^"-—^7" CF0000062908 IN TES HIGH (JOUHT OP JUSIG&IU-BS OF M.P. Al' JASAIPDS .Oivjsion Bench ( rfr.r, ss^ ORD'IIEAL APPEAL N0. ^.-^ ^' \.-"~ APPELLMCT { i^ 18.11} ^-y OP 2000 Podyapi Suka&a , S/0 ~ Efcing^ Mariya o aged about 25 yearg. < B/0 - Till - Tahak^ada, ^ehoolpara , Dis-fct - 33a.rrtewada4 B^ff- Tongral^ (M»P) y ^ .^~ ^^& ^ !^ iv" y ^'..^" -?y^v^ ' \'^:1' •Versua ^. EESPOMDEN'I .The S'ta-fce of M^P* ^IKIITAL APPEAL TTHDB5 SEO'nON 574(2) QV ORD'IINAL PaOOEDO'BB OODE 1975 OOIWIOTION SE'N'ZBNCE el ^SWiis^^,, -v^" ^- ^x^^1^11Xa)<+^^illBii,?^^ ^IITc^^m^ Wjpoo6 ^^TMJNi^ ^^w^^Tra? ^ 3IT^T1i^W(XNi6I^?) f^WS^ri^T^^T cbl4l^41^^1Nc^ff1^^x(^^iY^ ipN^^^ ^ D,B, H6ii$ble SSiriL.C.Bhadoo Hpa*bl®Shri Dilip R. Desl Ixsnukh, JJ, 22,06.2005 Shri Rakesh Jain for the 4ccused appellant. , Shri Ashish Shukla, G.A.|and Shri Akhil Mishra, P.L, for theState.. . ..' ' ;| . • • . : .; . Counsel for the parties su^mitted that instead of deciding these applications (M.Cr.P.No.2^86/2004 and 68/2002), the appeal may itself be heard finall^. . Accprdingly, a-rguments arj Oral order. 1. The accused appellant ha^ prefepred this criminal appeal hegii'd on merits. './ being aggrieved by the judgme^it of conviction and sentence dated 18th February 2000 passed|bythelearned First AddiUonal Sessions Judge, ]Jagdalp.ur, Bastar in Sessions Trial No.45/2000 whereby the learned|Additional Sessions judge after holding the accused appellant |guilty for the murder of his mother Madvi Mase sentenced hii^i to unclergo imprisdnrnent for life. •'. ,1; • /^, ;.^; , ;.- 2. Briefly stated fhe F>rosecu^0^ is thaton 9.12.1999 Madvi Pali went to the hose of Ma<|lvi Mase to borrow the money. SP/FS/2005-20,000 :i~' \dTyt|r^iqirt<|,tP-al^)«|^|6|rtltiyl< lTPR5T^TTTq? 3TT^^T<^T^?J^,: -^?T3^^t^Htc^ ^f ^- ^' 3TT^?T<|^(^tfgeT^) W|;200 ^mf^N^r^^T 2-'" However, on reaching the hou^ Masay was lying dead. She irlimediately infbrmed Madvi Rama about the'incident and on rec^iving this. mformation, he went to tiie house of Madvi Mase and dead and there were wounds a1 immediately convened Pancha^ the accused Podiami Sukda. night of. 8.12,99 his mother ^ wooden plank (Khotla) and under the offence pumshable police officer fook up the inves| <i?B<l0J]^+1i+1<^"^?1^^>cRlt$K ct)3Tf^:T3TT^T ^e of Madvi Mase, she saw Madvi ' |saw that Madvi Masay was lying Lseparate places on the body. He ^at and enquiries were made from Then he disclosed that in the advi Mase scolded him and said that he is wandering after coi-i^uming fehe liquor which enraged the accused appellant and picjked up the burning stick of teak attacked Masay with that and murdered her. \After this, M4dvi Rama lodged the report vide Ex. P. 1 at Police Station Tongp^l. ~ : 3, On receiving: tfiis, repor|;, the police registered the case under Section 302 I.P.C. and the bigation. He gave notice Ex.P.9 to the Panchas and prepared tljie Panchnama of the body vide Ex. P.2 and sent the dead bod[y of the Mad^/i Mase to Primary Health Centre, Tongpal for ^ost-mortem \dde Ex.P.ll where Dr, L. L. Dhangar conducjfced the post-mortem and SP/FS/2005-20,000 Vt OOO'OS-SOQS/Sd/dS M 1 -^- ^njo J0|{ ^u-eypdd'e posnoo-e ^sureS^ jopun Qousjjo op^j ^mud 4^Lp JG psnjsd uo ptm pQsnoo'e sq^ QT]:qnd QL[^ guijeoq J^JB o§pnp si| oj^qM mojj pu; joj jnd^p§Bp ^ os'ep SL^ pQ^immoo ujn^ui oqM ppipnp jo ^JHOQ QLp UT 4Lmn9cj SBM 133L{S 9§J'eiJO Qq^ 'UOT^gpS^All:! 