l ‘ 1 Under Sentenced Crime Restience Patl'wrs W section-1.; Nosmggf—G—qnl’oiicc " Name 'to-mgfh égfqgT-Cm —————— ................ “‘“““"‘ ~§‘-T«:\T=w_------m__ 9i WTW_%GRE§‘ ‘‘‘‘‘‘‘ Stuiimrww ~- «fifi M ——————————— ["“@ctié’“é§‘ -~—~Scssion Age—m -_.<---‘______~__:__’ _ K6hé£iimivv _On__._§3 'I'ria! N()._.'Q’/..§?§_Z}§i r Lo‘ éLGES ________ “cg; g“)? W@%€>‘‘‘‘‘W % ‘&bma%m a ...... _ ‘ l‘iSOIEer’that i ‘ ~ ' Who n (he should shirtéiberepresgri£éd case apt-jean andzwiH . not -' legal 1 be 7 ’byiléggipraclitioner ppellz'itf: pracl'ilzioringLgppcgrs.iILLheilregalwpraC‘nli’on’e’r’ obliged ’ Court 10 give f " he will a‘JJCaringlo slates the not court 0r proceed wishes any may with legal-practitioner to proceed be ' the‘ repres‘en base at once (WE? )Q for Q< J I VL Date‘o'fA 2. ‘ Date V 3. , ’’ 7 4. 5. pplicatioii fo ‘ co}. y oilu'd h V ‘ W'VV ‘ 7’ )i 7--_;i._______ L’.;5J;Q£_______ ‘ % 1f__- & __ . —._——____--_--___-___-_-_- to be represented or not ________ ~ YwNe’ ,_-7____T___________ ‘ to zlppollzint/ Connselor JClgment ol‘lhL‘ Co‘lty and appellant Progress )l6i£ Report ol”l‘hc (I It is explained to the P iiby legal practitioner the A seven days unless the iiotgvi i . b D 7 ¥ soner Wishes Whether The .ll use has given k :V Confined ‘i —-__-_;» Forwarded No— J49~%§Lymé%m¥—Dutetl~il~———~: , t0 the l CHIEF édfékaf JUDICIAL MAGISTRATE —————fig: Q }%1@’0 ’ _ ——— {51’——————————————.—————————— _____ to gather to the propér Appellate Coui't. H \W‘‘‘‘‘‘‘‘‘ Forwarded 10 [he ::El:é-I§i’:l§ié:tii3§:£M§£§Kéitig£&gg£@f Dated 924“ " ' 200; ii * t a4 .......... Date ol‘reeeipt in Appellate Coui‘t ‘ " “—_ A _ g, pi i . h: ‘ XI-HC—78 b. 1 . / HW,WW,W mamféqw wmm WWEWW éawm mmaf%am Division Bench: - Hon‘ble Mr. L.C. Bhndoo, Ag.C.J. and Hon'ble Mr. Smii Kumar- Sinha Sr 6-2-2007 Mr. Abhay Tiwar'i, counse! for'the appeilanfs. Mr. MRS. Bha‘ria, Panel Lawyer for- fhe Sfafe/r‘espondem; ‘uf Crimhal Appea! No.871/2005 filed by Kawasi Hadmo, Criminal Appeal No.872/2005 filed by Podyami Laxman and Criminal Appeal No.873/2005‘ filed bygOyaml Maiaa are arising our of The same crime and same judgmen? in Sessions Trial No.1/2005, iherefare, They are being disposed of by ‘riais common Judgment Today Criminal Appeal No.Ei71/2005 was lisied for hearing on M.(Cri.)PiNo.63/2007, applicafion for suspension of seni'ence and gran? of bail during ihe pendency of ihis appeal. As fhe mai'fer is very short iherefore, wifh The consen'i of counsel for respeci‘ive par’iies, The maTTer was heard for final disposai. Though connecTed appeals namely, Criminal Appeal Nos‘872/2005 and 873/2005 are noT lisTed Today, afTer being called; They were also heard for final disposal. Oral judgmenT dicTaTed on Dois. RT.O. C”). a . g7ljg72‘M/w( g7$ WW .o.o.... 0.0 .......o.. 200,37 WW(W) XI—HC—78 Hm,mna, cm <g’m €01 «wwk C93 mm ....‘....ooo. WW(W) )ix Ka§/ 0‘00‘00§W 200 WWWW 32 / ?zr- L.C. Bhadoo, Ag.C.J’.: - The accused/appellanfs have 374 (2) of The Cr.P.C. quesTioning k of convic‘lion and order of sentence daied 29-10-2005 passed by i’he 2M ir in Sessions Trio! Mal/2005, whereby offer holding fhe accused/appenanfs mm%wm aawm Addifional Sessions Judge, Jagdaip‘v. learned Addifiona! Sessions Judge guiHy‘for commjssion of offence uu; senfenced each of The accused 1‘0 u‘ fine 01$ Rs.500/—, i'n defauh' of paym +hz~ee months and 1:0 undergo RI. fc in defauH' of paymenf of fine fo f respectiveiy. V g The case of fhe prosecu'Hon, 2904 on fhe occasion of concluding funcfion was arranged