3am, m,W CNwA W m f. ..'....‘.m.0m§.‘ Hi 2001 mm (W) mmm mmm mmm mm WW #a'mm Criminal Apneal No.1051 [2002 APPELLANTS 1 . Bo Go D RESPONDENT Stai Thn Dis1 CRIMINAL APPEAL ul CRIMINA D.B.: HON’BLE SHRI LC BHADOO, J, £5 HON’BLE SHR ORAL (27 L.C. Bhadoo, J:- Shri K.K.Singh, Counsel for the appellants. Smt. Anju Ahuja, Dy. State. andvi Mooka s/o Mandvi Deva, ged 37 years, arkam Mala, s/o Deva Muriya, ged 37 years. residents of oyapara, nda, Domapal, District ewada(CG) ‘ erSHS 1e of Chhatu'sgarh, augh Police Station. Domapal, ‘rict -Dantewada. s 374 (2] OF THE CODE OF L PRGCEDURE [ SUNIL KUMAR SINHA. J. JUDGMENT 09.2007) Government Advocate for the T t‘;?1g am§§§ WWW , L, mwa§§gw This appeal is directed against the judgment of conviction and order of se atence dated 19.8.2002, passed by the 4m Additional Sessions Judge(Fast Track Court), Bastar, 'Jagdalpur in Sessions Trial No 25f2001 whereby, the 1earned Additioual Sesmons Judge aiter holdmg the accused/appellants gujl ‘ for comm1ss1on of the offence punishab1e under Sectio 302 read with Sectlon 34 of the IPC, sentenced each of e accused/appellants to undergo implisonment for life and o pay a fme of RS300] -, in default of payment of nne to fur r undergo R.I. for 6 months. The case of the rosecution in brief is that on 16.12.2000, the deceased Madvi Hadma and his Wife namely-‘ Heard. XLHc—7s 3am, m,W WA—W §i} m wt 2001 mvm (W) ;”3; HW,WW,W m m C” ~A$ . l 0 §l ..... WW (13W) WWW F 3’ WW wW $WW mmm wmm they came on the spot and thereafter, a village Panchayat was convened, in which, the accused/appellants namely— Mandvi Mooka and Markim Mara made extra judicial confession before the village Panohayat that they had committed murder of Madvi Hadma. Thereafter, the matter was reported in the Police Station Domapal, whereupon, Fiist Information Report EXP/1 was registered. Merg intimation was also lodged in the Poiice Station, —Dornapal. After registering the case, the Investigating Oii‘icer left for the scene of occurrence and after giving notices (EXP/5) to the Panchas, prepared inquest (EX.P]6) on the body of the deceased. He prepared Site Plan under Ex.-P/ 8 of the place of occurrence. While in police custody, accused/appellant Mandvi Mooka gave memo andum (Ex-PI 14) regarding the place, where the wood was kept, by which, the neck of the deceased was pressed. In ursuance of that, the wood was recovered at the instance f the accused/appellant-Mandvi Mooka under Ex.P/ 15. Bo y of Madvi Hadma was sent for postmortem examination o the Primary Health Centre, Domapal, where, Dr. Ut Kaushik (PW-3) conducted the postmortem on the body of the deceased and opined that the cause of’death was sudde cardio respiratory arrest due to fracture and dislocation o 2nd and 3rd vertebra along with dislocation of apiglotis and the injuries were ante-moxtem in nature. Heprepared postm Item report (EX.-P/ 2). pa. GRPRJ After completion of the investigation, charge sheet was flled in the Court of Judicial Magistrate First Class, Sukma, District Dantewada, who in turn, committed the case to the Sessions Judge, Jagdalpur from where the learned Additional Sessions Judge(FTC), Bastar, Jagdalpur received the case on transfer for trial. The prosecution in order to establish the charge against the accused/appellaits examined 5 Witnesses. The statements of the accused/appellants were recorded under Section 313 of the Code of Criminal Procedure, in which, they denied the material appearing against them in the prosecution evidence and stated that they are innocent and have been implicated in a false case. The accused persons also denied making any extra judicial confession. Learned Additional Sc ssions Judge after hearing the counsel for respective partii:s, convicted and sentenced the accused] appellants as aforementioned. We have heani Shri K.K.Singh, learned counsel for the appellants and Smt. Anju Khuja, learned Dy. Government Advocate for the State. In this case, there is no ocular or direct evidence to the incident. The Whole caste rests on the extra judicial confession made by the accused/ appellants before the Village Panchayat. In order to st the conviction on the extra judicial confession, the pro ecution is required to prove that FS/ZM t...r Wm (or‘ A 8 ?