'pogn'eo oq p];noo QS^] qoiqM AjnfaT oq^ ^eq^ poildQj jo^ Qq UBO QS'ep^ lApBIAJ ^Cq pOATQOOJ ^ oq^ jo.uoraido 3Lp ;q§nos V~8'cl':: <J91J^9J9tV, 'S 'd <X3 JSpUH p9J3AO,|3 'Q'I 90U3JJO JO UOdPQM ^q^ §uipj'^g ^ 3Afe§ ?q AiTnbuQ uo pu-e •Bp'^n^ sq^ ps^gMjB sq 'joyesjQqj^ '(ST| jsoyjo §ui^§pS3Aui •o'H'8 3tIJ/ 3^ ^-9Lp pQUido SH '^poq 3tl? J° 1 uj:nq 9ATSU9:txo jo ^no^^ ^o ^ sq^ 4^LI:l R^uopuom sq LpiqM uj QpBLU S-BA^ SOS UOpOQg i^oimdo Qq^ jo s~eAi pjooQj sq^ psunoo sq^ pu-e uopnoosojd ^llOISSQg pUQI^lppV pQUJ'BQ^ QL[^ ,l^U£J±^Kt4 ^ip^iyx^^^^l^^V^jM^ sppnp suoisssg jo ^JHOQ Qqi o^ ^m^ng *gs'Bi[0 ^SJT^ Q^j;si8^F^ ^d-e pssnoop :oq; ^sureg-B P^iy u|:i QL[T jo uoi^^dmoo J^yv ' t^ >y\i TApepv[ jo ^poq 9q4 uo punoj ^OQ pws ^osfqo i-BLp ^q pasn'eo knfui: sq^ jsq^sqAi o^ s^ jo-tooQ 3pTA J301JJO §Up'B§pSQAUT3q; ^QJ ^i ^o§ pu-e ^imid pobA\ ^s^ ^j ^ 'd 'xg spiA mt-ipu^jomem Tm'eApoj ^lEje^pdd^ pssnoop 'j 'x^) ire^d Q^TS psj-edojd osp x@ 'pppimoq: si q^9p jo opoiu 890^^1 tU3J3JJTp QL^ UO pUHO.^ 'oqg 05 snp si q^3p jo ssnBo (Z,'d'xa) l-iodoj oq; psjBdojd — ^ — i^i^Dyi-x^ii^a \. .^' . :->?-^ h Lrc' •^ ^ib^l^^ueite^ ?cbji-b{ltl>l^!h> (B>b^jt?Pt)<bKh1&^l^ oog^l^——" ••••••"•-••••"•••••••••• tbUt<& ifiMUt xRl^lWl3J'ff>l^^.<n'fr<*>lhlt?*fciaPv KSSsNfes, \dT^rqi<||<^^^-^|w|<»p(6|rtli<1^'< TRRCT^TT^ ^^[^200 3Ti^^T^r1^|rm; ?W?3Tr^$T^TlN g'mTST^^rfNsiT^ST — 4 - ^', "\?- ^~-' r ' • ^ '\.-- 3TT^$Tq51^^ligc(^) chajrg^ Accordingly, he framed the who in turn denied tKe charge 5. In. order to prove th^ appellanf, the prosecufion ex^ learned Additional Sessions ^Ji accused under Section 313 appellant denied his involvem^ the witnesses a.r'e false and he| implicated in the crime. 6.^ Learned Additional Se^ arguments of Additional Publit the accused appeUanf, convictjed the manner mentioned in the 7. We have heard 'the appellant and the State. 8, As far as the nature ofl concerned as homicidal, the counsel for the accused appel^ stated that on 10.12.1999 he| Primary Health Centre, TQngp^ ,r^ ^ ^3Tf^T 311^91 " against the accused appellant b.nd claimed to. be tried. : offence against the accused tmined in all six witnesses. The (iidge also recorded sfatement of Cr.P.C. in which t^ie accused mt in the crime and stated that is innocent and has. been falsely |sions Judge ? after hearing the Prosecutor and the counsel for and sentenced the accused in {j>revious part of this judgment. Idarned counsel for the accused the death of Madvi Mase being s^me has not been disputed by the lant. Dr. P.W.S.L.L.Dhartgar has was working as Surgeori in the ^.1. Qn that day he conducted the •SP/FS/2005-20,000 \d^^Wl»<<^t^^re,fi^ *ll*t^1^^T^ 3TT^5T^^ ^HOT^^T^m^ '€' ~<i) ^ ^. ^-^' 3tT^?T;q^(14?1^6t^) ^[200 §^n'$R^rit^i3:n^^T ^6 extejnsive