-~<^\ ;-lf CF0000062830 IN THE HIGH COURT OF JUDICATURE AT JABAIPIE. (M. P) CRIMINAL APPSAL N0.}?^?. OF 1999 giyssion Bencn ^?.;; .CRB1INAL APP3SAL tMDER SECIION 574(2) OF THE CODE OF^ CRMINAL PROCEDURE PELLMTS ^.Z-ft/Jfi^^ i— ^•-^1^ ...,^---" n"' /" RESPOI<DE5\?T 9.. 9 9 : 1. Jhi.mn.iklal son of Gopal Sahu aged !g about 45 years, Agriculturist 2.Mansuli:h son of Jhumuklal Sabu aged about 21 years, Agriculturistl 3.Ram Sheela daug.hter o£ Jhumuklal Sahu aged about 18 years, AKriculturist 4.5mt.Ram Kali vife of Jhumiiklal Sahu aged about 42 years, Agriculturist , All residents of village Bajrangpur,, Navagaon, P.S. Rajnandgaon, dist. ; Rajnandgaon (MP). !; VERSUS ; Tiae State of N.P. through P.S. Rajnandgaon ( ) ^ (Division Bench) CORAAA: Hon'ble Shri Vijay Kumar Shrivastava & Hon'ble Shri Dhirendra AAishra, JJ. Jhumukial and others Vs. The State of Chhattisgarh Shri CR Sahu, Advocate with S'nri Prakash Tiwari, counsel for the qipellants. Shri &K Swalre, Deputy Soy-t. Advocate for the State/respondent. <f JU06MENT (6th May 2006) Per Hon'ble Shri Dhirendra Mishra, J. The appellants have preferred this appeal under Section 374 (2) of tlie Cr.P.C. as the learned Additiona! Sessions Judge Rajnandgaon vide his judgment datsd 06.03.1999 passed in Sessions trial No.130/97 convicted cppeilants No.l, 2 & 3 under Section 302/34 of the IPC and appellant No.4 under Section 302 read with Section 109 and 120-B of the IPC and sentenced appeilants No.1,2 & 3 to undergo imprisonment foi* life ond to pay fine of Rs.1,000/- each <md 'm defauit of payment of fine, additiona! RI for two months. Appettont No.4 has been sentenced to Imprisonment for life and fine of Rs.1,000/- in default of payrnent of fine additional R.I. for two months. •f.:1 3." 2) Case of the prosecution is that Latikabai (PW-1) gave V. information in the Police Station Rajnandgaon on 25.07.1997 between 11 am to 12 noon to the effect that Devomtinbai of her village, who was seen haie and heaithy on 24.07.1997, has died; her daughter Ramkali and son-in-law Jhumuklal are preparing to crema+e her dead body in haste. The viltagers who hwe seen the dead body of &evantinbai stated that blood was oozing from the nose and moul+i of the deceased and there was a property related dispute between Devantinbai, her daughter Ramkali and son-in-iaw Jhumuklal. Death of Devantinbai was suspicious cnd on the basis of this report, merg was registered. SHO of tiie concerned police station proceeded for the scene of occurrence, prepared spot map vide Ex.P/1. The body of Devantinbai was sent for postmortem to the bistrict Hospitc! Rajnandgaon and br S Bckshi (PW-11) conducted postmortem and submitted his report vide Ex.P/26. Crirne No.400/1997 was registered on the basis of FIR (Ex.P/27) given by Bharati. During the investigation, piain and blood stalned soil from the place of occurrence, blood stained quilt, blood stained scsri were taken into possession vide Ex.P/2. The Viscera of Devantinbai in a plastic container, and sample of the liquid in another container, ornaments owned by the dsceased were seized vide Ex.P/3. Seneral power of attorney (Ex.P/4) executed by Devantinbai in favour of Appeltant No. 1 dated 31.10.1995, Will dated 31.10.1995 (Ex.P/5) in favour of Jumukla!, another Wiil dated 03.11.1995 (Ex.P/6) by Devantinbai in fayour of Jumuklal were taken into possession vide seizure memo Ex.P/14. On 1+ie memorandum (Ex.P/7) of Jhumukial-accused No.l, two blood stained bed sheets were recovered vide seizure memo Ex.P/11. On tiie memor<uidum "ws 1 N»:a8it!|i»L. silM (Ex.P/8) of Ramsilabai-accused No.3, blood stained sari was taken into possession vide seizure memo Ex.P/13. On the memoranduT. (Ex.P/9) of Mansukh, a piece of white btood stained cotton cloth was taken into possession vide seizure memo Ex.P/12. Similarly, on the memorcuidum (Ex.P/10) of Ramkali, tooth of the deceased was taken into possession vide seizure memo Ex.P/15. Naiis of bot'n hands of the accused persons Jhumukla!, AAansukh ond Ramkaii were cut and seized vide Ex.P/16, 17, 18. Blood stained cioths of the accused Mansukh, Jhumuklal were taken into possession vide :x.P/l9 and Ex.P/20 respectively. Tooth of the deceased seized at the instance of Ramkfili was sent to the doctor for his opinion and after examination; he opined that the seized tooth is human tooth. BSood stained articles were sent to the Re9ional Forensic Science Laboratory, Raipur for chemical examination vide Ex.P/28. Crime detail was prepcred on 25.07.1997, detai!in9 the site plan of place of incident. The accused persons were arrested on 26.07.1997 vide Ex.P/41, P/42, P/43 and P/44. Rin Pustika (Ex.- P/45, P/46 & P/47), registered notice and envelops Ex.-P/48 & P/49, Public notification issued by Devcntinbai vide Ex.-P/50, Public nsotif'scation issued by Ram Kali (vide Ex.-P/51) ond treatment papers of Purnima Sahu (Ex.-P/53, P/54 & P/55) were taken into possession vide Ex.~P/14. The report of F.5.L. 1 is Ex.