k-i HiGHCGURT SA-TTiSGARH AT BiLASPUi DiVSSiON BENCi m: HON'BLE-Mr.T.P.S HON'BLE Mr.R.N.ChandraSiar, JJ. Appeilant i ii i »^t3iii Criminai ABpsai No.783 of 2007 Vikaram Kumar Gendre S/o Tularam Gendre, Aged about 22 Years Resident of Viiiage Khadaws, Police StaSion 'Simga Dfetrict Ralpur (Chhattisgarh) Versus Stste of Chhattisgarh Through Poiice ' Station, Simga, District-Raipur (C.G.O (Crimina! Appeai under Section 374 ofthe Cr.P.C.) Respondent Mr.Sudhir Vsrma, counse! for the appsliart. MrsA43dhunisha Slngh, Panei Lawyer for the Stste/respondent. ;01 Per T.P.Sharma, »..• •< r; i. ^/haiienye in this (Passed on 291n Ju!y, 2011) li is to the judgment of conviction & order of sentence dated 22.8.2007 passed by the 1s Additional Sessions Judge, Saloda Bazaar, in Sesslons Triai No.202/2006, whereby & whereundsr learned 1 Additionai Sessions Judge after hoiding the appeliant guiit for commission of cuipabie homicicie amountlng to murdsr of frvvo minor chiidren i.e. Rohit, aged about 10 years and Mewaial, aged about 8 years convicted him under Sectbns 302 and 302 ofthei.P.C. and sentenced to undergo imprjsonment for llfe and io pay flne of Rs.1000/-, in default of payment of flne to further undergo R.l. for four months and imprisonment for llfe and to pay fine of Rs.1000/-, iR default of payment of fine to further undsrso R.i. for four months. Cpnviction Is impugned on the ground that without there belng any iota of appellant as evlderrce, the triai Court has convicted & ssntenced the ai fy\r/Mmfir^vsf^vrfif\^ <tn^ ^'Ki'"iy<n^6^^f r>n»Tnrf»i-S4/%^l5ti^t/^>>»{i^tf iSsilliUi-iK^ ca> iU li id siUyUiJEiiUiji.E.^U tH^sycaiUV. ^''•*A?wn;awt^fT SE-^ 1 t3SiKac« Bias!^^,ss'SSSi3:^^33amiBtKUtnnmmli>niT<Tu'iii^naw Apoq PBSES ajaijM p|8y SLJ^ uioj^ jios uiejd ls Psu'Blspooig zz/d'xg ep|A SuiAi se,v,iejB/>A8i,'y p /,poq peep ejayft" 33g|d sqi LUGJI pajeAoosj eje.w iirtes uii&sr^ io n?ai !ig3t<i?rt!'^ni?'< ^Qnssiiiots EI/^ 'n"7/_i'Y~3 ^niiift i?sf\inn ^ui'iBsREicsiaAiti • ji^/ij ^*;i&gii»ti ^ }irf^t^»ii*^,''i^j»f'«f'>»T^ji^/|u/ '^tAd^^a ^c\jt ya/o /v^2 wi^ifl '"-"^'Ai''1^ >^*J(>•+*•'*•'I'i''^'1 Aq pejedsjd se.v, deuj }ods 9QOZ'£'9 uo •9jn}BU ui iBpioiuSotJ SBA* yiBep pue uoBeooyns oi BRp eixAydse SBM y}eep jo esneo •pestjejoi je,Ao „% x „ j, ,o uoisn)uoo (e) •u8||OAftsse 3oe^ (g) •qinoiu si4 u| pe^snjy} SBA* }Ujed jjr^ 10 pBsj (i.) -:ujO}dujAs/seynfu! )U!MO|IO^ ptino^ pus 9i,/d-%3 apiA ie|B.",9ylj ^o Asdoine pspnpuoo OS|B (gl-AAd) yeijpnoqo Aoj|!j8g'jo 'V9l-./d'x3 spiA eBiui.s 'sjiuao UiseeH Aiiunujuuoo 01 Asdo}ns -iOi lues se,v, ie^s.v.eiAj p Apoq peea 'ajnieu ui iBpiosuiou SS,*A L{}esp pue eixAudse pye uoiiejriBuBJp se", qseep p asneo •6s| %B!J io qLuny} JSAO •iuo% x 'tuo i, p uoisniuoo (9) •>|0eq J8AO 'LUO % X 'LUO 1. 