by villager near drain of fhe village in which deceased Kawasi Bo‘ri along wifh ‘rhe ccused persons also parficipafed, fhere was a dispu‘i‘e be‘l-ween deceased Bo? and accused Kawasi Hadmo, Therefore, on accoun? of fhaf dispui‘e fhe accus d persons‘firs‘l' a‘i‘iacked i'he deceased wi‘i-h hands, fisfs & foof, 'ihereafi'e , Tied a fowel around ihe neck of Boi‘i, commi'Hed his murder and i'hrew hi body in fhe wafer of l‘he drain. Sm‘i. 8i1‘am, wife of Bo'l-i, lodged merg in‘i-i afion EXP-12 in Police Sfal‘ion: Darbha fo The effecf fha‘i on Sa‘rurday af a ou'l' 5.39 pm. accused Hadmo fook her husband from ‘i‘heir residence sayin iha‘i ‘rhey are going for wafching fhe preferred fhese appeals under Sec‘mn gaIiTy and cor-redness of fhe Judgmen? 1der‘ Sec'l'ions 302 & 201 of The I.P.C., ,1 nder-go imprisonmenf for- life and pay a eni- of fine To fur‘i'her' undergo RI. for r' fwo years and pay a fine of Rs.500/—, ur'i'her undergo RI. for- fhree monfhs, n brief, is Thai in The evening of 3040- remony of Jagar, a local fesi'ival, some ,/" / P.T.O. / 3 XI-HC-78 HW,WWW & VA ($7M. SwL mm ‘4213(a}/ W o.o.. 000. .....o 00000 a1 200 Waits-(W) r conciuding ceremony gar. en her husband did no? r'e‘mm whale night in 1‘31e morning she wen? To fe hcuse of Hadmo fo enquire abou‘i ‘rhe whereaboufs o her husand, bui' he did no? disciose anything +0 her, fhereaffer, her neighbour Somdi cme and informed iha‘l‘ fhe ody of her- husband is iying in fhe wafer 0f Anga river drain. On hearing this, she aiong wifh Viliage Koi'war and ofher ersons wen‘i‘ fo ihe drain and saw iha‘i' fh? Sody of her husband was lying i'he waier' of *he dran,’here was an injury on 'he head. On receivig ‘rhis repor'i', fhe nvesgating Officer iefi' for ‘ihe scene of occurrence. Afier iving nofic to fhe Panchas, inques‘i‘ EXP-7 on fhe b H r r w 4 u ac e Ka n ody of Kawasi Bo'ii was prepared. e also prepared ihe si‘re plan {ExP—5) of fhe piace of occurrence. The wafe of ihe drain where fhe body was lying as seized in a baffle under EXP-, ‘ihe fowel which was fied around flue neck of deceased Bofi was seized nder EXP—3 and fhe forch was seized under EXP-2 af fhe insfance of cused Kawasi Hadmo in pursuanc of memorandum Ex.P—1. The body of wasi Bofi was senf for posf-morfem fo Communify Healfh Cenfre, Darbha uder ExP-lé where Dr‘ AK. Jena (PW-5) conducfed posf-morfem, prepared fhe post-morfem reporf EXP-11 and opined fhaf fhe deafh was due fo Jury fo vifai organs, haemorrhage and shock. Dehafi Naiishi ExP-13 was iven by Assisfanf Police Inspecfor GR. Baghel and base on fhaf, firsf inrmafion reporf EXP—14 was regisfered for commission o offence under Scfion 302 read wifh secfion 34 of fhe I.P.C. P.T.O. C W 0 mwffwm WWW J} %:3Tf%wan%31 af Ja Wh h f b a b du p n i? i a n Iti g e n g d fo f ia jw‘ XI—HC—78 wwm Cm %‘3\ L Ma» %?;t€> m m 200 mm(W) XI—HC-78 EWWW Cvm @é‘Jr Qnz’ WAybQ? wmm WWW wwmm " g“ WWW§WWR %31%§311%¥T Crushgd injury between mg 4‘" & 5’“ tca 0f right feet in fhe. siza of 1_‘ \/. 2.5 cms. x 2 cms. x 1 cm. 2) Abrasion on fhe forehead above fhe righf eye in The size of 5 cms. x 1.5 cms. x 0.5 cm. 3) Abrasion on fhe skuli in fhe size of 0.5 cm. x 0.2 cm 4) Abrasion an fhe scro‘i'um in fke size of 4.5 cms. x 0.5 cm. 5} $br-asion on The knee of leff Keg in The size of 2.5 cms‘. x 1 cm. 6) Abrasion 6n The neck beiow ‘rhe left jaw in ‘rhe size of 6 cms. x 1.5 cgns. x 0.5 erg. 7) The brain was congesfed of fhe place where fhere was injury. Scro‘rum was congesfed. 