^- 1 IM IHE HX8H COUBa' OP CHHAS'TISSABH AI BXIASPUR C.©. CB.A. V ,/2002 APPBLLAMI : OASAMU S/0 (taradeshi age<i 21 yrs. fi/o village MauaLipar P.S.Sarateiha Sistt.Bastar (G.®.). . ; ys&svs KBS>ONDEBT State of Chhattisgarh, throagta p.s.Barbha. MEMOR*>iIBOMjO£_GfiIMXMAt< AEPBAL. U/S. 374(2) CRB1IKA&- ?SOCEDVBE_ eQBE . H XI-HC-78 3II^!T?irR-<i<t> (WTSn^TsbMit*) HTHPTI ai*n<»» 3^'^wiciii, (STnwiio, RiciKHy _ Cr-^Afo ?l^oz_ ^y^ ..................<., ^ 200 3<i^l Ma<n ('^f^S'd') CTBraT^ri^a'sTi^T MVISION BENCH:- HON'BLE MR. L.C. BHAtsOO. HON'BLE MR. SUNIL KUtAAK 17.1.2007 Ms. Uma Tiwari, Advocatt Mr. Ravindra Agarwal, Po^iel Heard. Oral judgment dictated djn Oais. PefLSynU Kyniar Sinhg. J. This appeal is directed srder of ssntsnce dated 181 Additionat Sessions Judge, No.367/01. By the aforesaid j4 under Section 302 of -rtie Indi rigor'ous imprisonment for life| under Section 201 of the ri9orous imprisonment for two ^' TTie co.se of the about 8.00 p.m. Chingdu (sinc^ herein on the pretext that th^ Chingdu accompanied the oppel then the whereaboyts of Ch'my Indifcn prosec|jtion q>l<<ff1<fl'l '•IIHCl) ffte<^<l'a|<?il< l?3ri^IT3I^?T <4a. C.J. SINHA. J for the appellant. Lawyer for the Stote. against the judgment of conviction and February, 2002 passed by the' 3rd £|ostar at Ja9dalpur in Sessions Trial i^dgment, the appellant has been convicted i^in Penal Code ond ^ntenced to undergo TTie oppellant .has also been convicted Penal Code and sentenced to undergo Vtears. ), in brief, is that on 30.6.2001 at deceased) was called by the appellant i^y will go to see Soncho AAela, on which lant and went to see the Mela and since )c|u were not known. The father of Chingdu P.T.O. 13! XI-HC-78 STi^rqirR'fi* (TOT W^T gitTR) ^^ S^'^IFTRpr, ®Tn«'l6,Rcliuy tn^fCfTS»lH|ch ^ 200 3TI^?TMaq»('i^i^yT) ^tiTWBfNsn^T 2.. namely Chamra made a search and in this regard, a Panchoy<)it was also convened in the village. The appeilant was present in the sa; •Hie fateful night, in between l back from Mela. When they r^ached near AAasiya Munda culvert, there was some quarrel between |l'hem, as Chingdu was making certain allegations about the theft on by putt'ing towe! around his nec|< and pressing the same over his neck. He also stated that when Chingdu the said culvert. On receiving t|iis information tiiey went near the yillage culvert and saw 1+iat dogs are |: coming out from the earth, U| Intimation (Ex.P-6) were re' Sarpanch namely Son Singh al Executive AAagistrate Shri K.L exhumed and a Panchnama (E?| qii<<I<i41-< HiiiiTttte^t'<R]'tt;i< ^iaif^Tsn^r to find out the whereabouts of Chingduii d Panchayat. He told the Panchas tiiat on to 4 clock, he <& Chingdu were returning him and therefore, he murdered Chingdu died, he buried the dead body just belovu (ulling the \eg of ahuman body, which'was (>on which Dehati Naiishi (Ex.P-5) <& Mer9 fcorded in the Police Station barbha. |so gave merg intimotion (Ex.P-7) to the lice regarding seein9of a d^ad body. Receiying this jnformation, the Station House Officer, Polic^ Station Darbha registered the F.I.R. (Ex.P-16) and left for the s^ene bf occurrence. In presence of the Sori (PW-1) dead body of deceased was ;.P-1) was prepared. After exhuming the dead body, 1+ie Panchas idenl|ified the dead body to be that of the deceased under Ex.P-2. The b^dy of deceosed was sent for postmortem examination tp 4he Primary l-1e)alth Centre, Darbha under Ex.P-3, where P.T.O. XI-HC-78 sn^T %T R-<i°b a^TSTI^TCTW ^ 3^'"!)|i|l<?1'i<, ®Tflti'l(o,RlCll'Hy *<1*1<<11 Sh*l|ch ^ 200 3TT^T Mach (licli^sl<^lir) ¥RnWHfeT3TI^T .'?,• Dr. A.&. More (PW-7) condu^ postmortem report Ex.P-12. Dt| noticed six injuries on the b decomposed condition. While memorandum (Ex.P-20), in into possession under Ex.P-9 occurrence was prepared. During the course of m'{ Bhulku alias Sukru had helped of deceased in the above investigation, a charge sheet filed against the appellant he against co-accused Bhulku in Jagdalpur on 6.8.200t, who in Sessions, uuhere the file was was tnynsferred to 1+ss Co^ Jagdalpur, who dfter receiving The prosecution in ord accused persons examined as Sessions Judge recorded the Section 313 of Cr.P.C. on 7.2. bfQught against-them by the j^ted the postmortem and prepared the ring pc,stmortem examination, the doctor >^>dy of deceased and found the body in in police custody, the accused gave purdpcmce o-f which towel Aspade were taken Site plan (Ex.P-18) of the place of +i.iiri'f'!