post-mortem ori the body of many as 13 burn injuries on opinion, all the injuries were aji were in .all 60%^burn injuries cause. of death was due to shock. He prepared the reporf thfe above evidencelof Doctor it| death of Mad\d Mase was homi< 9. Now coming to the i] committing heinous crime, th^ appellant argued that the cont judicial confession befbre the recovery of the teak wood < accused, which was used as a that as far as the extra juc^i witnesses have turned hostile,| be considered trustworthy ah4 accused guilty for the heinous far as recoveries are concerndd pla4k <prafc;5^T +iMoi"^"r^^ ^rjj^dK ^>3T^T31T^$T Nadvi Mase and he rioticed as ^arious parts pf the bbdy. In his ajnte mortem in nature and^there j)n the body of Madvi Mase. The burn injuries.as a result of jvide Ex.P.7. Thereforey in view of stands proved thaf the nature of jadal, ' • bvolvemenf of the accused in leai'ned counsel for the aceused {yiction is mainly based on extra ^rosecution witnesses as also the (Khotla) at the instance of the [weapon of offence. He subniitted icial ;is concerned, all the four [therefore, their testimpny caniiot caiitnot be relied for holding the ?rime. He also submitl{ed that as ejd, P.W.4 has turned hostile and SP/FS/2005-20,000 vjx^^^|lc!>4,y'^Wl<ff,I6lc>l1<iyK m*w^Wl^ 3TI^^T^T^RN> ?TSTT3TT^$T^:Rt^ "•€. •e. ^.- ^ ^ o-'-^': v STI'^T^P (^liridcg) ^200 ?^nm^?r3n^?T •6- when the extra judicial confes^ this recoveiy becomes meanin^l 10. -On the ofher hand, leair Akhil Mishra argued that it is| whom- the accused appellantl initially turned hostile but on prosecutor they haye supporte< that the accused admitted committed heinous crime, the| thrown away altogether and c{ testimony, of course, it shflff^ej II. Now coming to the ques1 been able to establish the char^ based on the extra jijdiciat witnesses. Before placing rf confession in orden to base th| first and foremosfe requiremen| ascertain that whether the ext true and voluntary and was inducement or favour a?> has <i?|4[c641^^11^cyl'^f^^^Rf^R ^3rf^T3TT^^T on cannot be believed, therefore, less. - 'ned cbunsel for the State Shri 1 true that these witnesses before made extra judicial confessibn icross-examination by the public the prosecution case and stated be^ore the Panchayat that he has 'efore, this testimony cannot be viction can be based on such s corroborated by some material . ion whether the prosecutiQn has '^e against. the accused ^appellant confession made before the ?liance on the extra : judicial cpnviction of the accused, the is that the Cotirt must try to |i'a judicial confession made was not ohtained by the 'coercion, b^en held by the Apex Court in the SP/FS/2005-20,000 ••^•W^it'AsasWi'i ,:/^^1 <dT^^<jiqi<?)