HIV-3H {:QURT QF (:HHATTISFMRH AT BI! A5PUR DIVISION BENCH: HON'BLE MR. DHIRENDRA MISHRA & HON'BLE MR. R.N. CHANDRAKAR. JJ' CRIMINAL APPEAL NO.475/200$ (Crimina! Appeal Ufs 374 (2) of Cr.P.C’) APPELLANT Beko Manglui son of Budhodii aged 44 (In jail) years, resident of Viliage Baiud Baiepam, P.S. Danfewada, Disfr'icf Dan'fewada (CG) Vs RESPONDENT Sfa're of Chhu‘r‘risgarh, Through Police S‘fa'i'ion Danfawada, Dis‘h‘icf Danfewada. & CRIMINAL AP?EAL NO.476/2006‘ (Criminal Appeal U/s 374 (2) of Cr.P.C.) AWELLANT. Karmmi Rama, son of Soma, aged 48 (In jai!) years, residenf of ViHage Balud Baiepam, RS. Danfewada, Disa‘.kf Damewada (CG) Vs RE5PONDENT Sfa‘re of Chha‘l'fisgarh, Through Poiice S‘ra‘rion DanTewada, DisTricT Dani'ewada‘ Present Mr. Abhijee‘i‘ Sarkar, Advaca’re for appeilanf-Beko Manglu in Cr. Appeal No‘475/06. Mr. Rajkurnar Gum-a, Advoca‘re for appellan‘r—Karmmi Rama in Cr. Appeal No.476/06. Mr. Ashish Shukla, Govt Advocafe for The responden‘r-S‘rafe. ORAL JUDGMENT (23rd amber, 2009) Dhirendm killshra. J: 1. Criminal Appeal No.475/O6 preferred by appellan‘r-Beko Manglu & Criminal Appeal No.476/06 preferred by appellanT-Kar‘iami Rama are being disposed of by This common judgmen'i' as boi‘h The appellan‘rs have preferred ‘l’hese appeals fhrough The SuperinTendenTi CenTral Jail; Jagdalpur againsT The JudgmenT daTed 02.02.2006 passed in 5.T. No.141/2005 whereby learned AddiTional 5essions Judge; DanTewadai DisTricT SouTh BasTar has convicTed Them under SecTion 302 of The IPC \,_, k)' @ and senfenced each of Them f0 underao imnrisonmem‘ for life for causina J r a homicidd dea‘l'h 6f deceased Buffu. 2. Case of fhe prosecufion, in brief, is Thaf on 7.6.2005 around 10.00 am. The appelianfs and co-accused Beko Laxman ég Kar'rami Bhima alongwh‘h Kamlai wife of apgellanT—Manglu; came f0 deceased Bu‘ru and Took him .fo Village Murki for witnessing Devi—jafr‘a. All 1'he four accused persons and Kamla refurned village in The evening a‘r 7.30 p.m., however, deceased Bu‘ru did no‘r reiurn home. On The nexi‘ day, his son Arjun (PW-1) along wi‘l'h villagers wen‘r in search of Bu‘ru and found his dead body befween Village Murki (Si Balud in Malvi-beda foresf near bushes. The deceased had sds‘rained abrasions over 'ihe face; There were injuries presem‘ over his neck and his scrol’um was swollen. 3. Panchaya‘i was convened in fhe village and Thereaffer Arjuni son of Bum; wen? To Police 51'a1'ion Dan‘l’ewada and lodged Deha‘ri Nalishi (EXP-6) d: Merg Infimafion (EXP-5) against 'l'he unknown persons on 8.6.2005 around 8.30 pm. The police proceeded for scene of occurrence; performed inques'l over fhe dead body of The deceased vide Ex.P—3 in ‘rhe presence of The wi‘inesses. Dead body was sen? for au‘ropsy To Disfric’r Hospifali Danfewada where Dr. Vijay Karma (PW—8),. conduc‘red posfmor‘l'em and gave his reporf vide EXP-17. Rajesh I‘vlishra (PW-6), Halka Pa‘rwari, prepared panchnama and nazri naksha of EXP-15 di Ex.P-16 respeci’ively. Invesfigafing Officer also prepared spof map of EXP-10. 4. Affer complefing invesTigafion, charge sheef was filed in fhe Cour‘l of learned Chief Judicial Magisfra‘l'ei Damewada, who in Turn commif‘l'ed The case fo learned Sessions Judge; Dan'l'ewada from where learned Addifional Sessions Judge received The case on Transfer for Trial. Learned frial Cour? framed charge under 5ecfion 302 of ’rhe IPC againsf ‘rhe accused/appellanfs for commi‘rfing homicidal deaTh of Bu‘ru. They abjured Their guilt The prosecu‘rion in order To esfablish 'rhe charges againsT 1'he accused/appellan‘rs examined eigh'r. wifnesses in all. Thereaffer, sfafemen‘rs, of The accused/appellanfs were recorded under 5ec1‘ion 313 of -\\V \. The Cr.P.C. in which 1'hey denied The circumsfances appearing agains‘r fhem in fhe prosecu’rion case and pleaded innocence & false implicafion. 