T5^ •^ll^lld^, ^T-n^'IC, i"G|Cll<Hy< tTT^^TT ^tTTc^ ^ 200 3TI^?T q^raFT (^c<i^<s<^) w^T^rR-ii* cCT3TT^T5b^ich ^RTTW^N^T^T HIGH COURT OFCHAATTISGARH. BILASPUR CRIMINAL APPEAl DIVISIONBENCH APPELLANT HON'BAE SHRI L.C. BHADOO. fls HON»BI|,ESHM DHIRENDRA MISHRA, JJ RESPONDENT Present Mr. Abhay Tiwari, c< Mr. AshivSh Shukla the State/respondei ORAL J Per L.C. Bhadoo, J This appeal is directed a| and order of sentence dated 30t Sessions Judge, Raigarh (MJ whereby the learned Additionalj accused/appellant guilty und^ sentenced him to undergo impr| <=hN[<n41T1 ^l I^KrlT ^T fyff <f^^<l< ^3Tf^T3TI^5T N0. 1776 OF 2000 Etwaram, S/o Matwar Uraon, Aged 45 years, Occupation - Agriculture, R/o Khedama, P.S. Lailunga, District Raigarh. rsus State of Madhya Pradesh, Through : P.S.-Lailunga, District Lailunga. >unsel for the accused/appellant. Additional Public Prosecutor for .t. (JDGMENT (17th J^ily 2007) ^ainst the judgment of conviction May 2000 passed by II Additional \.) in Sessions Trial No. 19/99 Sessions Judge after holding the ^r Section 302/34 of the IPC, ^sonment for life and to pay a fine P.T.O. XI-HC-78 3^T ^HId^l, ^Tn^JI(o, Rlcni^y ITTR^TT^tTlcb ^ 200 3Tli[?T1^W (lic<t^<s<^) 3^ToF)Tf^TW ^TW^T^TW ?^W^NCT^T cbNld41^ ^HdT ^ f^t <Rl^K ^ ^rf^T 3^ST of Rs. 500/-, in default of paym|e months' R.I. Case of the prosecution| Dhansingh (since deceased) wa^ pm. in the evening Mangalsai| Uraon, the present accused/at Dhansingh and asked Dhansing| and we will also consume liquo also standing outside the housej, accompany them but Mangals| Dhansingh with them. In th| |Dhahsingh and Rameshwar [Mangal. After consuming liquoi [house. Deceased Dhansingh s| |Adhnibai (PW-2), mother of. a.c<\ [Mangalsai and Etwa about Dhar] jDhansingh had already come a |the accused persons left the plac [Dhansingh was found in the laround his neck. Thereafter, jSonuram (PW-7) and they were |Sonuram (Pw-7) both of them jthey have committed a mistake |Merg intimation (Ex.P/1) was nt of fine to further undergo two in brief is that on 21.6.1998 at his residence. At about 7-8 (absconded accused) and Etwa )pellant, came to the house of <<let us go to forest to bring wood :??. At that time Rameshwar was therefore, Dhansingh refused to ai and Etwa insisted and took night the accused persons, co|nsumed liquor in the house of Rameshwar (PW-1) left for his fcayed back there. In the night ^used Dhansingh, enquired from Isingh, on which they replied that llittle earlier and after some time On the next day, dead body of t^ater of dam, there was a towel the accused persons went to ^arching for Sarpanch. In front of m^.de extra judicial confession that as they have killed one person. ^iven by Adhnibai (PW-2) in the P.T.O. m XI-HC-78 3^ET r^iiqi^iq, Wil37T?, (^^1<-1^< ^l^^l sh^lich H^ 200 3TT^T ^5|ch (^cii^^) W^T ^)T f^TT^ c^TT3TT^T5h^i<=h ^TW^fN'^T^ chN?d41^ ^l^dT^te^'^^K ^ 3Tf^T 3TI^T police station on 23.6.1998 and Report (Ex.P/2) was registered.l (PW-11) left for the scene of o^. (Ex.P/8-A) to the Panchas un|: prepared the inquest (Ex.P/9-A)| J.P. Choudhaiy (PW-4), Patwari) Dead body was sent for postmort^ ;entre, Lailunga where Dr. S.