10‘h ‘51 11’” ribs were found fractured. 8) There was a cuf in the middie of liver in The size of 5 cms. x 1 cm. ieng‘rh and was rup‘iured, The ~upi‘ured porfion was congesi'ed. 9) There was biaod in large and small infesi-ine. Injuries were anfe-mor‘rem in na‘rure. There was a fowel around The neck of fhe deceased. In ‘lhe docior’s opinion, the cause of deafh was on accoun'r of haemorrhage, shock and injury +0 liver. Therefore, in view of fhe above, i1- is established ‘lhai i‘he deal h of Boi'i was homicidal in nature. As far as involvemeni' of fhe accused persons in fhe crime in ques‘rion is concerned, in fhis case fhere is no direcf or ocular evidence. Whole case resfs on The circums'ran'rial evidence. As per The seTTled law, in order To i oonvicT an accused based on The circumsfanTial evidence, The Hon'ble Apex WW(W) 1 P.T.O. XI—HC-78 HW,WWI§,%IW cka cm, $12 MJK $‘Wog’ Wm .o W 200 Wm<w> fher-e was a dispui-e of her husband Balihar‘ Singh (PW-3} has sfafed disclosed before the Panchaya‘i- ‘rha‘l accused Hadmo and deceased Bofi In of his evidence has sfa‘i-ed fhai- fhei'e was a dispu‘ie between Hadmo and ‘ihe deceased in connec’rion wi'i'h land and on account of fha‘r, accused Hadmo and Therefore, in View of The There was some dispufe regarding Iand ased Boi-i. If has come in +he cross- examinafion of 5min Kawasi Bi'iani: (PW-1), wife of fhe deceased, fha‘i "nal uncle, accused Laxman is her elder accused per-sons are doseiy relmec son of her grand fafherl Therefore, The Mi‘rh fhe accused persons regarding Iand. in his evidence ‘rha‘l‘ accused Laxman in ihe nighf on accoun'i- of iand dispufe, ere Taiking. Mifhuram (PW-4) in par-a 6 accused Hadmo is son of her ma‘ie brofher’s son and accused Madda is fo ‘ihe deceased and as per The above evidence, fhere was dispu'i'e wifh Hadma regarding land. As far as fhe second circums 2) has sfafed in his evidence 'i'haf deceased fha‘l' in 'ihe evening fhe a4: from his house along wifh 'l'hem. Bal Panchaya'l- accused Laxman disclosei fhere was some alferca'iion be‘m regarding land dispufe. Therefore, (PW-2) and ‘ihe exfra judicial con‘f Balihar Singh (PW-3) in i'he Panchay fook ihe deceased from his house w his ussociafes commif‘red fhe murderof gofi. above evidence,if can be held tho? befweegi accused ldadmo and decei Tance is concerned, Kawasi Lakhma {PW- ii was disclosed +o him by wife of ‘rhe cused persons had Taken deceased Boi-i ihar $ingh\(PW-3) has S‘i'a'l'ed fha’r in “ihe i fha‘l' deceased‘Bo'i’i was wifh ‘i-hem and een accused Hadmo & deceased Bofi n view of fhe evidence of Kawasi Lakhma ession made by accused Laxman before of, if is established fha‘i‘ accused Hadmo Th him in fhe evening. P.T.O. XI-HC-78 MWWW (Va/Q a we ma we? m...oo.o .....o..o.o m 200 WWW sawmwsiaass) mmdww madam massaam w? ewm ‘ XI—HC—78 WWW W 200 CVQ %?(.( %7& Wax %’);(sr W WW(W) marmm WW§WW éswm As far- as fhe fhir-d cir-m msfance exfr'a Judicia! confession is concerned, in order fa place reiiame on fhe exfr'a Judiciai confession: fhe prosecufion is required 1'0 esfablish voiuniary, 'h‘ue and prompt Mr'. Abhay Tiwar'i, learned coJnsei far The accused/appellanfs argued fhaf ind-he evidence of Baiihar Singh fha‘r The exfr-a judicia! confession was v v (PW-3) 6i Mi‘rhumm (PW—4) if has come on record fha‘i when ihe accused parsons made exi'r'a judicial confession in ihe Pancikayai', fhe’P‘olice was present He furiher argued ihaf had i-he accused persons made exfra judiciail confession in fhe Panchayaf, fhen This fact ough'l' 1‘0 have been menfioned in fhe inques‘r reporf EXP-7 which was prepared in ‘ihe evening of 31" October, 2004, but fhere was no mem‘ion in fhe said inquesi’ repori‘ EXP-7 regarding The ex‘i'ra judiciai confession made by fhe accused persons in ‘ihe Panchayai, as such, fhe fheory of exfra Judicial confession made by fhe act used persons before fhe Panchayai' has no‘r been esiablished beyond reasonable doubi'. On fhe oiher hand, Mr. M.P.