m<mCOUK^O^CHHA'rTlSGARHATBILASFUR CriminalAppealNo.263/2005 APPELLANT Keyal Sahu VERSUS iikM RESPONDENT Statg of Chhattisgarh, POST FQR JUDGrMENTON 03 -1-2008 ll!:i Sd/- DhirendraMishra Judge !:t • v^;€. !;;ii '; ]ua , "•s. fe HIGHCOURTOFCHHATTISGARHATBILASPUR CrimlUal Appieal No. 263/2005 APPELLANT Keyal Sahu, S/o. Shn Nageshwar Sahu, a^ed about 21 years,R/o. Banjaripara, village Utai, P.S. Utai, District Durg (CG) VERSUS RESPONDENT State ofChhattisgarh, fhrough District Magistrate, District Durg fCCr)- Present; , . Shri Sanjay Ku. Agrawal, Advocate for the appellant. Smt. Madhunisha Singh, P^nel Lawyer, for the State, y. Dhirendra Mishra, J ^c^r JUDGMENT (Passed 6n0311/2008) This criminal appeal is directed against the judgtnent of conviction and order 6f sehtence dafed 9th March, 2005 passed in S.T. No. 168/2004 whereby leamed 2nd Additional Sessions Judge, Durg has convicted the appellantunder Section 304 Part IIof Indian Penal Code and sentenced him to undergo R.I. for 10 years. 2. Case ofthe prosecution, ih brief, is that on the basis of oral ihfbrmation given by the appellant hunself on 20t11 July, 2004 at about 23.50 lirs.RojnamchaSanhaNo. 896 of Ex. P-1A was registered in Police Station Utai; After reGording the Rojnamcha Sanha NQ. 898 and 899 of Ex. P-2A, Police Party proceeded for verification of the- information towards village DharLora Borsi, the place of occurrence at abouf 00.05 hrs on 21-7-2004 alongwiththe appellant. Since the offence was comnutted within fhe ferritQrial jurisdiction pf Pdliee Station Pulgaon, ;the irrvestigafibn was lian^ over to Station House OfBGer, Police Station Pulgaon. 3. During investigation, mgpest over the dead bcidy Qf Rakesh :'^3.:'.-:^' •".; '• . '.• .' ••:' • .••: ' ' • '. ••' ::' /'. •' : ':•.'" Kumar was prepaT^ in the presence of •witnesses yi^e Ex. P-3. On the memo 6f Ex. P-T of ttie accysed, the weEtpon of ofience btood stainfid chopperwaLS seized &6m j±te^@lace of ^cident yida ^ 'P-4. Merg intimayon of Ex< P-& anct Dehati NaEs&i ;bf Ex. P-9 were recorded in yiUags BQTSL anff'subsequeritly,^ B-16 was recorded on the feasis of the above docuiaents, Tlie ^dead body of decea.sed RakesK laun^ was sent fbr autopsy ^to M ••/'/°i VM. KS; V. Miitmw 1111. ©overmiientHospital, Durg on 21-7-2004 yide Ex. P-11 where Dr. S^ Pa.fiaga (PW. 6) conducted post mortem and gave his report of ^Ex;<P-a;4.^.::.-,' • ;:; : • : : : . ' ' ; . . ^ After investigation charge sheet was filed in the Court of ;Jujdieial Magistrate First Class, Dyrg who in fum committed the case to the Gourt of Sessrons'Judge, Durg and the saine was receiyed on transferfbrtrialbythe l^medAdditional Sessions Judge. 5. Di-iring trtal, prosecution examined 10 witnesses in all. Thereafter statement ofthe ac.CUsed was recorded in which he denied the evidence appearing agE^l^st him in the prosecutiqn case and pleaded innocenee and false implication. However, the trial Court convicted and sentenced the accused as mentioned in para 1 ofthe judgment. • 6. Leamed coynsel for the appellant submits that there is no eye- witness to the incident. Gonviction is based on the circumstantial evidence and extra judlcial confession made by the appeUantm the presence ofthe police. > 7. Referring to the statemerit of P.W. 3 Harish Chandra, brother of the deceased, it was contended by the leamed counsel for the appellant that he has been examined as the witness of extra judicial confession, hdwever frpm perusal of his statement, it woyld be evident that the alleged extra judieial cbnfession was made by the appellant whUe he. was in the custody of the police and he was proceeding in a police vehicle and in the presence of police. Referring to the deposition of P.W, 8 Brajram Sahu who is the witness of memorandum and seizure, it was argued that the weapon 6f offence was recpvered from an open place beside a public road therefore, simply pn the basis of recovery pf weapon of offence on the memorandum df accused appellaift, he cannot be connected with the, crune in questioia. Relying upon the judgment in the inatter ofSaniya Ram -V- State of CG1, it was submitted that extra judicial confession made in presenee 6f police is not admissible in the .