10 UOJSP4UOO (S) •suoq J8i|eo %Su JSAO 'iuo % x 'iuo j, p uoisniuoo (fr) •>|OSU 9U1,0 ^UOJA Ui suossniuoo eidiyniAj (g) •>i09uei|yo epis ^Bu J9AO'ujo j, x'LUO e.iouossniuoQ fe) •LUJBejQ, J9AO „% X „% 10 suoisrquoo aejqi (1) -:S9URrU! SusA'Qjjo^ punoi pue Qi/d'X3 SPIA Asdoine pepnpuoo (gl-AAd) MBI{PROUQ Aejjiiss'JQ ej34*A ggL/d'xg spiA eSiuis 'sjyjeo 4?jB3H ^unuiLUOQ o} Asdotne JQ^ iuas SB.V. liqoy ,o Apoq pBsa 'gQoz'e'g uo i.t/d'xg 9piA4!ijoy 10 Apoq pssp JSAO issnbui p&je^sjd ot/d'X3 SPIA sesseu^w, SM.I euiuouituns jayy 'uosjed y,v,ou>jun ^ieBe f'/d'xa spl'* psGpoi S&*A 'y'i'd z/d'x3 SPJA ps-isdsjd seM !S!B,*l,e|f,\,o Apoq psep JSAO ssanbu! l.''d'X3 ®P!ASSSSeUtUB 9lj} BUIUOLUlUnS jaye DUB eouejjnooo r^S/'WQ'ui' p sueos Jo^ pspessojd jaoyp SUHESBSSAUI •e/d pus g/d'sxg epsA peteujiiuj SBA* Bjai.'u 'p|ay eq^ us puno^ ejs/w ssipoq pssa 'Bsnou siq 0} eiueo pesnooe ey^i jeveajsu,; pue ijiesp |epraiujou jisy} pesneo pue >ioeu jssy^ peis|n6uej?s eu uoiuopo ^o ssjnoo 941 Busjnp OJSUA'I pisy 0? usjpsjqo Stj} iij.oq ^ooiaq 'ui'd ^ inoqs }B 9QOZ'£'fr' uo jeyeejs^ 'ssnoy siq us liqoy pue ge|eA*etA| usjpiiiio jouiiii OMI pejieo ;uE|!3dde 941 '}ue||3dde s^ tuoj, Aauoui auuos p yeiit 10 sunoooe uo 'uosnoesojd 942 lo ssso jed sy "E 'lii ~~.,.J/,/ c l"il'< of Rohit v/as lying 'A'ere recovered vide Ex.P/23. On 8.3.2iM)6 ths appeHant made extra {udicial copifession before eight viiiagers vide Ex.P/5 and admitied ihai he has committea homscidai death of aforesaid two chiidren. One Surya torch was recovsred from the appeiiant vi v P/R i-~> fcX. 1-JU5. On 8.6.2006 shirt containing yeilow button tied with yeiiow thread except two buttons wereseized from the appeiiant vide Ex.P/7. On 8.3.2006 nails of the appeiiant were ctrtand seized vide Ex.P/24. On y.3.2006 from ihe field of Manohar Sahu. where dead body of Ro'nit was iying pne yeiiow coiour butttsn and two pieces of one yeiiovi/ coiour button were seized vide Ex.P/25.1 Viscsra and ciothes of deceased Rohit & Mewaiai vrere seizsd^ide Eis.P/25 & P/27. Selzsd articles wsre sent for chemicai examination vids Ex.P/31. On examination vide Articts r- F.S.L. has opined that yeiiow button found in shirt of the appeliant and yeilow button found in ths fieid where dead hody of Rohit was iying were identicai in shape and coiour. 4. Statements of the witnessss 'n-ere recorded under Ssction 161 of the fr p.C. and after completion of investigation, charge sheet v/as fiied the Court of Judiciai iV.aglstrate Firsi Class, Baioda Bazaar, who sn turn, committed She case to the Court of Sessions, Raipur, from where the 1 Additional Sessions Judge, Baioda Bazaar received ths case on trsnsfer fortrial. 5. in order to prove ihe guiit of the accused/appeiiant, the prosecutlon has examined as many as 24 witnesses. Statement of the accused/appeilsnt was recorded und&r Section 313 ofthe Cr.P.C., In which he denlsd the circumstances appeariRgagainst him and pieaded innocence and falss impiication in the crimein question. S. After providlng, opportunity of hearing to the parties, iearned 1 Additionai Sesssons Judge convicted & sentencsd the appsilant as aforeinentioned. 7. We have heard iesrnsd counsei for the parties, perused ihe judgment impugned and record of She triai Court. 8: Learned counsei for the appeiiant vehemently argued that In the present case conviction Is based Q& conjecture and surmises. The appeilant has not convicied oniy on the basis of his previous criminai antecedent, '^>.fe ^- -1, SS'(BC~ ::si® "^^ ^-"^ :'ii>>,. '<;^,!