IGH COURT OF CHHA‘rTisGARi-i AT BiLASitéijé/J W Q_B_: Hombie Shri Dmrendra Mlsnra & Hon’ble Shn R‘N. Ghandrakar, .JJ. Crumma! Appeal No 131 712003 Naresn @ Pappu. S/o. Ramsharan. aged 24 years, RioBh-éinsbodkaiaj, OP. Dadhi‘ presently residing at M.LT., Koni, Bniaspur (CZGJ sate of Chhamsgarh Through Station House Officer, Poiic‘e Sia'iion — Navagam, Distnct Buaspur (C.G.) APPELLAN T (Ln Jai!) : Bespondent AND Crlmmal Appeal No.102912003 Lakhan @ LaaKhan Singn S/o. Jageshwar Singh aged S2 years. Resicieni of ewara, Khamhariya at Bhainsbod Kalam out post —- Darnl. Tah; Bemetara ‘ District D present — urg (C.G.) APPELLIKNT Sate of C‘nnamsgam Through Police Station — Nawagarh, District Durg (C.G.) (Criminai Aeals under Section 374(2) of the CLPLC.) pp Responaent Present: ' Snri N.K. Maria. Advocate With Smt. Kiran Jain, counse for the apperiant in Cr. A we. 131 7/2003. Si‘u‘i Harpreei Singh Ahiuwaiia, counsel for the appeiiant in Cr. A, No.1 029/2006. Shri Sandeep Yédav, Dy. Govt. Advocate for the State. ORAL JUDGMENT (1 2.07.201 U) Tne roirowrng juagment of me Court was deliverai by Dhirendra Mlshra, J. 1‘.“ Cnmrnar Appeal No.1‘31‘ii03 preferred by appellant‘Naresn @ Pappu and Criminal Appeal NJo.1029/03"‘preterred'by appellant Lakhan @ \ H J . i Laakhan $ingh are being disposed of by this common 1udgment as both the appeilants herein stand convicted and sentenced by the !eerned 3"“ Additiona! Sessions Judge (FTC) Bametara vide judgment dated 10‘" September, 2003 passed in Sessions Trial No‘52/03, as under: Appellant — Naresh i I l l i I I l l “Conviction I N ‘ Sentence” 7 I Under Section 302 of the lndian Life imprimnment and to pa)??? Penal bode line of Rs.25,000I-, in default 031 ayment of fine to undergo additional R.l. for 2 years. under section 450 of the IPC R.l for 3 years and to pay a tin‘a of Rs 5000I- in default of I payment of fine to further v . undergo R l for six months appellant a Lékhan Sinqh h ‘COHVICtIOHU v 77 V ~V "HEM" a H Ar‘r‘vsentencem“ "HT-:W m 1 Under Section 109/120 B read ' Life imprisonment and to pay a with Section 302 0f the IPC. fine of Rs 25 000l— in default o payment of fne to further! undergo R.l. for two years ‘ ' Under Section 109/120-B read R.l. for three years and to pay a with Section 450 ofthe IPC fine of Rs.5000/-. in default of! > v payment of fine to furthen' undergo R.l. for 6 months. V All the sentences have been directed to run co’ncurrentiy. t 2 Case of the prosecution in brief as proiected in tne impugned ‘ i l ‘ judgment is that there was a dispute between appellant Naresh and his wife Pushpa Lata and’for this reason, she used to reside‘Wlth her maternal grand mother, Geeta Bai. Naresh used to pressurize Pushpa Lata for getting Geeta Bai’s property recorded in his name. Co-accused Lakhan Singh had some old property related dispute with the family of the ueceased. For the aforesaid reasons; appeliant Lakhan, In criminal conspiracy with appellant Naresh, instigated Naresh to commit murder of Geeta Bai, whereupon on 17.12.2002 at about 8.a.m. Naresh entered into the house of Geeta 'Bai and assaulted her with battie axe and committed her murder. He threw the weapon of ofience in a tank. 1i ' ix; Ku. AiKa, sister-in-iaw of Naresh, Witnessed‘ the incident and when he iearnt about ner presence, he also tried to attack her, however, she saved herself by entering in a room. Thereafter, the appellant tied away from tne place of incident. ‘Shri Neeray Mehta with Smt. Kiran Jain, learned counsel for appellant Naresh argued that even if the eVidence of Alka, who claims to bethe eyewitness of the incident, is accepted as relianle, on the basis of. the evidence “available on record, the trial Court was .not justified in conVicting him under Section 302 of the IPC and the pffence, if any, v‘ Committed by appellant Naresh does not travel beyond Section 304 Part l or Part ll of'the IPC. From the evidence available on record, Le. ‘eVidence of Pushpalata @ Sanju (PW-5) the crime was planned by LaKnan and Naresh committed the offence at the behesr of Laa‘Khan 7‘‘. Singh without any Intention to commit murder. . Shri H..$. Ahluwalia, learned counsel appearing for appellant LaaKhan Singh vehemently argued that there is no evidence of criminal conspiracy between LaKhan Singh and Naresh, who committed the murder of Geeta Bai. Though, Pushpa Lata (PWe5) ciaims herseit to‘ be the witness of extra-judicial confession ailegedly made by co- acCused Naresh, deposed that her husband told her threedays before- the incident on 14.12.2002 that he has been given contract (supari) by . . g Reliance is paced on Kehar Sing/n Vs. State reported in A.I.R. gSC1 1988. " > ‘ 7. We have heardiearned counseltol' the pames andipefused the I'GCOI'GS § as also the impugned wagment. 