^es |of law. Purther relying upon the jydgiB.eni in the matter of Nessir AIimsd, alnd anotUer -v- State of Bilia»2, it was a%ued that where the isase fe. ''2004(2) COU 124 2AIR 2001 SC 2416 ;;.^^! •-•[^sfy^ fSS M ,,,.gg Ws^&' of the prpsecution is based on circumstantial evidence, the circunlstances may be so complete as fo be consistent only with the hypothesis of the guilt of the appellants. '. \ • • : , : • 8. On the other hand, leamed counsel for the State submitted that the investigation was sef into inotion on the basis of an inforrnation given by the appellant hifflself in the police station vide Rojnatlicha Sahna of Ex. P-IA. The dead body of the deceased was discovered after the police proceeded for viUage Borsi after receivmg the information from the accused himself. The weapon of qffence Chopper was seized pn the ^iemorandum of the appellant. The -f¥. .... .. . - _ '.'- _-. appellant has ma.de extra judieial confession before Harish Chandra. The aforesaid circumstances leave no robm for any doubt regarding involvement oftheappellant in the crime in question. 9. I have heard leamed counsel for the parties. I have perused the record ofthe trial Courf as weU as the iinpygnedjudgment. 10. Hoinicidal death Qf the deceased Rakesh Kumar is not in dispute. Even: otherwise, from the post mortein report of E^x. P-14, which has been proved by Dr. S.K. Patinga (P.W. 6), who has found one incised wound over left side of the neck in size of 17 x7 cm bone deep, skin, musGle, blood vessel, carotid artery, extetnal jugular and internal jugular partially cut, second mcised wound on the front side of'the neck on lower interior part in size of4 x 2 cm (trachea pardal reseGtiQn) and has opined that the eause of death is shock due to excessive bleeding as a result of incised wound present in the neck and the same was homicidal in nature, the homicidal death of the deceased is established. 11. Case ofthe proseGUtion is that the deceased owed Rs. 5000/- to the appellant andwhenhe (iemanded the above siim, the deceased ^. ;.'-. --' •'•..';'. •'•.:... ...•••.:' :• • . '. .. ..'•.. . '.' •' abused him. as a result pfwhlSh he plarined his murder and for this purpose he'went in his Laona armed with chopper along with the deceased Rakesh. ;0n way, the deceased consumed'liquor thereafter he tookhun towards Borsi.andcomnuttedhisTrrurdfirbyiinfltetingS- 4 blows. • ' . •?.. . : I '. ; 1 1 1 I: 1 i:l: 1 I.. 1 i|!» 'Ui; sm BI !ii::=lS| "«• 12. ^Thetnal Courfhas based the convictkin offhe appellant onthe Ibllowing circutnstarices:- 1. 11. Ul. That; Rojnanicha^Sanha of Ex. P-1A was recorded on the basis of the information given by the appellant which has been proved by the Head Constable Nand Kumar Dubey (P.W. 1); That, the police party reached to the place of incident and dlscovered the dead body as also the knife which was lying at some distance ofthe)dead body; and '?'.!'•- ~ That, the appellant made extrajudicial confession before HarishChandra(P.W. 3). 