<|^tPT?ixi^t<?,RtC>l^^< *fin<»i^qT^ 3T[^^T<FTf^TJ1^; ^TT3TT^T^:qte <.' ~<^, A c\ ^- -^/ W^^q^^I^qtg) wpoo ^Tt^^rt^r^^T ^^ matter of Gura Singh vs. Statd It has been further held thatj sole basis of conviction and i way of abundant caution. would not, by itself, weaken tl^e Maghar Singh Vs. State of Puti]ah such voluntary can be ma.de on &6rrobQration is required only by retraction of such confession prosecution case. In the case of kiab,, 1975 Cr.L.J. 1102. It has E^en tHe been held in that case that thj judicial confession made by t]rj termed to be a tainted evidend it is only for the witnesses bef<j judicial confession, the circumstances in which the confessioh and the person ^ confession. : 12. In the light of above law| scrutinize evidence of the P.W.l Madvi Rama isjthe law of the deceased Madvi to the police by way of E^| examinatiQn-in-chief, he has| ^^i<4l<^<8^^ittc^"^T^^^x ^3T^TW^^T of Raiasthan, (2001) 2 SC.C 205; i^ evidence furnished by the'extra- [e accused to. witnesses cannot be ^e and if corroboration is required bef<bre whom the accused made extra Ohurt can also look into the jaccused made the extra-judicial |o whom he made extra-judicial 1 on extra-Judicial confessioh, if we pijosecution adduced in this case, uncjle of the accused and brother-in- M4.se, whoalso reported the^ matter i.P.l at the Police Statidn. In not supported the pros^cutidn SP/FS/2005-20,000 ^ccT <-«i<i irt'4,wnl^i^, Rl^l^ly^ *j^*K»ia?TT^ 3Tt^^q^(^c|[^<st<ri) ^^00 3TT^TW^:rt?R:: ^Tr3TT^$T^Hte ' ^n'$R<Tf^r3TT^T - § ^ ^PlfcN^^l^c^'^f^^^^^K ^3Tf^T3ff^r?T" ? ,^ !'4. ^: 't\- . 1-< regarding extrd judicial confesi him and stated that in the Pan< nothing. But from his exami panchayat wa^ convened and public prosecutor after seekini has stated that the accused the deceased Madvi Mase wandering aft.er consuming wi was enraged and picked up] (Khotla) and assaulted Mad^ further admitted that Ex.P.l, cross-examination by the cou| the accused had not disclosed again he stated that the accu^ scolded him that he is wanderl fhis he picked up the teak w^ Again he stated that it is inco^ that the accu^ed has committ^ this witness again stated wh<| the accused in the pancha^ }ion made by the accused before Ihayat Pddiami Sukda had stated hation-in-chief it is proved that |in the cross-examination by the permission from the Court, he jtated before the Panchayat that Jcolded him saying that he is |ne and quarrelihg. On this, he the burning teak wood plank Mase with the same and he yas lodged by him; Again in the nsel for the accu3ed stated that that how Mase c^ed^ Thereafter ?d disclosed that the Madvi Mase ng affer consuming liquor and dn •od plank (Khotla) andiassaulted. 'eet to say that villagers told him ;d the murder of Madvi Mase and ;n the enquiries w^re made from rat, then he admitted that the h SP/FS/2005-20,000 \;$)cc|^Kl 1o)<4, U)-a1^< , R|<?>W <^<^ *ll+ »ia?TT^? 3TRt$T1^^(l^ti^6(t£{) ^Fp200 3Tf^$f€[)Tl^ri^^ ?^TT3TT^$T!pHi^ ^ .