8. The tnal Court, relying upon the ewdenée of Ku. Al§<a (PW-4) and ‘ ‘ i V w further on the evidence of Dr. Naresh Tlwar'I who has proved the postmortem report of Ex-Pi10. has'held that the deceased died due to snock due to hemorrhage and the death is homieidal in nature and aiso heid that the appeliant Naresh committed murder of the deceased on 17.12.2002 at 8am. inside the house of the deceased by the weapon ’ i ' ‘ , ofoffence-battieaxe. 9. After gomg tnrough the'record, i.e. postmortem report, evidence of Dr. i Naresh Tiwari as aiso the evidence of Ku. Ai'Ka (P rt in this regard is based on the record and the same does not cail for v W-4), we are of the ‘ ‘ 1 i opinion that the tinding of the triai'Cou eVidence avaiiaoie on ’ ; ‘ I interterence. 1 ‘ 10.So far as the submission of learned counset for the appellant, Shri E I Neeraj Mehta and Smt. Kiran onlyat the behest of co-accused LaKhan and, therefore, his conviction Jain that appellant Naresh had no mit murder of Geeta Bai and he committed the offence lntentiOH t0 60m under Section 302 of the lPC is unjustified; is cOncerned. we are unabie to accept this argument as it has been proved house carrying battieaxe and beyond reasonabte l " doubt that appellant Naresh used'to beat the deceased in past and on - the date or incident aiso he camento her t Hy ,L‘ a” assauited her' brutally on her vital pan - neck, resultlng in her instantaneous death. Theretore, we are of the considered opinion that conVIction of appellant Naresh by the trial Court is strictly based on the *EVidence aVauable 0n record. 11. Now, the question for our consideration is - whether the triai Court was. justitied in convicting appeiiant LaKhanv‘with the aid of Section 1091120—8 under Sections 302 and 450 of theiPC for committing the murder of the deceased inside her house? 7/) 12. The triai Court reiying upon the evidence of Pushpa Lata (PW-S)’ has held that there was conspiracy between both the appellants for committing murder of Geeta Bai. On the basis of her evidence, it has " been held that Naresh made extra judicial confession 2-4 days prior to the incident before his wite Pushpa Lata, wherein he has stated that he was given contract by appellantlLaKhan for committing murder of her ‘ maternal grand mother and after disclosing the above tact he left the house He also told her that he had purchased agricultural land from LaKhan and he was gorng for registration of the same and thereafter he did not return. On 17.12.2002 her grand mother was murdered 13 Pushpa Lata (PW-5) in paragraph .3 of her cross-examinati‘én has deposed that 2-4 days before the incident Naresh came in the night in ‘ / I 3 an. inebriated condition and told her that he had a discussion With accused LaKhan in the village Navagarh and inthat discussion, Lakhan engaged him for committing murder of her maternal‘ grand mother. On the very nextmoming, i.e. on 14.12.2002, he left the house stating that he is doing to get the agricultural land cf LaKhan registered and thereafter on 17 122002 her Nanni was murdered: She has further /‘\ \ \. d that sne intormed hér‘ mother about this, however, she old not State take it seriouSIy mmauon she has been contronted With the mary statement o? EX—U/z In wmcn mere is omlsslon regarding any contract bemg given, by La‘K'nan to Naresn tor COmmMIng mUfder OT bEEta Bal However she has stated that she had tmd tms tact to the police anu that she cannot exptam as to why tms ts n 14. in CFOSS-exa ot mentioned tn ‘ner diary ' statement. The omtsston has been proved by ChumuK Lat (PW-9), e who has categoricaltystated that Pushpa Lata did not ten tn her diary statement of Ex—DI2 that Pappu @ Naresh toid that Lakhan has given contract to murder her Nanni. o other evidence adduced ny tne prosecution except the eVIoence of PW~o regarding of Naresh aoout tne conspiracy ot two accused lnUS COHStdenng tne malenai 0mISSIOH In tne Clary we are ot tne optnton that there ts no eVIdence of conspiracy oetween the accused persons. ' r Section 313 16.From perusai of thestatement of LaKhan recorded unoe of the Code of Criminal Procedure, we ftnd that the circumstances rPw-b) _ Head Constabl , 15 Learned_counsel tor the State sunmtts that there ts n extra judtctai contessron persons. statement of Pushpa Lata (PW-3) tn :x-utz £ regardtng conspiracy based on the evidence of PW-5 has not been put to appettant LaKhan and no question has been put to Lakhan that he engaged Naresh to commit murder of Geeta Bat. 17 in the matter or may atngh (supra) whtie conSIdertng the object 'of