5. Learned friai court affer hearing argumenfs of learned counsel for The respecfive parfies; convicted and sem‘enced The appellanfs herein; as aforemenfioned. 6. Homicidal decd'h of deceased BuTu is noi' in dispufe. Even o‘lherwisei from ‘rhe evidence of Dr. Vijoy Karma; who hos conducied posfmor'rem and proved his repor'i of EXP—17 wherein he observed; The body was lying in supine condition Bo‘rh fhe eyes were closed: Pupil fully dila‘l’ed, Cornea lazy, Bleeding from mou-ih, Tongue be‘l’ween bofh The Tee‘rhi Rigor mor'l'is only presenf in lower limb Lacerafed wound over lef'l' side of scro‘ium with rupture of leff fesi'icle. There is bluish coloured mark over fron‘r of neck and along wifh side of neck. There is frac‘rure of cervical car‘rilage wi‘rh displacemen‘i' of cervical verfebra. <31, opined ‘i'ha‘l' cause of dea’rh was asphyxia and injuries susfained over scrofum were homicidal in nature; The homicidal dea‘rh of deceased is es‘iablished 7. Learned advoca'res appearing for The appellan‘l‘s submii' tha‘l’ fhere is no eyewii‘ness of The incidenT and The appellanTs have been convicTed on The basis of circumsTanTial evidence. The circumsTances relied'upon by The Trial courT are:- 1. The U§pellanTs Took BuTu on The preTexT of going To Devi- jaTra from his house. 2. Accused persons reTurned in The nighT, however, BuTu did noT >.re1'urn and his dead body found on The nexT daTe in The foresT. 3. There were injuries on The-neck and scrofum, which were homicidal in naTure. 4 Accused No 1 & 2 have vomn‘mr-Iiv made confesswn The? fhev murdered Bufu while refurmng from Jafra 5. There was fund reiq‘red dispu're be‘rween appellam‘ No.1 Mangiu and deceased Bum. I1- was fur‘rher argued fhaT none of The Circums‘rances relied upon bv The fria! cour‘f‘ has been es‘l’abllshed durma ‘mal The aHeged ex‘rraJudicml confessmn before Blrbol (PW-2) s: Ramnmh (PW~3) is suspicious and doubtful as if is alleged fhm‘ confession was made in The Panchava? and onlv affer fhe Panchavaf Ariun (PW-1) and ofher Villaaers wen? 1'0 Dohce sfafion and aave mera mhma‘hon and lodaed Dehah Nalishi however The facf reaardma exlraiudimal confession does no? find place eri'her in merg mhma‘hon or Deha'h Nalishi lodoed bv ArJun (PW—1) Referring ‘ro evidence of Village Ko‘rwar Somdu (PW—7) if was argued Tha‘r offer fhe reporT was lodged The police came To The Village and called the annellan‘l's and ofher Villaaers and Thev were severelv bea‘l'en by The uolice and confession was ex‘rracfed bv the oolice in The Dresence of The Villaaers bv force IT was furTher araued ThaT anarT from The annellanTs and The deceased numbers of Villaaers had aone To WiTness The JaTra on The claTe of inCidenT and Therefore; The circumsTance ThaT The appellanTs wenT wiTh The deceased To wiTness JaTra cannoT be considered as incriminaTing circumsTance. IT was furTher argued ThaT The Trial courT has wrongly held ThaT There was some old animosiTy beTween appellanT Manglu and The deceased Thouoh no anv sneCific insTance of ouarrel has been CiTed bv PW-1 ArJun Reliance is placed on The JudgmenTs of The Honble Supreme CourT in The maTTer of STaTe of Madhya Pradesh Vs Nisar reporTed m 2007 AIR $CW 4015 and Brupal Vs STaTe of ChhoTTisgarh "Nenor1’ed In 2003 (2) C=G‘;L;J.. 68: 8. On fhe ofher hand; {earned counsel for fhe Sfa‘l'e has supported fhe Uiudgmenf of The Trial court He phced reliance in fhe maf‘l‘er of Bglg Ram Vs. .Sm're 9f Rgjgsmgn reported in AIR 1.995 5C 1.943. 