APK HIGH COURT OF CHHATTISGARH AT BILASPUR Ir / / / r,/ 9W $§" «3" _ Hon'ble Mr.R.L.Jhanwor r / ,‘ g» 3"a%e 9‘ A I \ Post for Judgment on’ f: 27*?11/2009 Sdl- T. P. Sharma Judge Comm: Hon'ble Mr.T.P.5harma & Hon‘ble Mr.R.L.Jhanwar, JJ. Criminal Appeal No.720 of 2004 Rakesh Kumar Pandey @ Chu’ru Ver‘sus u t. Sfafe of Chhaffisgar'h £ JUDGMENT FOR CONSIDERATION Sd/- T.P. Sharma Judge HIGH COURT OF CHHAT'IIsGARH AT BILASPUR i Criminal Ap_geal No.720 of 2004 1 CORAM': HON'BLE MR.T.P.5HARMA & } HON'BLE MR.R.L.JHANWAR, JJ. \ APPELLANT Rakesh Kumar Pandey @ Chufu S/o (In Jhil) Brahmdeo Pandey, Aged abou’r 23 years, 1 R/o Village Dundu, Junapara, P.S. Dhourhlr‘, Dis’r:$urguja—(C.G.) Versus S‘rafe of Chha’r’risgar‘h Through Stafion Officer P.S. Dhorpur, Disf:5ur'guja-(C.G.) ‘$f, REsPbNDENT - n, (CRMINIL APPEAL‘gNDER sECTION 374 (2) oF THE CODE OF CRIMINAL PROCEDURE, 1973) Presénfz— Mr.Arun Kumar Shukla, counsel for ’rhe appelIanT. MnRavindra AgrawaL Panel lawyer for The S’rafe/respondem‘. JUDGMENT (Passed on Q7”‘ November, 2009) The judgmen‘r of The Cour? was delivered by T;P.5harma, J.:- 1. By ‘rhis appeal, The appelIanT has challenged The legaliTy 'and proprieTy of The judgmenT of convicTion and order of senTence daTed 19.8.2004 passed by The ForTh AddiTional Sessions Judge (F.T.C.), Ambikapur, in Sessions Trial No.413/2003 whereby & whereiihder learned ForTh AddiTionaI Sessions Judge afTer holding The appellanT guilTy for The offence punishable under SecTions 364/34, 365/34, 302/34 and 201/34 of The Indian Penal Code senTenced him To undergo rigorous imprisonmenT for 10 wyears and To pay a fine of Rs.500/—, rigorous imprisonmenT for 5 years and To pay a fine of Rs.500/‘, imprisonmenT for life and fo pay a fine of \\ ‘‘L Rs.500/- and rigorous imprisonmenT for 5 years and To pay a fine of l @9 Rs.500/—, in defauH of paymem of fine f0 furfher' undergo rigorous imprisonmenf for 3 monfhs on each coum‘. . JudgmenT 6i order are challenged on The ground ThaT wiThouT There being any clinching and credible evidence, The CourT below has convic’red and senfenced ’rhe appellanf as aforemenfioned and Thereby commiffed illeg‘anty. . Case of The prosecuTion in brief is‘ThaT ShaTambi (PW—2) was pregnanT and gave birfh To female child on 13.10.2003. The appellan’r was having illicif reldtion wifh Shafambi and as a resulf of such rela’rion, she conceived and gave bir'Th. Affer bir’rh of The child, on 14.10.2003 of abou’r 11-12 at nighT, The apQeIIan'r Took The child from ShaTambi and offer ThroTTling, commiTTed murder‘xof The child and wiTh inTenT To conceal The birTh and ~. The evidence of criminal case, he Thrown dead body inside The well. The app‘ellanT was Taken in’ro cusTody. He has made disclosure sTaTemenT vide EXP/13. On The basis of disclosure sTaTemenT, dead body of The child was Taken ouT from well vide Ex.P/3. Dead body was Tied wiTh s'rone of 2 % kg. DehaTi Nalishi was recorded vide EXP/22. On The basis of dehaTi nalishi merg was recorded vide’Ex.P/32. AfTer summoning The wiTnesses vide Ex.P/4, inquesT was prepared over The body of The child vide EXP/5. SpoT map was prepared by invesTigaTing officer vide Exs.P/6 and P/7. Dead body was senT for auTopsy vide EXP/23 To CommuniTy HealTh CenTre, Dhoulpur. Kedar Das faTher of ShaTambi has lodged The F.I.R. vide EXP/20. AuTopsy was conducTed by Dr.Kamlesh Kujur (PW—17) vide EXP/22 and opined ThdT cause of deaTh was due To asphyxia as a resulT of ThroTTIing and deaTh was homicidal in naTure. CloTh was recovered vide EXP/11. ShaTambi (PW—2) was also examined by Dr.