examination of accused under Section $1 Procedure; it ts neid that object of examination ts to give tne accused 3 ot bode ot criminal an opportunity to explain the case made against him. This statement can be taken into consideraticn in judging his innocence or guiit - The word generally in sub-seetion (1)(b) means that the question should relate to the whole case generally and should also be limited to any particular parts of it A convuction based on the accuseds failure to explain what he was never asked to explain is bad in law. x 18.ln the matter of State of Paltan Mallah (supra) also, incriminating "J i circumstance sought to be proved against the accused persons, is the extra-judicial confesswn alleged to have been made by the ninth accused Paltan Mailah to PW-105 Satyaprakash Nishad wherein he named A-1, A-2, A-5 and A—6 as persons who had given him moneygo murder Shankar guha Niyogi Hon ble supreme Court has held that under Section 3O of the EVidence Act the extra-Judicial confessmn made by a co—accused could be admitted in eVidence oniy as a corroborative piece of evidence. In the absence of any substantive / evidence against these accused persons, the extra-judicial confession allegedly made by the ninth accused loses its significance and there cannot be any conviction. 19. in Sudhir Shantilal Mehta-(supra) while dealingwiththe ingredients of criminal conspiracy under Section 120-A of IPC, it has been held that it £ is essential to establish meeting of the minds to establish criminal conspiracy and mere KnoWledge or discussion would not be sufficient to constitute the offence. 20. ln Baldev Singh (supra) also similar views has been reiterated in paragraph 171 of the judgment. ' 22. . ,ln Ke‘nar Singh (supra) while considering the relevancy of evidence of conspiracy in View of Section 10 of the Evidence Act, it has been held 'In paragraph 44 that when the Court is satisfied that there is reasonante ground to beiieve that two or more persons have conspired together to commit an offence there shoutd be a prtma facie‘ evidence that a person was at party to the conspiracy before his acts can be used against his co-conspirators. Once such a reasonable ground exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intentton was others not oniy tor the purpose of proving the exustenoe ot the conspiracy but aiso for provmg that the other person was a party to it. in the instant case, we have aiready observed in the preceding paragraphs that the evidence of conspiracy oi'PW-S does not inspire contio‘ence and t’here‘is materia‘t omission ‘in her diary statement ot‘ Ex.- D/2 with respect to the-Confession of appetiant N‘aresh that he was engagedvby appeltant Lakhan for committing murder‘of Geeta Bai. We ‘ also observed that there is no other corroborative evidence except the aiieged confession of the co-accused invoiving appellant LaKhan as entertained ls relevant against the conspirator. a ”\ So far as the argument of learned counsei for the State that for the appeiiants, disclosure statement of Naresh (Ex-P/5) regarding conspiracy is also admissible under Section ’ 10Vof the Evidence Act, is concerned, the above argument has no force as it GOmeS into piay Omy When the prosecution aoduoee prlma faCle evidence that the perSon was patty to such conspiracy before his acts purpose of conspiracy of the two 23. can be used. Even otherwise, under Section 27 of the Ewdence Act‘ only discovery of the fact on information of the accused is admissible and rest of the incriminating content disclosure statement is inadmissible. 4 On the basis of the aforesaid analysis, relying upon the law laid down bv the Hon ble Supreme Court in the aforesaid iudgments /we are of the opinion that the prosecution has miserably failed to establish criminal conspiracy between appellant Naresh and appellant LaKhan/for i ‘ \ / A ' a ommitting the murder of Geeta Bai and the trial Court was not iustified' to convict Lakhan under Section 302 and under Section 452 With the aid of Section 109/1208 of the IPC. 25 Thus, the appeal preferred by appellant Lakhan @ Laakhan Singh is allowed. Conviction of the appellant under Sections 10911 20 B read with Section 302 and under Section 109/120-3 read with Section 450 of the IPC and sentence imposed thereunder are set aside. He is on bail, , l therefore, his bail bonds are discharged and he need not surrender. I / 26 So far as the appeal preferred by appellant Naresh @ Pappu is concerned the same is dismissed by confirming the iudgment and’ order of sentence of the learned trial Court. , Sd/- Dhfrendra Mishra 1 a ‘l Sdl- N Chandrakag l ‘ "i7“ 7,, t. 7 or M's J , Judge 2 ‘R‘