@ HIGH COURT OF CHHATTISGARH BILASPUR D.B. Hon’ble Shri Rajeev Gupta, C.J. & Hon’ble Shri Sunil Kumar Sinha, J. Criminal Appeal No.950 of 2003 Kunjami Hurra Vs. State of Chhattisgarh JUDGMENT For consideration Sdl- Sunil Kumar Sinha Judge 2g 08.2008 Hon’ble Shri Justice Raieev Gupta 3' W Post for 2 .08.2008 Sdl- Sunii Kumar Smha Judge / @ HIGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH: HON’BLE SHRI RAJEEV GUPTA, CJ & HON’BLE SHRI SUNIL KUMAR SINHA J. Criminal AQQeaI No. 950 of gm APPELLANT Kunjami Hurra, Son of Kunajami Deva Muriya, aged 30 years, resident of‘Kunajampara, Chintalnar Police Station Tongpal, District D’éntewada, Chhattisgarh Versus RESPONDENT State of Chhattisgarh, Through P.S. Tongpal, Distt. Dantewada ICriminaI AQQeaI under Section 374 (2) of the Code of Criminal Procedure,1973) “ Appearance: None for the appellant. Shri Ashish Shukla, Government Advocate for the State. JUDGMENT (29 .08.2008) Following judgment ofthe Court was delivered by Sunil Kumar Sinha‘ J. (1) This appeal is directed againstthe judgment of conviction and order of sentence dated 25.4.2003, passed in Sessions Trial No. 447/2002 by the Sessions Judge, Bastar, Jagdalpur, whereby, the appellant has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life. "r (2) The case of the prosecution is that the appellant-Kunjami Hurra and the deceased-Kunjami Podiya were the real brothers. On a dispute in relation to 2 Criminal Appeal No.950 of 2003 obstruction of irrigation water in the agricultural field, some quarrel took place between them on 6.9.2002‘ in which, the appellant gave Tangia blows on the neck and head of the deceased, as a result of which, the deceased died on the spot. The further case of the prosecution is that thereafter, the appellant made an extra judicial confession before his uncle-Kunjami Hunga (PW-2) and also before the village Panchayat and the matter was reported to the Police on 7.9.2002 by Kunjami Hunga, on which, a First Information Report Ex.P/1O was registerfed. ln the First information Report, he mentioned the names of 5 eye— witnesses i.e. Chamru, Bare w/o Chamru, Gajendra, Budhra and Potiye w/o Hurra. j, c (3)‘ The Investigating Offcer reached to the place of occurrence on 8 92002 He gave notice (Ex P/2) to the Panchas and prepared Inquest (Ex.P/3) on the body of the deceased and the dead body of the deceased was sent for postmodem examination to the Primary Health Centre, Tongpal. The postmortem examination was conducted by Dr. L.L. Dhankar (PW-5), who prepared his report Ex.P/8. He noticed one stab wound on the left parietal region in size of 11/2“ x 1" x 11/2“, one stab wound on/the left occipital region in size of 1/2 “ x 1/8” x 1" and one contusion near the left ear in size of 11/2" x 1A ln internal examination, he found that there were fractures of parietal and left occipital bones, brain membrane was ruptured and clotted blood was present. He gave his opinion that the cause of death was shock and haemorrhage, caused by severe head injury and it was homicidal in nature. ln‘further investigation, memorandum of the appellant was recorded under EX.P/4 and Qin pursuance of the memorandum; Tangia was seized from the possession of the appellant under Ex.P/5. Other articles were also seized and were sent for chemical examination to the Forensic Science Laboratory, Raipur, but the report was not received. i a 3 £3 Criminal Appeal No.950 of 2003 (4) After completion of the usual investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Sukuma, who in turn committed the matter to the Court of Sessions Judge, Bastar, where the trial was conducted and the appellant was convicted and sentenced as aforementioned. (5) The conviction of the appellant is based on the evidence of extra judicial confession of the appellant before his uncle-Kunjami Hunga (PW-2) and‘ also before the village Panchayat, for which, Balkrishan (PW-4) was examined.