$mT.$nehlaTa Kujur (PW—12) vide Ex.P/19 and found sign of recenT delivery wiThin 7 days. PhoTographs of The dead body of The child were Taken vide EXP/28. , 3i‘ Sfa‘remenfs of 'rhe wifnesses were recorded under Sec‘rion 161 of ’rhe Code of Criminol Procedure, 1973 (hereinaffer' referred To as 'fhe Code’) and offer complefion of inves’rigofion, charge shee’r was filed in The Cour’r 0g Judiciol Magisfrofe Firs’r Class, Ambikopur, who in furn commih‘ed fhe case To fhe Cour’r ’of The Sessions Judge, Ambikopur (Surguja) from where ForTh AddiTional Sessions Judge (F.T.C.), Ambikapur (Surguja) received The'same on Transfer for Trial. According To The case of The prosecuTion, TheiappeIIanT along wiTh one Parshu Ram @ Pappu have commiTTed The aforesaid offence. I'gf. In order To prove The guilT of The appeilanT/accused, The prosecuTion exai'nined as many as 18 wiTnesses. STaTemenT of The accused/appeIlanT was: als: recorded under SecTion 313 of The Code where he denied The circumsTances appearing againsT him and claimed innocence and false ’ impiicaTion in The crime in quesTion. AfTer affording an opporTuniTy of hearing To The parTies, The Forfh AddiTional Sessions Judge (F.T.C.) has convicTed and senTenced The appellanT as aforemenTioned. We have heard Shri Arun Kumar Shukla, counsel for The appellanT and Shri Ravindra Agrawal, Panel lawyer for The STaTe and perused The judgmenT impugned and record of The CourT belowu. Learned counsel for The appellanT vehemenTly argued ThaT The prosecuTion has uTTerly failed To esTablish any illiciT‘ relaTion of The appellanT wiTh ShaTanbi (PW—2), alleged moTher of The deceaSed child. The prOSecuTion has also failed To adduce any evidence To show ThaT The appellanT has caused homicidal deaTh of The deceased child and commiTTed The aforesaid offence. Learned counsel furTher argued ThaT The appellanT has been convicTed on The basis of conjecTure and surmises. On The oTher hand, learned STaTe counsel supporTed The judgmenT impugned and argued ThaT The prosecuTion has adduced sufficienT i \9. \ @ evidence 1'0 prove the commission of offence againsf The appellant Learned counsel fur’rher argued fho’r the appellant is the main accused who was having illicit relation with Shatambi and has committed murder of newly born child with a view to conceal the evidence of criminal case. He has thrown the dead body in well under water. 10. In order to appreciate the contentions of the parties, we have examined the evidence available on record. In the present case, the appellant has not substantially disputed homioidal death of the child, on the other hand, it is established by Dr.Kamlesh Kumar (PW—17) and autopsy report (EotPf/ZO). Dr.Kamlesh Kumar (PW—17) has deposed that on 18.10.2003 he has examineddead body of newly born child and found compression mark over Pier neck arid presence of blood beneath such mark. Fracture of 4*“ and 5*“ cervical vertebra and fractureof trachea ring were found. Cause i, of death was due to asphyxia as a result of throttling and death was homicidal in nature. In para 16 of his cross-examination, he has admitted that injuries found over the dead’body of newly born child may be compression of neck or as a result of throwing alive child in well. For causing death of newly.born child by compressing the neck or causing death of newly'born child by throwing it in a well is a death homicidal in nature. a 11. In order to establish the complicity of the appellant in the crime in question, we’have examined the evidence adduced on behalf of the prosecution. shatambi (PW-2) has deposed that she was pregnant and gave birth of female child on 13.10.2003. Panchayat was convened. She has deposed that at the time of incident at night, female child was sleeping with her but when she woke up at 5 am at morning female child was missing, she was not present there. They searched and again convened panchayat. Child was sleeping in one piece of cloth (lungi). In her detail cross-examination, she has denied that she was pregnant through the appellant. Dr.