|1-f miRTf ff te^'<Ri+t;K ^srf^TSTI^T the )'esti9ation, it wos found 1+iat co-occused appellant in disposing of the dead body n^aainer, therefore, after completion ;of ijnder Sections 302 <& 201 of the IPC was irein and under Section 201 of the IPC Court of Judicial Ma9istrate 1 Class, Hiirn committed the ca^ to the Court of heceived on 17.8.2001 and thereafter, it of 3 Additiona! Ssssions Judge, Ithe file conducted the tr'ial. l^r to establish the charge against the many as 11 witnesses. The Additional statements of cxccused persons under p002, in which they denied the material brosecution and ultimately after- hearin9 P.T.O. Coil'rt 1 XI-HC-78 sn^r q;T R-ii°b (raT3flt<:!]Shtllf 3^ •<ii<iici<i, ^Tfly'is, Rtcii^y ^IHC^T Sh*11<ft ^ 200 311^1 <4S|tt) (>y<!^q<<ff) s^nwHfscTw^T 1+ie ar9uments of counsel fo^" Judge convicted and senten|c aforementioned. However, h( Sukru of the charge under Se^ In this case, the convicl of evidence; 1. Testimony 2. Extrajudicial appeliant before 3. Evidence of PW-4 that his son Chin9|d pretext that they Learned counsel for Shanti Bai (PW-3) is not re| examination that, in fact, si^e deceased and the appellant. A( by the oppellant before PW-! she argues •rtiat the evidenc^ are not fully relioble, os th( discrepancies. About the evi •this witness has stated in h| qrrofa^T HTticffffteA ^resrc EtiSrf^PTSn^T bo1+i the sides, the Additional Sessions :ed the appellant herein in the manneft acquitted the co-accused Bhulku aiia& :tion 201 of the I.P.C. •ion of the oppeilant is based on three sets of eyewil^iess namely Shanti Bai (PW-3) confe|ssion said to have been made by the Soilisingh (PW-2) & Thulthuli (PW-5); cnd ;hamra, father of deceased, who statad iu had gone wi1+i the appellant on ttie going to see Soncha mela. ane tlhe oppellant argues that the evidence of (iable, as she has admitted in her cross- had not seen the quarrel between the ^ far as the extra judicial confession made Son Singh & PW-5 Thulthuli is concerned, of Son Singh (PW-2) & Thulthuli (PW-5) i|eir evidence suffers with many material i|dence of Chamra (PW-4), she argues that Is cross-examination that his son has not P.T.O. XI-HC-78 ST^T^irf^IW (raT3nq?Tsbi|]«t) ^r' 73f rf<l<(Krl<l, aTflw'ls, Islfliuy *1IH^II SS»<1<*> W[ 200 311^1 4aqi ('i^^'t'T) WITW^fStTsn^T -s"' UlttQ 9one a!l alone vuith the appetl have also gone with them, be appiied in this case. On the other hand, leo| •riie judgment of conviction pa| We have heard Ms. Ravindra Agarwal, Panel Lawy^ records of sessions trial and Shantibai (PW-3) say^ fatefut day she had also gon^ p.m. she was returning back Budri, when they reached quarrel. She has further Chin9du. In the last stated that Chingdu died on Para-4 of her cross-exciminl disclosed about the quarrel bi the villa9e. She has specifico^ examination that she had not After considering tiie to us that, iri-foKt, her s-| appellant and the deceased ^int, but many other persons of the viilage :, theory of last seen together- cannot ntor sltated sentdnce examinbtion cbi'iilci'ill-i >iiti<'iTfftet?r<,(:3i<^i< ^srf^tna.n^T thehefore jrned Pcnel Lavuyer for 1+ie State supports o^ssed by the Sessions Court. Tiwari, Advocate for appellant and Mr. sr for the State at length and perused the i^npU9ned jud9ment. in her examination-in-chief that on the to see (Soncha, in the night at about 8.00 from Goncha along with her friend namely the culvert, they heard the cries of that the appellant was fightin9 with of her excmination-in-chief she has (^ccount of assault given by the appeliant. Ir< she has stated thot she has not s^tween accused and deceosed to anybody in .o^lly admitted in the tast part of