13. P.W. I Naiid Kumar Dubey, Head Constable hasproved the docuinent of Ex. P-1A Rojnamcha Sanha and has stated that the appellant came to the police station at 23.50 hrs and gave information that he had dealings with the deceased who had borrowed Rs. 5000/- on the lastThursdaywithapronusetoretum the same in the evening. When he asked for the money on 20-7-2004 in the evening he abused him with tKe filthy language and, therefore, he resolved to kill him. After makihg confession which is inadmissible in evidence; he also disclosed that the dead body of Rakesh is lying beside a road and he has thrown the kriife nearby. He has further stated that after recording the mfoFmation, he proceeded with the appellant to the place of incident for verification of the information and retumed to fhe police station at 4.00 a.m. In his cross- examination, he has denied the suggestion that the appellant did not give any m.formation ofEx.P-1. 14. P.W. 4 G.D. Soni, Station House Officer of Police Station Utai has also sfated that on the^basis of information given by the appeUant, he telephonically informed his superior officers and Station House OfBcer, Pulgaon and thereafter proceeded for the pIaGe of incident to verify fhe iiaformation and'found the dead body at the place mentkined by the appellant as also the weapon 6f offence-wfaichi waslying at a distance bf2-3.aneters. 'fc- ' ' • - : ; : • . 15. P.W. 2TeksmghhasdeposedthatataboUtl.QOa.nt.1^pQliGej tpok hiin to Borsipatha where murder had taken place. Ttie Sf:s^/&&t^ 1iM »!!I •€ :]l!ll: :i ^•/ I. :\ <i ii: ;,J5vas mi^e cu^dy of Utai po& the deceased Harish 'IBt^&SSxa. had also gong there. He had seen the dead body which had siiiijyiyf on neck and^^A waslying there. On ati|eT|^gatioit fty the pplic^, the appellant had given memorandum of Ex. P-7 and knife was seized vide Ex. P-4. 16. P.W. 3 Harish Chandta, younger brother of the deceased has deposed that in the night of the incident, police took hiffl to the plaee bf incident where he Saw the dead body of his bfQther. Teksingh also went with him. Pulgaon police was called by Utai poliee to the place of incident. They asked the gppellant as to why he murdered whereupon he replied that he'Had borrowed Rs. 5,000/- from him and did not return, therefore, he murdered him. At the time of makihg confession, he was sitting in the police vehicle and at that time, Teksingh and police personnel were alsb present there. 17. P.W. 8 Brajram Sahu, resident oPvillage Borsi has also stated lihat he went to the place 'of'incident in a police vehicle. Qn being asked by the Statipn House |0fficer, the appellant was qutestiohed about the weapori and on the basis of fhe infoFmafion given by Uim, the weapon was seized 'videEx. P-4 whieh bears his sigriatuip. In the cross-examination; he has admitted that ftie place from where the weapon wasseizedis an openplaee. ]18. P.W^. 9 R.y.S. Panhar, fhe inyestigayng ofGcer was posted ias ^tation House QfEcer anPolice Station, Pulgaon at the relevant time. He I'lasalso stated tKait he received the infbrmation from P.Wl 4 G.D. Soni and, reeorded Dehati Nalishi vide Ex. P-9 on the basis pf the infbrmation giveri by Harish Chandra He has further stated] that he '• "\ •':• -.''.'..: ^•' •'.'-.•' ': . •• . "-• .- .—'.•.—,—'-'; -....' -'L '.:-.":,;:: .; reeorded meaioi-anduHi statement of the Ex. P-7 and oii the !basis of that, he affected seizure of the weapon vide Ex. P-i4. The nieinorandumwasrecordedon 21-7-2004 at 7.00 a.m. andlon the basisofthat, weapon wasseizedthereafter. 