>s..., ffF-t-'i whlsh was noi sufficient for Conviction for commission of offence of cuipabie homteide amounting to murder. Learned counsel further agued that ihe triai Court has substsntiaHy relied on ths foiiowing three circumstances, (i) Seizure bf torch used by the deceased fFom the appsiiant, (ii) Recovery of oae yeliow coiour button and two pisces of one yeilow coiour button found near the piace where dead body of Rohit was iying snd missing offr.vo Buttons rromshirt ofths appeliant. Other buttons found in shirt and reoovered from the spot were Identfoal in coiour snd slze and (iii) extra jydjcisi confession mads by the appeiiaRt before Laxminarayan-(PWy), Mohan (PVV-9), Omprakash (Fvy-11), Chaitram (PW-14), Kishun s (PW-15) and Ferharam Sahu (PW-16). Learned counset also argued that seizsd tcrch has not been subjected for Identification, even it was not identiiled by fhe '.vitnesses during the course of tria! before the Court. Aforesaid witnessss have;specificatiy admitted that at the time of such extra judiGlai confessioR Ex.P/5 the appeliant v/as in Gustody of the poilce and during the course of custody one constabie informed them that the appeilant is admitting his gui!t, thereafter, they caHed the appeiiant ouiside of the Poiice Statioo where he made extra judicial confession which shp'A's that at the time of recording of atleged exfra judiclai confesston the poiice officers were present. On 5.3.2006 at ihetime of recovery' of dead body or seizure of bloodstained & pfain soii from the spot, buttons were not found, bui after three days when missing of buttons frem shirt of the appetlant 'Atso was in continuance custody of the poiice was notlced, then again vide Ex.P/25 the poiice officers have seized one yeiiow coiour button and t»vo pleces of one yellow coiour button from the spot shows that the poiice officers. have pianted the aforesaid buitons on the spot. Learned counsel contended ihat the prosecution has not coiiecSed prima facie evldsnce agalnsS the appellant, thsrsfore, convictlon & sentencs of ths appellant sre not susfainabie under the iaw. 9. On the other hand.ieamed State counsei supporfed the judgment impBgned and argued that eonviction Is based on extra judicial " confession made -by tRe appellant before the witnesses ar«d recover/ of aforesald articies. The appstiant has not offered any expianation of aforesaid adveree circumstances. After appreciating the |evidence ^isa^^ ^:^ .E|l"^l j "VSf^A ^ avaiiabie on record, the triai Court has rightly convicted & sentenced the appeiiant as aforementioned. 10.in order ier to appreciats the argumenis advanced on behaif of ths parties, >'e havs examined the evldence adduced on behaif of the prosecution. 1.in the preseni case, homicidai death as a resuit cf fatai Injuries, stranguiation and suffocation of deceased Rohit and Mewalai has not been substantlaliy dispuied on behalf of the appeitent, even othe"A'ise; it is established by the eyidence Dr.Salilram Choudhary (PW-18) and Exs.P/15 i&nd P/16. Death of Rohit and Mewaiai was ^ iiomi in nature. i ^ Ao y<"krsi'"iir/^e^ fr^i*^. <^/^rv^t"kEia^.t^V/ .