-P/56. The samples were again sent to the Serologist for confirmation of origin and report is Ex.-P/57. 3) After completing the inyestigation, chdr9e sheet under Sections 3.02 and 201/34 was filed against the appejlants in the Court of C.J.M. Rajnandgaon who in turn committed the case to the Court of Sessions Judge, ^ ,s-' 4 Rajnandgaon and same is received on tronsfer by learned Additional Sessions Judge for tridl. 4) Charges under Section 302, in the alternative, 302/34 of the I.P.C. and 201/34 of the I.P.C. were framed against the appellants. The appel!ants abjured their guilt. 5) The prosecution in order to establish the charge against the accused examined 19 witnesses. Thereafter, statements of the accused persons under Section 313 of the Cr.P.C. were recorded in which the accused persons denied the circumstances appearing against them in the prosecution case and pleaded their innocence and false implication and stated that there are two factions in the viliage and Latika Choubey was used as on instrument in the prosecution. Learned trial Court after hearing counsel for the appellants and Additional Public Prosecutor sentenced the accused persons os wentioned above. 6) The homicida! death of deceased beyantinbai is not in dispute. Even otherwise, PW-11 Dr.S. Bakshi submitted postmortem rsport vide EX.-P/26 in which he found injuries over the right side'of the neck. He a!so found cartilage hyoid of trachea broken and biood was clotted between the skul! and brain. He opined that cause of death was asphyxia as a result of injury over the head. Ttius on -t+ie basis of statement of PW-11 and his postmprtem report, homicidal nature'of death is established. 7) The prosecution in order to estdblish charges relied upon circumstantial evidence as there is no eyewitness to the incident. The circurrtstances relied upon by the prosecution ar-e as follows:-.—— - I'a'iBiilia. There was property dispute between the deceased and the appellants 1 and 4 namely Jhumuklai and Rcmkali. To establish this circumstance, the record of rights pertaining to the property of &evantinbai, according to •» which, she hoid 6.19 acres of land in the village has been filed. The Wi!l dated il-10-95 has also been filed along with a (Seneral Power of Attorney executed on the same day by which the deceased dppointed accused No.l Jhumuklal as her power of attorney and she also willed the property in favour of Jhuwuklal on the same date. Another Wi!l dated 03-11-95 has been fiied to shovi; that there was dispute between the deceased and the appeilants No.l & 4. Tiiereafte", she again executed a Wi!l (Ex.-P/6). A public notification in the !oca! newspaper purportedly issued by the deceased on 26-3-97 revoking 1+ie lower of attorney in favour of JhumuRtal caid ano'riier pubiic notification ished in the newspapar on 19-6-97 by Ramkali claiming that her mother has los* her mental baiance dnd thereafter, no-one should enter into any transaction with her mothsr in respect of her property. From the above documents, a circumstance is estabiished that there was property retated dispute between.l+ie deceased and the appellants. ,. ii) Second circumstance relied upon by the prosecution is that on the date i.e. 25-7-97 .PW-1 Latika Choubey gave intimoition in the Police Station informing about the suspicious death of the deceased and mentioning in the said information that the appellants are trying to cremate tha dead body of the deceased in a hosts. iii) Tnird circumstance is that on the date i.e. 25-7-97 itself tiie dead body of the deceased was found. In the evening the accused/aggeiiants No.l 'i^l 6 cnd 4 went together to the house of PW-1 Latika Choubey and confessed tiieir guilt detailing the circumstainces of the conspiracy and 1+ie manner in which they executed the crime in question. iv) Another circumstance to implicate accussd No.l In th®offence in question is that on the basis of his memoraidum two blood stained bed sheets were seized vide Ex.-P/ll. On the.memorandum of accused No.2 Mansukh stained piece of white cotton cloth was seized yide Ex.P/12. From accused Ramsheeia, blood stained sari was seized vide Ex.P/13 and from accused Rarnkaii a broken tootii of the deceased was recovered. TTie witness of the seizura memo is PW-8 Nohariat Snhu. He has proyed -t+ie memorandums of Ex.-P/S of Ramsheela, Ex.-P/9 of Mansukhlal, Ex.-P/lO of Ramkali, and Ex.- P/ll of Jhumuklal. In pursuance of the said memorandums and on the basis of the above memorandums articles were seized vide seizure memos Ex.-P/ll, P/12, P/13 and P/14. He hss a!so proved the seizure of naits which wera cut frorn both the hands of appellants Jhumuktal, his daughter Ramsheela and his son AAanajkh which we.re. taken into possession vide Ex.