^ ^^^rt^ "^" thfet accused confessed that he as|s wooden plank made oif teak. Sarpanch of the village at Panchayat. In examination-ir}- accused did not dlselose a4 regarding death of Mase. This | he has not supported the judicial confession made by Panchayat. However, P.W.3 has stated that the Panchayj Panchayat, the accused, has nc^fc died. Thereafter, this witness prosecutor was allowed to cro^ that Panch^-yat was convened called the accused in the on enquiry ma.de by - Sarpar^^ accused appellant made mother used to quarrel with hiijn after consuming- liquor. On plank and assaulted by way pr^secution tfcie Afeita <Pl^fo><I1vl ^TFI^f^"fecSt ^R^T? '•:• ^si^Tan^T Isaulted Madvi Mase with the P.W.2 Mangdu who was the relevant time convened the l-chief he has stated that the [lything before the Panchayat 1 witness has turned hostile and case regarding extra accused before him in the in the exQ.minationi-in-chief lat was convened and in the t disclosed that how his mother was declared hostile. Public ss-examination where he stated in that the Sarpanch Mangdu^ and before the Panchayat ich Mangdu Podiyami Sukda- >a^ju<dicial confession' that his saying that you are wandering he picked up a teak wood that pbject and murdered.her ahd Pancjhayat extfa- hii|n tjhat SP/FS/2005 - 20,000 ^ ^T^^I^I^^^^^+I^R^I^ ^IPTcH'^flT^? 3T[^^1:^TF<p^ WH3H^$TjcFqf<P •^- -^ 'l'Sy •^.z^- 4" 3n^Tq^cI?(^lt^RS^ ^II^TO ! i?^?(TW ^rf^T 3Tr^^T -^o- and he further stated that h^ saw the body of the deceased Mase.In paragraph 4 of thel counsel for the accused, he st^ that he does not kriow how Panchayat he has npt stated tjhat he attacked his mother with ^Khotla, P,W.4,bAs also not regarding extra juclicial confes| him but in the eross-exaiTiii! on telling to Nm 'by her t: consuming liquor. : ^ 13. If we look mto the d ^ ^Kllo^bl tll^C^I ^" (^^xRlN^CK i|5'3l1^T3ffN; cross.-examinatipn made by the ted that on enquiry accused said ^ii's mother has died and in the supported the prosecution story sion made by the accused before the Panchayat, P.W.l and P.^.3 have inidally stated thaf the accused has not disclosed anyjthing about the death caused by lation both the witnesses have stated that before the Panch4yat accused made extra-judicial confession that he attacfked h^s mother with the wooden plank lat he has is wandering after .bove evidence of extra-judicial confession the same cannot 1|)e made sole basis of conviction with corroboration. '. However, extra judicial confession befo: these witnesses is dlso menti immediately given by the P. W the fact that the accused made |-e the Panchayat in presence of bned in F.I.R. Ex.P.l which was 1 before the S.H.O. Th which he SP/FS/2005-20,000 \j^^iqi<^^,lPT1^*|<a,|6|C)Wy<< *u*ifmWSH^ ^^FcRT^iNT ^rsH3TT^$T^yi<b ^- -A .¥ •'.-- r' sn^^T q^q? (^^6i<£S) ^200 ^iT^R^Tf^f 3TT^$T -II- has specifically made a mehtic^n thaf Panchayat was convened and in the Panchayat the 9i<4l04Ivi^i+ic>l'^?fe^xRi^ci^ ^3rf^T3ff^T accused made extra Judicial confession recording assault njiade by him on his mother and committed murder and this ij-eport has been proved by the S. H. O. K. L. Naik. There is not^iing in the cross-examination of these witnesses that the abo^je said extra judicial confession was made by the accused un^er any coercion, inducement or favour. In order to seek corro1j)oration by other material as has been mentioned above that P.