^? ^'3^<S '•?ip^.!nt.l'^5|''in'^ in ^h^a ^rtmf-t »n ''11 leac^^'t i^.MO itSy<SiUi3 IU<7 Lruiiipuvlii.y Vi il Et? cap^i't^licEl ii. ii S l.uss ^iiill^ lll v^ucas.iUl S, conviction is substantiaiiy based on the folSowing circumstances, (i) Recover/ of torc'n used by the deceased from the appeilant after commlssion of offence. (iJ) Recovery oftv/o buttons idenilcal to other buitGns found in shirt ofthe appeilant. (ill) Extra Judiciai coRfession made by the appetiant before the witnesses >'. Stste of 13.1n order to convict the accused on the basls of circumsti t'ne Supreme Court in the matter of Kusuma AnRama A.P.' has heid that in case of conviction based on circumstantlal ^\\isf*f"i,y^f^f\ i^^/i^*<^a^.»t^id^is^ iif^ r<'^.jrTt lirrfsrl l'^\ e**''?-?'^?*.*'i'n'?' ff^lin\stftr9/vi /^«r<n«(yin^^^i^^ifii ?, pi U&tcUUiivi f i<? iS^Uii^U i.^J a»sKt.iosy t.ui; iyiiuwsuy ^is^uiiioiaiii-fGa, » •S'^N/^ f^frf^i trv^e'iv'i^v\f\f\f^ ^tyim *jt»tM^.^ •I'r^/^ <^/\r»j^iii^i/Mi^ t^? f^i iiS^ ie* ^f\ i. i,i t^; ^Sii/UillCTi.tSl KuF^;^? Si^/lii wlll^ii u ic ^wi ii./iyaiui i ut MUiii aa lu *2008AIRSa,V4S6S ms im'if^ntl^i ^yid^rir:^ 1 be drawn shouid be fuilv estabilshed. Ttt—clrcumstances concerned 'must' or 'shouid' and not 'may bs' estabiished; the facts soestabiished should be consjstent oniywith the hypothesis of the guiit of the accused,that is to say, they shouid not be expiainabie on any other hypothesis except that the accused is guiity; the circumstances should be cf a conclusive nature and tendency; /~ .:.^'^ ^ "~?,i -,,/'.s1' 0 '•r'-ia'^^ <'>?^.'*>.! iirS • <?tW.r»hiriffi ft\iiff,*'\f >^*^p>]T*t^i^ ^i ^i^/^i'i^/^.«^i<^ i'%t/i»s.^t»^'S' •i'i^^k i.uc;y oiavyiu S?A^/SUUS tt;v<?s y puis&is.jiis t sypuii i^6?iCT ^Af^^pl li is one to be proved; and there must be a chain of ev'idence so compiets as not to leave any reasonable ground for the conciusion consisteni with the x^/^^iiff^^k.fa <^'? •i-i-k.c'i ^ini/M *ii">.n/4 '^»^<"1 vrVit t(~*4- ff<.^<^»»*•8'^t<^¥ ii il iu'u*^! a^ss Ui iiiS; ca^;L/u£?^U TO! iu iiiyisi. i?! iUW (.iii aii hurrian p y> »\rf^t^^t^tft^\t i's^&, ^'sf^t' w\t te^& i'^'tiii.'"* tN.i''Stin.«ni jr{ii^«nii<^ i^i f li'S^, u iJ'i^JUcauEiii.v i,uss ca^l ifiUol, 1 ic^V^; u^^i! Uvi i^ i^V.^.ii1 14.1n the ores accused. y^y^i^'^^riv' in/^^i~i '-»«•* I^Vf-tr' ^^»/(^.Tki>^<^/^. r^'F ! <^^/innE»^*^»-»^i<'-i»s./E3»A^./«\ i^ |Jis3o^iii, ^i'sSsaVf s3& p^7i fcSViU^ijLfK ^Ji ^t^Aii iSs i<3icay(Sli ^n¥V~'T/, iViUi S(^i /ptfif. W-S), Omprskash (PW-11);t»haitram (PW-14), Kishun Das (PW-15) :'il? , ^^kffrt,'~ip-fiB-vi Q's&^i i /O^ A A:i."t S?\ i'i^/'i tniy^K^f^r*'^ i»>Nn^ti{.ni«^^ S^t^f^ tTn^a^/^ /^^^•ir'i rotiCiiaESi <3ta.au ^r'yv^!^, iu^; ^'stiasiii czppt;iEajii itcaa* iiiciUifcS ^Ai.ira ''-' '( 'ssrS^a'ai 'rl-rtin>'?<•»<"•^••ifr^r^ ^•"'^yr^.vfs ^P^^SFVI ~ll^''^li' iHi<"> S^'i'if /»/^yTncyM^.