‘ - L (6) £Shri Ashish Shukla, learned Government Advocate supported the conviction recorded by the trial Court. (7) We have perused the records of the Sessions Trial and have also heard the learned Government Advocate at length. (8) Admittedly, the case of the prosecution was based on the eye-witness account of 5 eye-witnesses, who were also‘named in the First information Report. Out of these 5 eye-witnesses, 2 were examined in the Court, but they did not support the case of prosecution. ‘ They are PW-3 — Chamru and PW-7 — Kunjami Budhra. PW3- Chamru deposed in the examination—in—chief that the appellant assaulted the deceased with Tangia, but in the cross examination, he admitted that he was working along with his wife in his fields and in the evening Gajendra called him and when he went towards him, he saw that the dead body of the deceased was lying in the field and he took the dead body of the deceased to his house. PW—7- Kunjami Budhra has completely turned hostile and in the examination-in—chief itself, he deposed that he does not know as to how the incident occurred. {7 4 Criminal Appeal No.950 of 2003 (9) PW-2- Kunjami Hunga is the witness of extra judicial confession. He deposed that on the date Qf incident, he was in a different viliage and when he returned back‘ the appeliant told him that he has murdered the deceased. Thereafter, a village Panchayat was convened, but nothing has happened in the Panchayat. He has very specifically deposed that the appellant had told him regarding murder of the deceased on the next day after his return from the other village, where he had gonef' in the cross examination, he admitted that heahfad gone to village Chidpal, which is at a distance of about more than 15 kms and it is sorrect to say that when he returned back from Chidpal, in the afterrkoon of the‘subsequent day, the village Panchayat was going on and in that Panchayat, the appellant-Kunjami Hurra did not disclose anything. If the entire version of this witness is taken to be correct, then the story that the appellant made an extra judicial confession before him prior to the village Panchayat, appears to be doubtful, as he says that when he returned back from village Chidpal, he saw that the Panchayat was going on and in that Panchayat nothing was disclosed by the appellant, which shows that earlier to the village Panchayat, he had no opportunity to meet the appellant and his version that the appellant made an extra judicial confession to him prior to the village Panchayat, as he claimed in the examination-in-chief, cannot be believed. (10) PW-4 — Balkrishan, who has been examined regarding disclosure of the appellant in village Panchayat, has turned hostile. In parasZ of his examination-in-chief, he deposed that a village Panchayat was convened; he was present in the Panchayat; the appellant was also present in the Panchayat; but the appellant did not disclose anything in the Panchayat. When he was cross examined by the Public Prosecutor, he admitted in para 6 that the appellant had made an extra judicial confession in the said 5 Criminal Apgeal No.950 of 2003 Panchayat, saying that he had killed the deceased by giving axe blows. However, when he was crpss examined by the defence, he asserted in para 7 that the appellant had not disclosed anything regarding murder of the deceased. Thereforeron the evidence of this witness and also in light ofthe evidence of PW-2 — Kunjami Hunga, it is apparent that the prosecution could not establish that in fact, the appellant had made an extra judicial confession in the village Panchayat. r s (113”: lt is a settled principle of law that if the evidence of extra judicial confession is reliable, trustworthy and is beyond the shadow of doubts, the same can be made the sole foundation for recording the conviction of the accused and the Court, by way of abundant caution, may look for some corroboration. In the present case, after going through the entire evidence of PW-2 and PW-4, we are of the opinion that the prosecution could not establish that the appellant made an extra judicial confession either before PW-2 — Kunjami Hunga or in the village Panchayat,’ as contended by the prosecution. Therefore, the conviction of the appellant‘mainly based on the extra judicial confession, cannot be sustained. £ (12) ln the result, the appeal is allowed. The conviction and sentence imposed against the appellant are set aside. The appellant is acquitted of the charges framed against him. (13) It is stated that the appellant is in jail since 9.9.2002, therefore, he be set at liberty forthwith, if not required in any other case. Sunil Kumar Sinha Judge rue ”is -,. , f Sd/_ fggeafg sdr hief Justice sunita C