^.l ^mmediatety made the report before the Police Station in ^hich the fact of extra judicial confession has been mentiofied. Apart from that P.W.6 K.L.Naik, S.H.Q. and inyestigating officer has categorically the wooden plank (Khotla) arj Ex. P;5 and Dr, 'S. L. Dhangar P, which were found on the body by the said wooden plank. stated that he aiTested the a<c<tused pn 10.12,1999 and during the investigation, the accused ^ave information Ex.P.4 regarding d in pursuance thereof he got recovered the wodden plank frjom his kitchen garden and that was taken into possession b[y, the investigating officer vide lff.5 has stated that the injuries jof the deceased could be caused —t^— SP/FS/2005-20,000 1 .: - E.f ^3'^T-<4l<11rt<l;t?T?l^l<l<a,(6|<')l'<iy'< <11*ie^l^ffT^r W1|200 W^^TWl^Tra^ ^3H3H^^T?P^tcp 3TI^$Tq^(qcli^sl^) 14. It is true that P. W ,4 has evidence that enquiry made t^y the police from the accused, accused> had not disclosed any| bears his signature but therea{| took into the possession of te^^k wood plank under Ex.P.5 on production of the aecysed. Tt-|erefore, on this evidence and in the cross-examination. of P.W come on record thaf the aboye there is no reason before th| were found on the body of the length and 10?? in width as su( weapon and the evidence of th^ were found on the body of thje extra-Judicial confession ma^ Panchayat as per eyidence of] <pi<il0<nTi +imcl5t"^Bfcl<£lxfat€R ^sTf^RTgn^r ' admitted in paragraph 3 of his |hing. The memorandum Ex. P.4 |;er he has stated that the police |6 K.L.Naik S.H.O, nothing has ^aid recovery was false, therefore, Courf to disbelieve the said recovery and Doctor has alreac|y stated that the injuries which {ieceased could be caused by the said wooden plank, On perus4l of the Ex.P.5^ it is evident that the wooden plank -was in bui|nt condition and it was :33?'in >h this aspect of the recove^ of Doctor and burn injuries which Madvi Mase, corroborates the by the accused before the P.W.l Madvi Rama and P.W. 3 Aaita. •f3- E: SP/FS/2Q05-20,000 1 ;'3:®^^Nicl)<4^u>Trl^i?ti<s,Rlc>i\l^< ^msmWfH^ 3ff^^T^rfN3t^ ?Tarr3n^9TfR:Eibp ^T^ IM^^ ^w. 3TT^^q^(^lI^6|t£S) W(20p ~?^IT^i?Tt^f 3TI^^T -^' ;ar<&in 15. In view of the above, we extra^udicial confession regar<I attacking her with the teak accused befbre the Panchaya^ confession by accused before of the Court as the saine stail Recoveiy of weapon of offence| corroborates the confession, Tf Court convicting the accused fl' is based on the legal circumstance to differ from thej 16; In the result, we are substance in this appeal and Ij aiid it is dismissed. eviddnce sd/- L.C. Bhadoo Judge .^H^^^^mc^B^fe^^ ^^f^TOT^^T ^.re of the considered opinion that (ping causing death of his mother 1 wood plank was made by the ;, this evidence of extra^udiclal ^.ese witnesses inspire confidence ^ds corroborated by F.I.R, Ex.P.l. ias well as medical evidence also fherefore, the finding of the trial 3or the offence under Section 302 ^nce and we do nofc: find any view taken by the trial Court. :^ . • ;• : • , ^f the opinion that there is no jhe same is liable to be dismissed Sd/- Dilip Raosaheb Deshmukh Judge SP/F$/2005-20,000 '/}/