(^^ r^iisitr/<i/\y •r^'? ft/i^*i iUli^tcai i^Ui 11 &i;Sa'fkJi s ijfcsiutis-i.1 ifc?iit i,; f^t l ifc; i iao ^uii !li Ull^U sliUIU^i ^i iV ¥iivai< and Rohit on accoynt of sxiortion reiating to tneft of money whtoh they have recorcSed vide Ex.P/5. The aforesaid witnesses have specificatSy admltted in their cross-examination that at the time of such extra judiciai confession the appeiiant was in custody of ihe Poiice in Poiice Station in coRnection with the offence reiating to sword. They have informed bythe poiice officers that the appeiiant who in custedy has adiriitted his guiit of the present case. Thereafter, the poiice officers have producsd fhe appeiiant before them, then they asked the appeilant about aforesaid offence whsreupon ths appeliant made sxtra judteiai confession that he has committed murder of f^ewalai snd Rohit, 'A'hich they have recorded vlde Ex.P/5. Some wltnesses have specificsiiy admltted that Ex.P/5 has been recorded in Poiice Station by one poiice constabie and they have signed cn Ex.P/5 on the tabie of Station Officer. Evidence of these witnesses cleariy revea! that aforesaid extrs judictal confession has been recorded by the Poltee ufflcers within the poifee premises where poiice officers were present berore such confession. They were informed by She pollce offieers that ths appeiSant who v»asin eustody is admitting his r*t siSy •QE^*^ in<^Si.r^<'-!'t /'t^iii^i.Are- i^'^^j^> iinsr/^^ta [in<'^r^ v)>^^i -"tFM^^\)S'"(*^4- i^/<?Ar^^ 4-i^/tnr^ ff\r Siil rarfu puu^t; ^ni^t;s.& i icSV^ pi ^nJU^'cm ii i'K OpiJKiicai it, Utriuie; fciicEil i^i such extra judiGiai confsssion. 15.Ajoresaid extra jydiciai confesstoR recorded by the poiice officers or in prsseHce of ths poiice officers is hlt by ihs provlsions of Sections 24, 25 ^J ans 26 oftt ,1- vt»tft Cl idenoe Aci and ssme is not admissibie in evidence. As per evidence of Laxminarayan (PW-4),' before deat'n of deeeased B "w '-\ ;'i't Sj s ^ ^^ .^'' the persons they wers hoiding torch and torch has been seized from the appeiiant vsde Ex.P/6, bui same 'nas noi been piaced for test ideniification, even it v,'as not producsd during the course of triai for identiflcation. in the absence of evidence of identification, it is difflcult to I • hotd that torch seized from.the accused was the torch ofthe deceased or aforesaid torch wss In possessipn of the deceased before their death. 16.As regards the circumsiances of recovepy of buttons, on 6.3.2006 dead body of deceased Rohit was recovered from the fieid, after summoning the witnesses vide Ex.P/1.0 tnthe presence of the eyewitnssses inqusst was prepared vlde Ex.P/'Til, ori the same day bioodstained & piain soll were recovered from ^he spot vide Ex.P/23 and on 6.3.2006 spot map ^ was prepared by invsstigating offtcer vide Ex.P/20, but on that day inyesiigatlngofficer or other psrson has not noticed the aforesaid buttons iying on ths spot. On 8.3.2006 shlrt which the appeiiant was wearing was seized vide Ex.PH in whieh two yeilow buttons were mlssing ahd in case of one yeiiow button white button wastied by white thread and thereafter on 9.3.2006 one yeiiow coiour button and two pieces of one yeiiow button were seized from the spot vide Ex.P/2 P/25. 