‘ )OS’l 'gi 200'2, mm (W) WWW 94‘ WW1§f§§éW $a‘mm (..Aqf’ ,Q.. w‘m (W) Wm‘ i‘!;; vi 2001 am$m§ WWW -gF mm f3€iW $edfcmm 'the extra judicial confession n lads by the accused,‘ appellants was voluntaly, true and prom pt. To establish the extra J has examined PW—l- Rajesh that in the Panchayat, Mand with Markam Mara committa also stated that he committedl the murder on account of land dispute between him and examination, he had stated but udicial confession, prosecution Knmar Nayak, who has stated; vi Mooka stated that he along 1 murder of Madvi Hadma. He mum, wife of the} accused} appellants. On say accused] appellants must ha Hadma, considering Deve’s s pressurized and enquired fro:1 the said incident and thereaft confession. V PW-2— Madvi Deve, wife that the accused/appellant judicial confession that on committed the murder of his stated that he committed the para 5 of her cross-examin: in the village. After seeing the body of the deceased, it Panchayat. It is stated MR? 1 “he deceased. In the cross— ;hat the accused persons were deceased threatened the ing by Madvi Deve that the ve committed murder of Madvi ‘"atement, the village Panchayat n the accused] appellant about er, they made the extra judicial of the deceased has also stated — Mandvi Mooka made extra account of land dispute, he brother— Madvi Hadma, he also murder at about 5-6pm. In ition, she has stated that the " Fanchayat Was not convened was decided to convene the by her that when the XI-HC—78 _ W accuse<i/appe]la11ts were pmssun'zsd and given béating by the villagers, then only they made extra judicial confession. PW-4 — Betti Ganga has turned hostile, therefore, on perusal and scruiinyof the evidence of PW-l Rajesh Kumar J' Nayak and PW—2 — Madvi Deve, it has come on record that in the met instance, their evidence disclosed that only the 1i Mooka made extra judicial evidence that the m Mara made any extra judicial 1r as Markam Mara is concerned, ce on record regarding his extra 1e village Panchayat. ldicial confession made by the“ Mooka is concerned, both the {ajesh Kumar Nayak and PW-2 ~ Madvi Deve have stated that on being pressurizing, threatening and accused/appellant Mand confession and there accused/appellant— Marka confession, therefore, as f: there is no iota of evider judicial confession before t' As far as extra jl accused/appellant Mandv: witnesses namely- PW-l f 1S 110 beating by the accused] appellant—Mandvi confession before the Village Panchayat. Therefore, the said extra judicial confession cannot be termed to be voluntary because, the same was made only after threatening. Even the Wife of the deceased—Madvi Deve has stated that the ’ accused Was threatened an Villagers, the Mooka had made extra judicial i beaten, and thereafter, he made the extra judicial confess n. The so called extra judicial confession made by the ccused/appellant Mandvi Mooka l W m .'.AW.O.X W 200'1, 311w m (W) WWW ammm mafsa am _ é, aim nma‘f fag“! ml? %Wm XI-HC—78 uu. w mmw WWW was not voluntary and based on this, the conviction cannot be rest. There is no evidence and material on record to corroborate the said extra judicial confession of the accused, has utterly failed to establish the 'fact that the accused/appellants are the persons, who committed the murder of of the trial court, accused/appellants for tlfe oii‘ence under Section 302 read with Section 34 of IPC for committing the murder of Madvi Hadma, cannot be sustained. in the result, the appeal succeeds and the conviction and sentence imposed upcn the accused] appellants namely- Mandvi Mooka and Markam Mara under Section 302 read with Section 34 of IPC are set aside. They are acquitted of the above charge. It is stated that the accusedjappellants are in detention since 20.12.2000, therefore, they be set at /,,, Sdl- SUNIL KUMAR SE‘THA Judge ‘ as such the prosecution ”he deceased, therefore, the iinding donvictjng and sentencing the liberty forthwith, if not req aired in anyW Sd/- L.C. BHADOO Judge ' sunita