9. We have heard learned couwsel for fhe par‘ries. We have perused The record as also *he impugned judgment 10.Ther'e is no eyewi‘i'ness To fhe incident and ‘rhe convici‘ion is based on The circumsfanfiai evidence. The firs? fwo circumstances reiied upon by fhe Trial couri‘ are Thm‘ fhe appellanfs (3i other accused persons wem‘ 1'0 wifness Devi-ja’rra on fhe fa’reful day a‘r aboui‘ 10.00 a.m. 1'0 village a» Murkii however; The appellanfs refurned in The evening; whereas; deceased did no? refurn home. 11. So far as fhese circumsfances are concerned; Arjun (PW—1); son of deceased; has deposed The above fact. however; This wifness and ofher wi‘rnesses have admi‘h‘ed fhaT on The da‘l'e of incidenT apar'f from The appellanT and The deceased, numbers of oTher villagers had also gone To wiTness The JaTra and excepT The deceasedi The oThers reTurned To village. The above circumsTances alone cannoT be considered as an incriminaTing circumsTance againsT The appellanTs unless The prosecuTion is able To esTablish iTs case by any aTTending circumsTance againsT The accused persons. 12. So far as The 3"! circumsTance is concerned, we have already held ThaT The deaTh of deceased was homicidal in naTure. 13‘ The only incriminaTing circumsTance againsT The appellanTsi according To our opinionk is The 4"” circumsTance i.e. The appellanTs made exTrajudicial confession. 14._Birbal (PW-2) has deposed ThaT he is Up-5arpanch of Village Balud. AfTer The dead body of BuTu was recovered from The forest. a PanchayaT was convened by Them. In The said PanchayaT, Manglu ég Rama confessed ThaT They murdered BuTu while reTurning from JaTra. In Paragraph No.3 of his cross—examinaTion, he has sTaTed ThaT afTer They lodged The reporT The police came To The village; whole villagers l\‘ \\.\. aaThered J There; The accused persons were also called. 'They wenT To \ L, lodge repom‘ affer Panchayaf. he nolice r Dersonnel r haci beafen Rama. Wife of appelkm‘r Rama &_ Manglu had informed fhe police Tha‘r Their husbands had confessed Thai fhey murdered Bum. 15.1mm“ (PW-4) is wife of Rama and she has been declared hoslile. 16.Somdu (PW-7) is Village Ko'rwar. He has deposed Tha'i' he was no‘r spresen‘r in The Panchayat He has been declared hos‘l’ile. In The cross- examina'fion by The defence; he has sTaTed ThaT afTer The police arrived in The village; The accused persons were ealled by The polic; Through him. He has also sTaTed ThaT accused persons iniTially denied having murdered BuTu, however; when The police personnel severely beaT Them, They confessed. 17. We have also perused merg inTimaTion (Ex.P—5) as well as DehaTi Nalishi (EXP-6) lodged by Arjun (PW-2) and from perusal of These documenTs iT is evidenT ThaT extrajudicial confession made by The appellanTs does noT find place in These documenTs and offence has been regisTered r againsT unknown persons. 