$mt.$nehiata Kujur (PW-12) has deposed thdt she has examined Ku.5ha’rambi on 18.10.2003 vide Ex.P/19 and found sign of recenT deliver‘y wifhin 7 days. 12. This fad remained undispufed ’rha’r Shafambi gave bir‘rh ’ro The female child on 13.10.2003. On 14.10.2003 she was sleeping wiih The child and child was missing wiTh/bne piece of cloth (lungi). Kedar' Das (PW-1) faTher of‘ Shaiambi has deposed ThaT his wife informed him Thaf abdomen of Sha'rambi was enlarged. His wife asked Sha‘l’ambi abouf abdomen bu’r she did nof say anyfhing. AT ’rhe Time of delivery, she gave birfh of female child af night Panchayaf was convened where Shafambi did nof say about any‘pefrson buf member of The panchayaT searched abouT The appellanT. The appellanT was noT presenT in his house, Then They posTponed The panchaya‘r. ShaTa‘mbi was sleeping in her house along wiTh newly borLn child. His wife was sleeping in anoTher room. When They woke up aT abouT " 5 am aT morning, They found ThaT newly born child was missing. Again panchayaT was convened. They searched newly born child buT did noT find, Then KedaF Das, faTher of ShaTambi lodged The reporT vide Ex.P/20. The prosecuTion has declared him hosTile. Bhagmaniya (PW-3) moTher of ShaTambi has also corroboraTed The version of Kedar Das. Dhaneshwari Bai (PW—4) Sarpanch of The village, Mayadas (PW-5), Chowkidar (KoTwar), Naresh Prasad GupTa (PW-6) Up-Sarpanch of The village and Ramprasad (PW—7) have deposed in Their evidence ThaT when ShaTambi gave birTh To one female child, Then They were called by faTher of ShaTambi. They asked ShaTambi abouT The faTher of newly born child, Then she Told Them ThaT The appellanT is The faTher of The child. They again asked wheTher The appellanT will admiT The facT ThaT he is faTher of The child, Then ShaTambi Told Them ThaT he will admiT The facT. They have also deposed ThaT on second day, child was missing, Then They again ”asked ShaTambi ThaT who had Taken The child Then she answered ThaT The person who gave had Taken The child (tks fn; k Fkk ogh ys x; k), Then They senT KoTwar and faTher of ShaTambi To The police STaTio‘n. Police came To The village and conducTed invesTigaTion. @ 13. Naresh Prasad GupTa (PW-6), Up-sarpanch of The village has deposed fhaf police came to The village and search abcu‘r fhe child, but did noT find The child. Thereaffer', The police asked The appellanT abouT The child. The appellanT made disclosure sTaTemenT ThaT he had puT The child in well and he Took The policemear‘ well siTuaTed beside Bhandar‘ of Someshwar Pral‘ap Singh. The police recorded disclosure sTaTemenT of The appellanT vide EXP/13. The police has arranged Jhagar (insTrumenT for Taking ouT Thei Things from well). They inserted Jhagar in well under The waTer and wiTh The help of Jhagar, They Took ouT dead body of The child Tied wiTh cloTlkdnd one sTone. Same was recovered vide EXP/3. He has also supporTed The ‘seizure of oTher arTicles. Disdosure sTaTemenT and recovery aT The insTance of The oppellanT has al30 been