19. From theevidence available on record, the KI.R.i about eommission of offence was-giveri by tUe acoused himself which was ' recorded in-RQJnamcha Sanha b{ Ex:. P-1A. Question is the extent of r(; - .; :! ^ : •' • •• ! ,... admissibility of the information giveh by the accused person aboii.it te- the commission ofcrime in view ofSection 25 of the Evidence Act. :aa ^^S'fV ^IT-SffSSsSSSSSS^^S^'^SSi 20. In the matter ofBlieru SineU—v-State of Ralasithan3, it has been held thatwhere E.I.R. is giyen by aficused himself to a pQlice officer and aniounts to a confessional stateinent, proof of the confession is prohibited by S^ction 25 ofthe.Evidence Act. No part of the confessional stateinent eari be proved or received in evidence, except to the extent it is permifted by Section 27 of the Evidence Act. The FIR recorded under Section 154 is not a substantive piece of evidence. It may be used to ccttroborate the informant underSection 157 of the Evidence Act or to contradict him under Section 145 of the EvidenceAct in case the mformantappears as awitness atthe ta-ial. Where the accused himself lodges|bhe FIR, the fact of his giving the information to the police is admissible against him as evidence of his conduct under Sectioh 8 of the Evidence Act and to the extent it is non-confessional ih nature, it would also be relevant under Section 21 6f the Evidehce Acf but the confessional part of the FIR by the aecused t6 the poliee officer cannot be used at all against him in view of the ban bf Seetion 25 of the Evidence Act. It has been further held in para 19 of the judgaient that FIR is not wholly confessional statement, but only that part of it is admissible in evidence which does not amount to a confession and is not hit by fhe proyision of Section 25 of the Evidence Act. The relationship of the appellant with the deceased; the motive for commission of the crime are non- confessional in nature and can be used against the appellant under SectionS ofthe @YideneeAct. TUe seizure of weaponofoffence is also adnussible. 21. In the instant ease, the information giveri by the appellant was duly recorded vide EX. P-1A, the police prdceeded for the place of occurrence and discovered the dead body at the place mentioned by the appellant, even the knife was also found there as informed. The motive for commission of offence haaalso been duly proved by P.W. 1 ..^s. . • :'.." Nand Kumar Dubey. Apart from the above evidence, brother of the deceased Harish .Chandi-a (P.W;. 3) is a witness of-extra judicial confession. Though the eonfession is fflade by the ap_pellant wtlile he was traveling in a police-vehiele in the presence ofpolice persori'nel but this witness has categorically +denied that on being asked fey fhe Investigating Qfficer, the app^llant made confession; on the cbtlti^ 9994)2SCC467 vsi. :/^^ tsB »n ••a^&irs fsg'^ •B iN^fci^ ^s^y m , he has stated tRat he leamt when he asked the appellant and he cdnfessed having murdered his brother Rakesh as he did not return Rs. 5000/- which he had borrowed from hiih. The above circumstances established^ by the prosecution beyond reaspnable dpubt, establish the guilt of the appellant beyond all reasonable doubt.It is inconsistent with his innocenee and leads to only irresistible inference that the appellaht alone was responsible for causing death of the deceasgtt. 22. The trial Court even after reaching fo the conclusion that the appellant was responsible for ea^sing death of the deceased Rakesh, ,^ • _^ • . ^'.;... :..: has acquitted the appellant fr6ih the charge under Section 302 of I.P.C. and has conviGted hiiti under Section 304 Part II of I.P.C. However, since the State has not eome up in appeal against the acquittal of the apgellant under Section 302 of T.P.C. and the instant appeal is at the instance of the appellant against his GQnvietioh under Section 304 Part II of I.P.C., this Court is of the considered 6pini6n that the appeal has no force aiid the same deserves to be dismissed and it is aiccordingly dismissed. DhirendraKiisfcfa Judge • <a( ^ fe^