£. fhe judgmenf of fhe irial Court We have perused +he evidence of Balihar Singh (PW-3). He has sfa‘red fha‘l' Panchaya'l was convened, in fhaf Panchayai, accused Laxman made exfra judicial confession ihaf deceased Bo‘l‘i was wiih them and fhere was an al'i‘ercai-ion be‘i-ween deceased Boti & accused Hadmo in conned-ion wri'h land dispuie Thereaf'rer the) called accused persons Hadmo 6i Madda Bhai'ia, learned Panel Lawyer supporfed PIO. XI—HC—78 3a 2mm, WWI-gr, W w w $§WN 1H 200 WW(W) WWW " “(/1-‘ WW§f€Q°rWR éawm WWW mmwm in fhe Panchaya'r and in +ha‘r Panchavaf, Those accused persons also made confession fha‘r +hey have commi‘Hed fhe murder of Kawasi Boti‘ In cross- examinafion para 11, This wifness has ‘Fur'fhar sfa‘red Tha‘l' if is correct To say Tha’r ?odyarni Laxman, Kawasi Hadmc & Oyami Madda made ex‘rr'a Judicial confession on accoum‘ of fear fha‘r The Police may give bea‘l'ing. I‘i’ is correci' +0 say fha‘r on second day fhe Police cume in fhe village. *e 1‘ Mifhuram _(PW-4) in para 4 of 1is evidence has s‘l'afed fha‘r Panch'ayai‘ was convened in the village in which he along wiTh Balihar Singh, Ko‘iwar, Gadru, lfl/ard Punch and fhe accuse persons were present Before The Panchaya‘r, accused persons Hadmo, commii'i'ing 'l'he murder of Kawasi Bo'i ,, they ‘rhrew him in ‘l'he drain. In para 17 of his examina‘l'ion, he has sfai-e that if is correci- 'i-o say Thai in ‘lhe firs? ins‘i'ance, ihe accused persons ere saying, They do no? know any‘ihing, bui- Iafer on, on accouni- of fear of Pol ce they disclosed everything. Therefore, from fhe above ev dence of fhese fwo wi'l'nesses (PW-3 & PW—4), if cannoi‘ be said ‘ihaf fhe sa exfra Judicial confession was made in presence of The Police. Defence has of been able fo elicii any circumstance ~ in cross—examination of these two wi‘rnesses‘tmshow that the accused persons made extra judicial confessi n in presence of the Police. Now, the question remains as whether the extra judicial confession was voluntary. Both these witnesse have stated that the accused persons made extra judicial confession on account of fear of the Police and therefore, it cannot be termed as n axman & Madda disclosed ihaf affer "J i XI—HC-78 Cva HW,WW, 6} m ...o.o.... OOOOO‘ 1TH; 200 WW(W) cw, wz» Wal @3- 1 0 mmmm 9 )C’ basis of evidence, of fhe wifness‘es WW§§$W a‘nwm ThaT on accounT of fear of Police The accused persons made exTra judicial confession, iT cannoT be said ThaT The said confession was nof voluntary. always have fear fhaf fhey may be C4 cannof be said To be affecting The v fhe accused persons There is no'H evidtn‘e‘e of fhese wifnesses 'rhaf fh fha‘i if fhey are haf going To disclose Then They wiil be hgnded over To The Them or They will be implicaTed in crime by The Police. Therefore, mere facT ThaT There was fear of Police in 1 confession made by Them cannoT i TruThfulness of The confession is cox dispuTe beTween accused Hadmo am AparT from ThaT, The deceased was where Jagar was being celebraTed ne In The circumsTances, for 1 considered opinion