18.In The maTTer of Nisar (supra); The Hon‘ble Supreme CourT while considering The convicTion based on exTrajudicial confession held in Paragraph No.8 (3g 9 Thus;- “8. IT is To be noTed ThaT The FirsT Inf'ormaTion ReporT was lodged much afTer The so—called exTra judicial confession was made. Evidence on record shows ThaT The body of Kandhai was lying exposed in The jungle and his laThi and Khomari were lying close—by; In The FIR (Exh P-1), There was no reference To The so-called confession by The accused. InformanT Bhaiyalal's explanaTion ThaT he may have forgoTTen To disclose This facT To The police while lodging in The FIRI is ToTally improbable and wholly unaccepTable. If in facT There Was any confession as claimed ThaT would have been The firsT Thing To be menTioned and noT ThaT There was suspicion of The accused being The assailanT. Raghvendra Singh Bagheli PW-12 had admiTTed ThaT The body of '\_I \ T Chherkoo was ‘ying abou‘r 100 paces from The dead body of > Kandhai. The High Cour? righ‘rly noficed Tha‘r no disdosure was necessary for Iocafing The dead body. The axe and The khomari were also lying close—by and even a casual search would have revealed ‘rhe dead bodies and The arTicles. The Chemical Examiner in his repor‘r Ex.P-37 had found Thai The axe was sTained wiTh human blood. Curiously, The blood group was no ascerTained. IT was; Therefore. noT possible To conclude ThaT The axe was used for killing The Two deceased persons. 9. Above being The naTure of evidence of prosecuTion wiTnesses, The High CourT was perfecTly jusTified in finding The prosecuTion version vulnerable, and The evidence scanTy To fasTen The guilT on The accused in a case where The prosecuTion version resTs on circumsTanTial evidence." 19.In The maTTer of Brijpal (supra), The Division Bench of This CourT, while considering The imporT of 5ecTions 24, 25 & 26 of The Indian Evidence AcTi held ThaT any self incriminaTory sTaTemenT made by an accused before The police is againsT The spiriT of SecTions 24, 25 & 26 of The AcTi Therefore; noT admissible. 20.IT is True ThaT convicTion can be based solely on The basis of exTrajudicial confession provided ThaT The confession made by The accused is volunTarily; prompT and The same inspires confidence. 21.In The insTanT case, from The evidence available on record, we find ThaT The confession was allegedly made in The PanchayaT convened afTer The dead body of The deceased was found and only afTer PanchayaTi Arjun and oThers; who parTicipaTed in The said panchayaT, wenT To lodge reporT in The police sTaTion. However; in DehaTi Nalishi as well as merg inTimaTioni The facT of making any exTrajudicial confessionby The appellanTs is missing. 22.We are unable To comprehend as To how This imporTanT facT of exTrajudicial confession was noT menTioned in The dehaTi nalishi; which \\was lodged afTer confession was already made. In These circumsTancesi \ we are of fine opinion fhaf fhe frial cour'f was no? Jusfified To base H's convic‘rion solely by relying upon exfmjudicial confession allegedly made before Birbal (PW-2) & Ramnafh (PW—3) and The Trial cour‘r ough‘r To have exfended benefi‘r of doub‘r fo The appellan‘ls. 23.50 far as ‘l‘he lasT circums‘mnce flm'l‘ There was an old quarrel be‘l‘ween appellanf Manglu and The deceased is concerned, in ‘l‘he absence of any specific defail regarding nai'ure of dispufe and lime of dispu‘re and The fad fha‘r fhe deceased v.olunTarily accompanied The accused persons, This circumsTance cannoT be considered as a moTive for commission of Crime. 24. In The result The appeals filed'by The appellanTs succeed and The same are allowed. ConvicTian of appellanTs under 5ecTion 302 of The IPC and senTence imposed under ThaT secTion are hereby seT aside They are Roshan/ acquiTTed of ThaT charge and They be seT aT liberTy forThwiTh; if noT required in any oTher case. e iiiiiiWW ' i Sdl— l NHSHRAT l l RN.Chandrakal omnENDRA Judge l l Judge