| Ipostmortemon 23.6.1998 and [Ex.P/7, in which the doctor (\ [asphyxia by strangulation and it| |completion of investigation, the| ^ourt of Judicial Magistrate F|: Iturn committed the case to t] Iwhere learned Additional Sessid Itransfer for trial. |3. Prosecution in order to [accused persons examined 11| laccused was recorded under Secl |denied the material appearing levidence and stated that he is ^mplicated in the crime in que$ ^.bsconding since beginning, ^.gainst the present accused/app( based on that, First Information Sub Inspector Mulchand Tiwari ^urrence and after giving notice ler Section 175 of the Cr.P.C., on the dead body of Dhansingh. prepared the site plan (Ex.P/4). ?m examination to Primary Health ST. Upadhyaya (PW-5) conducted prepared the postmortem report >pined that cause of death was was homicidal in nature. After charge sheet was filed in the irst Class, Gharghoda, who in le Sessions Judge, Raigarh from >ns Judge received the case on .tablish the charge against the witnesses. Statement of the |ion 313 ofthe Cr.P.C. in which he [against him in the prosecution innocent and has been falsely |ion. As accused Mangalsai was :|ierefore, charges were framed (llant only. P.T.O. XI-HC-78 3^T ^l^ld^, ^Tfl^JI(o, fa^l<-l^< tTTR^TT^RT^ ^[ 200 3TI^?T<^R7 (yit^ct^T) ^TT^T ^F)T f^TTqF) TOTW^T^TW J. ^cTT^T ^cT W^T ^ 4. Learned Additional Sessio: the respective parties, c accused/appellant as aforementi 5. We have heard Mr. Abhay for the accused/appellants Additional Public Prosecutor for is Judge after hearing counsel for )nvicted and sentence the oned. |Tiwari, learned counsel appearing ar|id Mr. Ashish Shukla, learned |;he State/respondent. 6. In the instant case, there connect the accused/appellant prosecution has tried to circumstantial evidence. The d: prosecution are as follows: |is no ocular or direct evidence to jwith the crime in question. The estlablish its case based on the ircumstances relied upon by the (i) that the accit accused Man^ with them frojn the fateful nigt|i (ii) acculsed that the confession bef( circumst^nces 7. As far as the first 2) mother of the deceased, ha^ Rameshwar and Mangalsai came along with them. In the night ^N?<-l41<l Wraf ^ fe^t ^TCTT ^3Tf^T3TF^T ised/appellant Etwa along with ;alsai took deceased Dhansingh the residence of Dhansingh in .t; and persons made extra judicial re PW-7 Sonuram. is concerned, Adhnibai (PW- ^ stated that on the fateful day |to her house and took Dhansingh ptwa and Mangalsai came to her P.T.O. [ XI-HC-78 T5^ ^11-41^'M, ^•H^Ko, (sf<ni^l^< ^I*«*1I^HT^ ^200 311^1 ^sich ('ic<^s<^T) ^y^^T °F)T f^rN cCT'3Tf^T$h^ich J ^RTTW HfgcT 3TI^T house and demanded water, the tumbler. When she enquired fro^n them about her son Dhansingh, they said that <(he is coming9'. I|n paragraph 4 of her evidence she has stated that on enquiry Man^ coming but he did not come. In| that relation between Dhansin^ inimical. This witness has notl the present accused/appellant| Rasmati, wife of Etwa, has al^ came to her house and took herl <^l^[crt4)^ HTTOt ^ fe^t <Rl^R ^3Tf^T3TI^T •efore, she gave water to them in a ^alsai informed her that her son is cross-examination she has stated ;h, Mangalsai and Etwa were not stated that her son accompanied She has stated that her son Dhansingh went along with R^meshwar and Mangalsai. PW-3 >o stated that accused Mangalsai husband. She has not stated that her husband went along with ^resent accused/appellant. PW-1 Rameshwar who is said to hafe been accompanied by accused persons Etwa, Mangalsai and de|ceased Dhansingh, has stated that in the fateful night he alongj consumed liquor at the residen^ left for his residence. Dhan4 Mangalsai. He has also no|l accused/appellant Etwa when t| with Mangalsai and Dhansingh [^e of Mangalsai and thereafter, he |ingh stayed at the residence of stated about the presence of |iey consumed liquor at the house of Mangalsai. Therefore, in viev^ of above evidence, it is clear that the prosecution has not been ^ble to establish that in the first instance Dhansingh left wifh I^angalsai and Etwa when he was alive. Even as per the evidence |of Rameshwar when he along with deceased Dhansingh and his bij-other-in-law Mangalsai consumed P.T.O. XI-HC-78 /^. 