10-2005 in Cr.A.No.824/1993 Accordingiy. in the cause omitted ana' in piace of"@", woi aiso sessions case No. "139^ "139/1992" the sessions cas^ Necessary corrections are made| Corrected certified copy <^ of the same be also f<ywarded tc Sd/- Ag. Chief Justice cpi<tfo<fln +t!<i<Ql'^'fa<-(El ^Fjn-^i^ ^3ri^T3n^ST lj.& app^ilant. ^ri Ravindra Agrawal, Panei Lawyers some typographical errors in cause jipdgment delivered by this Court on I titie of tne judgment the word "@" is (ds "Son of' De read. in paragraph 1 f1992" is omitted and in piace of number be read as "179/1992". |and read byus. }f this judgment be suppiied and copy aiithe concerned. Sd/- Dilip Raosaheb Deshmukh Judge K' •^