her cross- ^een •rfie appellant assaultin9 Chin9du. entire evidence of this witness, it appears (•atement regarding quarrel between the 4 further regarding the fact that she hold i. <a; i^l w P.T.O. XI-HC-78 3ii^T^rR^i<t> traTsn^Tsbiiti 'ssi "Mi<<i<n<<, aiTn<-i'i<B, RiciK-iy *11*1WI Sh*1|td ^R; 200 3<l^t 4^+ ('iyi^'Kiff) SRn'w^fscra.n^T 6 seen 1+ie appeliant assaultin reiiable. In fact, in view of examination ttiat she had not makes it clear that she had night. Therefore, in the witness does not inspire appellant with the crime in As far as the extraji) before PW-2, Son Singh & P\H{ 2) has stated in his Panchayat before making the^ Chamra, father of deceflised, his son Chingdu is missin9 s stated that on the said day appellant bashmu, his son left since tlien his whereabouts Dashmu was present in the however, when the Panchoyal) murdered Chingdu by using implicate him by alleging stated that appellcint has spade and with the help of opirfion conflidence qu^stion, traji^dicial examitiation the-flt alsb <tiNf<n<fl'1 HTfTcff ^'^t^ <f^l^l< ^;3ri^irgT^r i^ the deceased, does not oppear to be 1'he clear admission made by her- in cross'- ^een the appellant assaulting the deceoised;.. hot witnessed the incident ori the fateful of the Court, •ttie testimony of this of the Court so QS to connect the i, ds her testimony is not reliabte. confession made by the appellant f-5, Thulthuii is concerned, Son Singh (PW- i-in-chief •t+iat there was a village report to the potice. In thot Panchayat, ^tras olso present. Chamra has stated that |nce Soncha Bazar day. t-1e has further at about 8.00 p.m. his son wos caited by the house along with appellant Dashmu and not known. PW-2 has also stated that P^tnchayat, but he has not stated anything, enquired from him, he admitted that he [a towel because Chingdu was trying to of shoes. PW-2, Son Singh, has further stated that thereafter he brought one that spade he buried the dsad body of RTO. qre <--i I 1 ^ XI-HC-78 an^rqiTi^iN; dWSn^Tshxi* ^ 3^ "!<l<llc1<l, tSiTnU'16, RlC'll^y *II*K*II aiHra» W[ 200 3<1^1 4dch (t<:lt^sti^ff) ??(ITW;ElfeT3n^T r^ Chingdu. In the cross-exam arrival of police as also that was in search of the friends was arrested and was taken •=t)i<<(<-]41-i 4iti<^T^:fec^t<Ri-t»;i< ^!3rf^q'3:f1^?T ,nation, this witness has stated about th& bf Naib Tehsiidar' & Sub Divisional Officer in the village. He has admitte^d vide Para-4 that before arrival of these persons, he was not knowing c^s to who had murdered Chingdu. The police ^)f the deceased. Thereafter the appeliant ^o the police station. After the arrest of appeiiant, dead body of decei^sed was got exhumed by 1+ie police and at •tiiat time, in presence of •Hi^ police, the appellant made extfa Judiciai confession about the commis^ion of crime in question. He hds fur1+ier admitted that before the sait] ond he does not know anythin^ In the light of afores4«dadmissions made by PW-2, Son Singh in his cross examinntion, it is no^ established that there was any Panchayat in the viiiage and a confes^ confessional statement, whic| appellant in presence of the Other witness namelyl Chingdu was not found in the near the vitlage culvert. One incident, no Panchayat etc had takeh place about it. ion was made before them. In fact, ths 1 this witness is saying, was made by the oolice & other officials of the State when the dead body was exhumed ^y the police from the place of occurrence. Thulthuli (PW-5) has stated that when village, a search was made by his father to trace out the whereabouts <|>f Chingdu. After 9-11 days on Sunday, it came to the notice of the v^lagers that dead body of Chingdu is lyiihg Hari Nag, resident of Village Keshapur hiis P.T.O. ^ XI-HC-78 sn^T^TR-fi* (WT 311^1 sht| ^? 3^ '^ww'f, Q-^WIG, [wwy. *T1WfTSb*<|cft W^ 200 Sii^i Macti ('i?'^'5'^) ?T(ITW:Hf?