supporTed. by anoTher wiTness Rémprosad (PW—7) who has corroboraTed’The evidence of Naresh Prasad GupTa (PW—6). I.Tirki (PW-18) Sub InspecTor has also supporTed disclosure sTaTemenT made by The appellanT and recovery of dead body along wiTh cloTh and sTone from well vide Ex.P/3. Ramprasad (PW-7) has deposed ThaT he has recorded merg inTimaTion ofTer recovery of The dead body and also supporTed The invesTigaTion of The crime. The defence has cross—examined Ramprasad (PW-7) aT lengTh. In para 15, he has admiTTed ThaT previously he was salesman in The socieTy and he was removed on The complainT of The villagers. He has also admiTTed ThaT main complainanT was DevduTT Singh, buT he has denied The suggesTion ThaT wiTh a viewTo implicaTe The appellanT, he has prepared The plan. In his deTail cross-examinaTion, The defence has noT been able To eliciT anyThing To discard his TesTimony relaTing To disclosure sTaTemenT made by The appellanT and recovery of The dead body from well inside The waTer aT The insTance of The appellanT. 14.,3The case of The prosecuTion is subsTanTially based on disclosure sTaTemenT and recovery of The facT made by The appellanT under SecTion 27 of The Evidence AcT. 7 35‘ While dealing wifhfhe condi’rion necessary for brining ’rhe sec‘rion im‘o '15. opera’rion, Sir John Beaumon‘r in The mat’rer of Pulukuri Ko‘r'raya land ofhers v. Emperorl observed Tha’r Section 27, which is no’r artis’rically Worded, provides an excepfion To fhe prohibifion imposed by The preceding secfion, and enables cer'Tain sfafemen’rs made by a person in police custody ‘ro be proved. The condiiion necessary 1‘0 bring The secTion into opera’rion is Thai discovery of a facT in consequence of informaTion received from a person accused of any offence in The cusTody of a Police officer musT be deposed To, and Thereupon so much of {he informaTion as relaTes disTincTiy To The focT Thereby discovered may be provedt’ The secTion seems To be based on The view ThaT if a facT is‘ aclually discovered in consequence of informaTion given, some guaranTee is afforded Thereby ThaT The informaTion was True, and v, a. accordingly can be safely allowed To be given in evidence; buT clearly Tl'le exTenT of The informaTion admissible musT depend on The exacT naTure of The facT discovered To which such informaTion is required To relaTe. 16. While dealing wiTh The same quesTion, The Apex CourT in The maTTer of Earabhadrappa v. STaTe of KarnaTakaz has held ThaT for The applicabiliTy of S. 27 Two condiTions are pre-requisiTe, namely (1) The informaTion musT be such as has caused discovery of The facT: and (2) The informaTion musT ‘reIaTe disTincTly'r‘ —To The facT discovered. Under S. 27 only so much of The informaTion as disTincTly relaTes To The facTs really Thereby discovered is admissible. The word 'facT' means some concreTe or maTerial facT To which The informaTion direcTly relaTes. In The presenT. case, dehaTi nalishi was recorded afTer recording of disclosure sTaTemenT of The appellanT, aT ThaT Time The police has nqT made The appellanT formally as accused. While dealing wiTh The quesTion of a person accused of any offence, The Apex CourT in The maTTer of ‘AIR (34) 1947 Privy’Council 67 ZAIR 1933 sc 446 N 59‘ State of Uffar Pradash v. Deoman Upadhyaya3 has held fha'r provisions of Secfion 28 of The Evidence Ac’r does no’r predicafe a formal accusa’rion agains’r him at The Time of making fhe s’rafemen'r soughT ”to be proved, as a condifion of iTs applicabili‘ry. 18. In The presen’r case, The evidence of Naresh