ThaT The exTraJ persons before The PanchayaT in namely, Balihar Singh (PW-3) & MiTh As far as The argumenT ¢ appellanTs ThaT There is no menTion c accused persons in The inquesT re The persons who are involved in a crime zughT in The crime, Therefore, such fear olunTariness of The confession made by Ting in The cross—examinaTion or in The ey had ThreaTened The accused persons :or confess ‘how Kawasi BoTi was killed', Police and The Police will give beaTing To he mind of The accused persons, The ae said To be involunTary. Moreover, roboraTed by The facT ThaT There was a deceased BoTi in connecTion wiTh land. seen in company of The accused persons .ar The place of occurrence. 'he foregoing reasons, we are of The Jdicial confession made by The accused The presence of These Two wiTnesses iram (PW-4), was volunTary and True. idvanced by learned counsel for The if exTra Judicial confession made by The porT EXP-7 is concerned, as per The P.T.O. XI—HC-78 Cw? QHK f .%72r “W? WWOO.Q~‘ OOQDQOOo.o Ha 200 WW(W) WW, Wan—gr, W 11 >(‘3f mmw ‘ WWW mmwm : U” regord, the inques? repor‘r was pm: menfioned in if and in cross-examin PW—4) defence has no1‘ been abie fha? 'rhis inquest repori' was prepared offer The Panchayaf was heid in which i‘cial confession, as such, non-menTioning Fession made by The accused persons in , as There is noThing on record ThaT The WW§WWA éaaq‘fTErrm cred on 315* October, 2004-, no Time is afion of fhese fwo wi‘rnesses (PW-3 & ’ro eiicif any circumsfance which shows fhe accused persons made exfra Jud of ‘i'he facfum of exfra judicial con EXP-730% no? make any difference ex'rra Judicial confession was made Perusal of 5ehaTi Nalishi .P-13 shows ThaT The AssisTanT Sub InspecTor who lodged The DehaTi N lishi has caTegorically menTioned abouT The sTory of The incidenT ThaT The d ceased along wiTh The accused persons Took Their meai near The place of oc urrence, nexT day morning, The body of deceased BoTi was seen in The N la near The place where The accused persons and The deceased were Taki fore EXP-7 was prepared. 9 Their meais on The day of The fesTival of Jagar in The nighT. NexT day morning, Somdi Bai informed wife of The deceased abouT The body lying in The in The PanchayaT The accused pe‘ regarding The commission of crime. 11-2004 aT 12.30 pm. Therefore, we are of The con righTiy placed reliance on The evideni persons made exTra Judicial confession regarding commission of crime drain. IT has also been menTioned ThaT ~sons made exTra Judicial confession The said DehaTi Nalishi was given on 1- :idered opinion ThaT The Trial CourT has :e of The prosecuTion ThaT The accused P.T.O. e XI-HC:78 $a:mmwm‘@$mna g> 12 WME oj F'T 200 WWW WW mmwm 42V before fhe Panchaya+ in presence of 4). WW§WW %31%1m1%¥r Balihar Singh (PW—3) & Mh‘huram (PW- Far- fhe foregoing reasons, fh on fhe basis of fhe circums'ran‘ria circumsfances is compiefe and an ir' fhe'fcfcusgd persons were the aufhc possibilify bf cgming of any fhir'd crime in quesfion. e In fhe resuH, i‘he appeals (Cr & 873/2005) being devoid of meri‘i', hereby dismissed. Consequeniiy, M.(Cri.)P.No.63 L i i Sdl— {Acting Chief Justice ‘ e prosecufion has been able fo esiabiish evidence adduced fhai' fhe chain of resisfible conciusion can be drawn fhai rs of The crime in question, There is no person in befween and commi‘H‘ing fhe iminai Appeal Nos.871/2005, 872/2005 are liable To be dismissed and They are £2007 sfands disposed OE Sdl- Sunil Kumar Sinha Judge P.T.O. i W