(f3n^T informed him this fact, on Villa9e Patel etc. Thereafter, •rtie spot, he could only see one of the body were buried in the| Chingdu, informed him thathis and since then his son is misj examination-in-chief regardini appellant before him. However declared hostile by the prose had asked Dashmu, he made Chingdu. In his further admitted that police had extrajudicial confession befor present 1+)ere. In view of tiie above ev| it cannot be said that any appellant in presence of judlcial confession being independently before thsse been established by •riie two witnesses regarding extnj <tll<<F<1<fl-f IIHCll fffWt'<Rl'KK ^sri^iTsn^r wtiich he advised l-1ari Nag to inform the il (ie went to •rfie place of occurrence and on leg of the dead body because other parts earth. On being asked, Chamra, fa1+ier of son was called and taken by the q}pellant ing. This witness has not deposed in his i^ extrajudicial confession made by the in the cross-examination, after he being i^ution, he states that when the villagers cbnfession before them that he had killed cro^s-examination by the defence. he Has t4ken the accused with them, he ma.de sfor^ the police and at that Time he was also idence regarding extrajudicial confession, :onfession was voluntarily made by the theke two witnesses. The factum of extra mi+Je either in the Vitlage Panchayat or tt^o witnesses or any other villager has not prose^ution in this case. The evidence of these extr^judiciat confession does not appear to be P.T.O. r. iW i•t sif XI-HC-78 sn^rwR-iitti cTS!TT3n^Tsh^icb Sl i4. @ 3^ "'iwM^, w-^twie, fslcll'y^ *ll*4Wl sb^lcb ¥Fr 200 311^1 <4a<»> (>yfjGI<{IST) S^ITWHfN'W^T -^ reasonable and trustworthy tf the said evidence. As far as the evidence of deceased namely Chamra this witness has stated tiiat son had gone along with the q: to see Goncha, but in the fact, he himself had not se4 rather his wife had told appel!ant. He has specificall^ along with the appellant, he also admits in Para 3 of his the village had also accomf gone with him. This fact itsel For drawing <m inference 0^1 essential condition is that t(i exclusive company of accused hwe been seen by anybody after a close range of tinne appellant for the last time. theory of lost seen togethe^ (P|W- wrfcTifrT inrRfr'if fec^ rfSresrc ^srf^ITSn^T ^ base the conviction of the oppeilanf' on ]pf last seen together giyen by the father (P|W-4) is concerned, in examination-in-chief ^t aboutS.OO p.m. in the fateful night his peliant on thepretext that ttiey are goin9 crbss-examination he has admitted tiiat, in \.n his son goin9 along with the appetlant that Chingdu had gone alo.ng with the admitted that when Chin9du was going not present in the house. Moreover, he 4'oss-examination that many other boys of the appellant when the deceasedi had breaks the theory of last seen to9ether. the theory of last seen togel+ier, the ic deceased must have been seen in the Ifor the last time, thereafter h®should not itse and ultimately his dead body is seen :rom the time he being in the compony of Tierefore, in the opinion of this Court, the is completely demolished by the cross- P.T.O. hi* wbs parfied 3^'"i<l<<li'l<<,»Tn<d'16, Rldiyy 311^1 <4aw (yi^qqff) 311^1 ^TR-ficb tWTSI^Tshliti RoshcBi/- 5RiT8[rcgf?(T3;n^r colnfession examination of Chamra (PW-4D totiie prosecution. In -Hie facts and prosecution has not been abl^ reasonable doubt either on] evidence of extra judicial Therefora, the finding of tl^i commission of offence under sustained. as the same is not| produced by •tiie prosecution. In the result, the Conviction and sentences imp4sed 201 of the I.P.C. are hereby charges. He be set at libsr'^y case. Sd/- L.C.BHADOO Judge +l-'lt7f'in-< 4|tlflTir'fgcA<RlHK ^STf^ETSn^T and same is also not helpfulor supportingj t:ircumstances referred to <ibove, the to prove the guilt of appellant beyond all the evidence of eyewitness or on the or on last seen together theory. )e trial court convicting the appellant for ISections 302 & 201 of the I.P.C. cannot b® based upon the cogent & reliable evidence o^peal succeeds and the same is allowed. on The c^pellant under Sections 302 & ^et aside and he is acquitted of the above forthwith, if not required in ony other Sd/- Sunil Kumar Sinha Judge •TC;" P.T.O. ^.^ya v.sF/-/