Kumar GupTa (PW-6), Rdmprasad (PW-7) and InvesTigaTing Officer I.Tirki (PW-18) reveal ThaT The accused has made disclosure sTaTemenT of The facT ThaT dead body of? newly born child was Throw‘n inside The well and The same was relcovered from well which The appelIanT had idenTified. The parT of disc‘rosure sTaTemenT relaTing To disclosure of The facT i.e. dead body of newly born child found in The well is admissible in The evidence under SelcTioh 27 of Thé' Evidence AcT. 19. The presenT appellanT has noT offered any explanaTion ThaT how he knows dead body of The child which was found in The well under The waTer and noT visible, wiThin 3 days of delivery of such newly born child. The prosecuTion has also proved The facT ThaT ShaTambi gave birTh of The child on 13.10.2003. These circumsTances show ThaT he was having knowledge of The facT ThaT dead body of newly born child was inside The well under The waTer or he has seen some person Throwing dead body in The well or he is The person who has Thrown dead body of newly born child in The well under The waTer. ShaTambi has noT suppcrTed The case of The prosecuTion and The prosecuTion has declared her hosTiIe. . The evidence of Sarpanch Dhaneshwari Bai (PW-4), Mayadas (PW-5),' Up-sarpanch Naresh Kumar GupTa (PW-6) and Ramprasad (PW-7) reveal ThaT The presenT appellanT is closely connecTed wiTh The incidenT and he was having illiciT relaTion wiTh ShaTambi. They are independenT wiTnesses ”having no enmiTy and were responsible auThoriTies of The village. They are panch and sarpanch and Their sTaTemenTs can be used for The purpose of corroboraTion. In absence of any explanaTion of The knowledge of dead l 3AIR 1960 5c 1125 body inside well under The wafer by ’rhe appellanf, i1' can be safeiy presumed Tha’r The appellant is The person who has fhr‘own dead body inside well under wa’rer‘ afTer roping ’rhe body wifh The sTone, eiTher alive or af-Ter causing deaTh. Throwing of newly born child in a well iTseIf is a acT of causing deaTh 9f newly born child. 21. According To The case of The prosecuTion, The appellanT has kidnapped The child in order To murder and finally he murdered The child, buT The appellanT has noT abducTed The'child wiTh inTenT To confine a person secreTly and wrongfully. The appellanT had noT offered any explanaTion ThalTfin sharing of common inTenTion, he has commiTTed The aforesaid offences. In oTher words, The evidence adduced on behalf of The p‘roseiuTion is based on credible and clinching evidence and susTainable under The law sufficienT for drawing an inference ThaT The appellanT has " kidnapped newly born child and commiTTed her homicidal deaTh amounTing To murder and concealed The evidence of criminal case which are punishable under SecTions 364, 302 and 201 of The Indian Penal Code. 22. For The foregoing reasons, The judgmenT impugned requires parTial and Technical modificaTion: ConsequenTly, judgmenT impugned is parTly modified. The appellanT is acquiTTed of The charge of SecTion 365/34 of The Indian Penal Code and insTead of convicTion under SecTions 364/34, 302/34 and 201/34, he is convicTed under SecTions 364, 302 and 201 of The Indian Penal Code and senTenced To undergo rigorous imprisonmenT for 10 years and To pay a fine of Rs.500/—, imprisonmenT for life and To pay a fine of Rs.500/— and rigorous imprisonmenT for 5 years, in defaulf of paymenT of fine he shall furTher undergo rigorous imprisonmenT for 3 l l ”:3‘ . monThs on each counT. r w Sd/. i R.L. Jhanwar‘ Sdl— V Judge T. P. Sharma Judge 27— 1 1 -2oo9