DIVISION BENCH HON BLE SHRI T P SHARMA AND ’ HON BLE SHRI R N CHANDRAKAR, JJ Criminal ApQeaI No.991l2004 Katwan Smgh S/o Rauda Gond aged about 48 years res1dent of Village Chandell Pohce Station Pratappur, District Surguja (C,G.) VERSUS NDENT The State of Chhattisgarh Through Police Station — Pratappur District — Surguia (Chhattisgarh) CRIMINAL APPEAL UNDER SECTION 374 (2! OF THE CRIMINAL PROCEDURE CODE ' Appearance: Mr. Abhya Tiwari, counsel for the appellant. Mr. Sandeep Yadav, Dy. G.A. for the State. APPELLANT (in jail) ORAL JUDGMENT (Passed on 26.1 1 .2010) Per T P Sharma J .. I. Challenge in this appeal is to the judgment of conviction and orde of sentence dated 30.10.2004 passed by 2nd Additional Sessions Judge, Surajpur, District Surguja ,(C.G.). wherebyand Whereunder after holding the appellant guilty for commission of culpable homicide amounting to murder of Bhondu the Court below convicted the appellant under Section 302 of the l P C and sentenced him to imprisonment for life With fine f _ Rs 1000/— and in default to undergo further 1 year R I 2. , The conviction is impugned on the ground that without any iota of evidence, the Court below convicted and sentenced the appellant’as- aforementioned and thereby committed illegality. 3. As per the case of the prosecution, On fateful day of 18.04.2004 before 5.00 p.m. the appellant quarrelled with Bhondu on account of collection of Mahua and assaulted him by stick and caused his death. Dead body was seen by P.W.2 Surgesh Kumar and other persons. While HIGH COURT OF CHHATTISGARH : BILASPUR RESPO r o While they were going to police station for iodgihg F.I.R. the appeiiant met them on way and made extra judicial confession before them that he has caused homicidal death of Bhondu. P.W.1 Deodhari lodged F.l.R. vide Ex.P.1 in which has mentioned the fact of extra judicial confession and also recorded merg intimation vide Ex.P.Z. investigating Officer left the scene of occurrence and after r summoning witnesses vide Ex.P.10, inquest over the dead body was ‘prepared vide Ex.P.11. Spot map was prepared vide Ex.P.3. Bloodstained and plain soils and one sarai stick were recovered from the spot vide Ex.P.5. Dead body was sent for autopsy to Community‘ Health Center, Pratappur where Dr. B.K.Manvani P.W.4 conducted autopsy vide Ex.P.6 and found the following injuries: 1. One lacerated wound of 1.1 x 0.4 x 5 cm. on left eye. Left eye was cashed; .. . ; 2. Lacerated wound of 1.3 x 0.5 x 0.6 cm. over left forehead. Bone of forehead was broken into pieces. ~Mode of death was shock and death was homicidal in nature. atwari prepared spot map vide Ex.P.12. Seized articles were sent to Forensic Science Laboratory,’Raipur vide Ex.P.17. 4. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure (in short ‘the Code’). After completion ofinvestigation, charge sheet was filed before the Court Judicial Magistrate First Class, Pratappur, who in turn committed the case to the Court of Sessions, Ambikapur. Learned Additional Sessions Judge has received the case on transfer for trial. . 5 In order to prove the guilt of the accused, the prosecution xamined as many as 15 witnesses. Accused was also examined under Section 313 of the Code in which he denied the circumstances appearing against him and innocence and false implication was pleaded in crime in question. 6. After affording an opportunity and hearing the parties, the learned Additional Sessions Judge convicted and sentenced the appellant as. aforementioned in,paragraph .1.(supra). 5 P e 7. 'Mr Abhya Tiwari learned counsel for the appellant and Mr Sandeep Yadav learned counsel for the State are heard Judgment rmpugned and records of the Court below perused 8. Learned counsel for the appellant vehemently. argued that conviction is substantially based on extra judicial confession of the appellant made before PW1 Deodhari and P W2 Suresh Kumar but .the same rs not admrssrble In evrdence in accordance wrth Section 25 Section 26 and Section 27 of the Evrdence Act and therefore in absence of any evrdence against the appellant, conVIction of the appellant is not sustainable under the law. 9. On the other hand, learned counsel for the State opposed the appeal and submits that the Court below has rightly convicted and sentenced the appellant 10. ln order to apprecrate the arguments advanced on behalf of the parties we have examined the evrdence adduced on behalf of the prosecution ln the present case homICIdal death as a result of fatal injuries over the body of Bhondu has not been substantially disputed on behalf of the appellant but on the other hand established by the evrdence of Dr B K Manvani PW4 and autopsy report Ex P 6 and death was homiCidal in nature. . As regards complicity of, the appellant in crime in question, conviction of the appellant is substantially based on the evidence of' P.W.1 Deodhari and P.W.2 Suresh Kumar before whom the appellant made alleged extra judicial confession Other witnesses PW3 to P W 15 have not deposed anything against the appellant relating to comrmssron of offence by the appellant As per evrdence of P.W.1 Deodhari, when he came to know the murder of Bhondu, then he was going~to~poiice~station-for lodging-the'report alongwith'Suresh and other persons. As soon as he reached police station, he met with appellant who was in police station, then the appellant told him that on account of Mahua theft he has committed the murder of Bhondu PW1 lodged F l R Ex P 1 and recorded merg intimation vrde Ex P 2 This fact was mentioned by police authority ln para 7 of his cross— examination P W1 Deodhari has specrfically deposed that after lodging the re h saw th us n polce saon and befor . 11 port e e acced i i tti e lodging report he did not see the appellant In police station Another Witness PW2 Suresh Kumar has also deposed In his ewdence that the appellant made extra JudICIal confessuon to hlm In police station ln paragraph 4 of cross examination he has spectfrcally deposed that accused has not made statement to hlm but has made statement to police before hrm. Thrs shows that alleged confess10nal statement has been given by the appellant’in the police station before police authorities, which is not admissiblejn terms of Section' 25 Section 26 and SectiOn 27 of the Evidence Act Except this evrdence prosecution has not adduced any other evrdence against the appellant to connect the appellant in crime in question 12. The aforesaid evidence of P.W.1 Deodhari and P.W.2 Suresh Kumare relating to extra judicial confession is not admiSSible in eVidence ConVIction of the appellant is not based on legal eVidence Consequently, conViction of the appellant under Section 302 of the IP C and the sentence awarded thereunder is not sustainable under law " 13. For the foregoing reasons, the appeal is allowed. Convic’tion' of the appellant under Section 302 of the l‘P.C. is hereby set aside. He be set at liberty at once. He is in custody. He be released, if not required in any other case. 'T.P.SHARMA judge ‘k Sd/— RN. Chandrakar Judge