3-5^ ^II^K^I^, ^Tfl^f'KS, l^ldl'y^ ^l+ldl ^ltfTc^ ^[200 3TT^Tq^? (^cii^q^) 3-n^T oF)T f^TRK c^TT3TR?T5h^ll4) ^cTTW^T^T^T € liquor at the residence of ]\4angal Therefore, there is no evidence the accused/appellant Etwa Dhansingh while he was alive. perspns 8. As far as the second accused/appellant along with| confessiori before PW--7 Sonuranl has stated that accused/appell^ his shop and they were en^ Jambahar. This witness has examined by the A.G.P. In thej when he asked the accused about the Sarpanch, on which have committed mistake as thet beyond that they did not utter paragraph 5 of the cross-( the accused persons did not murdered, how they murdered they murdered. Therefore, base|l only, it would not be safe to the crime in question because) confession which is said to havb before Sonuram Bhagat (PW-7)| particulars by any other evidenc^. -examinlation cbNl<yl41-1 ^11^ ^ f^t <(^<-a< ^ ^rf^TT 3TT^T angalsai, Etwa was not there. 7ith regard to last seen theoiy i.e. was last seen with deceased 1 circumstance that the present Mangalsai made extrajudicial Bhagat is concerned, this witness ^.nt Etwa and Mangalsai came to luiring about the Sarpanch of Ibeen declared hostile and cross- cross-examination he stated that as to why they were enquiring ^ccused Etwar Sai said that they ^ have murdered one person and ^ny word and left for Lailunga. In this witness has stated that djisclose to him as to whom they |nor did they disclose as to when on this extra judicial confession accused/appellant Etwa with in this case the extra judicial been made by accused persons is not corroborated in material conlnect P.T.O. r^ XI-HC-78 75^ •^l^ll^il, ^Tlly^KS, fc«rtiy^< +11+1^11 ^)HT^ ^ 200 341^1 ^^ch (^i^qq^r) 3:Tf^T^)Tf^f c[^T3TR?T5b^|ch M ^cTW ^f?cT ^T^T a|nd 9. In order to convict the ack confession the most important| confessionmust be voluntarily the said extra judicial confession] as per evidence of Sonuram named the person to whom about the manner in which place of the commission of witness is ambiguous and th^ evidence to the effect that Mangalsai made extra judicial c^ murder of Dhansingh by them. evidence on record to connect th<| crime in question, as such in evidence against the accused/< for the offence punishable und^r sentence imposed under that Bh|a; theh? thety mi4rder acouse fat> sedtion appejal 10. In the result, the accused/appellant under Sectioi|i passed thereon, are set aside. H^ He is directed to be set at other case. Sd/- L.C. Bhadoo | Judge cbi^fd41^ Hm^ff ^ te^t <Ri^i< ^3Tf^T3:n^?T ;used based on the extra judicial requirement of law is that the true. As far as truthfulness of is concerned, in the case in hand igat the accused persons neither murdered nor did they disclose committed murder or time and \ The whole evidence of this re is no clear legal admissible used/appellant Etwa along with •nfession regarding commission of Moreover, there is also no other ; accused/appellant Etwa with the ;he absence of legally admissible )pellant, he cannot be held guilty Section 302/34 of the IPC and cannot be sustained. succeeds. Conviction of the 302/34 of the IPC and sentence is acquitted of the above charges. liber1|y forthwith if not required in any Sd/- Dhirendra Mishra Judge P.T.O.