17.if{hsse evidences are considered on the basis of their recover/.then it wouid be ciear that at the time of inquest, aforesaid buttons were not noticed by any of the persons,. aithough there was more than six persons. As per Exs.P/10 and P/11 at the time of preparation of spot map vide Ex.P/20 buttons were not noticed. At ths time of seizure of bioodstained & piain soi! from the spot vide Ex.Pi'23, investigatjng officer has not noticsd the aforesaid buttons. A{ ihe tims of interrogaiion while ihe appeiiant was in custody, investigating offteer has not noticed the fact that two yeilow buttons from shirt of the appeiiant were missing. it was oniy noticed on 8.3.2006 at the time of seizure of shirt of the appeilsnt at about 10.30 p.m. Thereafter on 9.3.2005 at about 5.15 p.m. after 19 hours of seizure of aiieged shirt one yeilow coiour button and two pieees .pf one yeUov,' coiour button were selzed from the spot. When ths afor^said buttons were iying on the spot at the time of inquest and seizure of bioodsiained &.pisiR soii, then why it has not been seizedand if the buttons were not lying on the spot at the time of suc^i inquest and "^^^^^Si^^m^-^' F;;2~ recover/ i.e.on 6.3.2006, then v»'ho has thrown or kept the buttons on the spotafter 6.3.2006, especiaHy when the appsllant was In custody and was riotin a position to reach to the spot. 18.These ali circumstances create serious doubt reiatlni ^^ FQf^f\\iC.y\f /^f buttons on fhs spot on 9.3.€OOQ, Aforesaid fact reveais that ths prosecution has not proved complete chain of circumstances. the prosecution has not coliected prima facie evidence in the preseni cass against the appsilsnt aithough this is a ease 01 doubie murder of mlnor children, but only on the groursd that two mlnor children have been kliled i'ne person against whi^n the prosecution has not coliecSsd any ^... -•••^ !>/"»» ir^^t f^f\ir^tff^'i sd snd sentenced for commission of aforesaid offence. Convictlon & sentence of the appeilant are nof sustainabie under the iaw. ^ l9.'vVhlls convicting & sentencing the appeliant, the triai Court has not considered the evidence adduced on behalf of the prosecutlon in Its evidentiary vaiue and hss not scrutinized the evidence {»((Bt thereby committed iliegaiity. 'We do not flnd anycaseand e'.'idence against the appeiiant for commission of aforesaid offence. ZO.ConsequeRtiy, the appesi aeserves to be ailowed snd it is hereby ailov/ed. Convlction of the appellantSections 302 and 302 of the i.P.C. and sentencsd to undergo imprisonpient for Hfe arsd to pay Tine of Rs.'lOOO/-, in defauit of payment of fine to funher undergo R.l. for four months and imprisoRment for iife and to pay fine of Rs.1000/-, in defauit of payment of fine to further undergo R.i. for four months are hersby set Ti- iai "K"i e^e-^ 1/j v\f asiae. ihe appeiiant is in jali, ne &e sst at iiseny an3 os reieas ^s^htief^ f nr^ ro.p^i "rffsrl *! tortnwitR, IT not requirea in a Sd/- ' T.P.Sltarma Judge Sd/- RJ^.Chandrakar /. Judge >~' 3 ! -- •3t