-P/16, P/17 and P/18. •As per the report of F.5.L., articles collected cs.re nails of Jhumukia!, shirt seized from Mansukh and two bed sheets seized from Jhumukhlal containing blood. According to the Serolo9!St's report, 17, 18 and 20, shirt seized from AAansukh and two bed sheets seized from Jhumukhlal contained human blood. However, according to the report of 'Serologist, the origin/blood group could not be confirmed because the samples were not sufficient for test. v) The tast circumstance relied upon by the prosecution is that according to the postmortem report, the deceased died homicidal death by 7 strongulation which corresponds to the extra judiciat confession made by the q3pet!ants No.l and 4. i) Learned counsel for the appellants argued that extra judicial confession made by appellants No.l and 4 before Latika Choubey (PW-1) cannot be acted upon because th,e same is unnatural and the manner in which the confession alleged is made, is most improbabie. It is argued from the evidence avaitable on record that it would be evident that in fact Latika Choubey (PW-1) was used as an instrument in prosecution to show the invoiyement of appeilants in the aforesaid crime. There is evidence to this fact that the village is fraction ridden. Roshni (PW-3) in para-5 of her statement stated that there we.re. two factions in her viltage, in which Latika Choubey is one side whereas Raja Ram etc., are on the other side. Present accused persons are of Raja Ram party while Sayatribai (PW-2), Anarbai (PVi/-6) etc., are in the par-ty of Latika Choubey. It is howsver, argued that the ailsged confession has not been reproduced by the witnsss in words in which it was made before her and the same is cryptic and from going through the statement of Latika Choubey, (PW-1) it is not clear as to which accused person made what confession. Therafore, no finding of the confession con be recorded on ttie basis of statement of Latika Choubey. It is further itted that so far as the seizure of blood stained articles from 1+ie sossession of the appellants Jhumuktal and Mansukh is concerned, though presenca of human blood on the orticles has beeri mentioned in the report of Seroiogist, but in the absence of evidence that the blood present on the ar'ticles corresponded to blood group of the deceased convictioncannot be 8 la'" uaii sustained only on the basis of these recoveries. Relying on the judgment in the rnatter of Qhaevan.iaya Reddy Vs State of Kamatoka reoorted 'm AIR 2001 SC 1512 counsel argued 1+iat in the absence of cmy substantive evidence against the accused persons, only on the basls of extra judicial confession allegedly made by appeilants No.l & 4 conviction cannot be based. Further relying on the Judgmentin'the matter of Naresh Mendal <? another Vs State of Blhar reported in 2006(2) Crimes 131 Hiah Cwrt it is argued that the appellants cannot be convicted solely on the cir-cumstances that there was a dispute between them in relation to the propert)' owned by the deceased, in the absence of any other incriminating evidence or in the absence of any eyewitness of the incident. 9} On the other hond, learned counsel for the State supporting the judgment of the trial Court argued that there was a strong circuwstance which hois been duly established by tiie prosecution in terms of motiye, extra iudicia! confession and recovery of the b'ood stained articles. Each circumstance has been established and the cumulative effect of the circumstance estabiishes the gui.It of the appellants, so far as the argument that appellant No.4 has been conyicted with the aid of Section 120-B/109 of the IPC without framing specific charge in this regard is concerned, simply because charqes have not been framed under Section 120-B read with Section 109 IPC, conviction cannot be set aside. Bare perusal of the charge shows that the ingredients of the conspiracy are yery'much there buf the defence was not able to demonstrate as to what prejudice was caused to appeltant .4 in any way. Reiiance is placed in the matter of Kowniari Brohinowh and 1 Q in /a cffurl' 77S to demonstrate where the omission to frame charge was there, no prejudice is caused to the accused; the same does not affect the confession. Further placing reliance in the matter of Seyeriwnent af NCT of SSelhi Vs sr'incspies under Seetion 30 of the A Incllned to oeeeot ti>e other evidence avoi'obie on record aaainst the occused. !•„,< tsut wt pp coRfeseion of a cs-aceused can be pressed into sewice to fortify its belief to 1£T ©p»|T @1^©, Vs a"Qued that the extra .iudicial m in -,^ ^t'? s'te ct agcirist those aceused MQinst tiie eenfessorhimself. Vt'e have heard learned counsel for the parties. 11) 5o far as the first circumstance of motive is concerned, from the documentary evidence available on record as also from the evidence of Latika Choubey 0?W-1), it is clear that there was a dispute between the deceased and appeilants No.l & 4. This dispute relates to the property recorded in the narpe of the deceased beyantinbai. However, the question to be considered in this appeal is whether the prosecution has been able to establish any other cir'curnstance in the form of substantiye evidence to estab!ish the inyolvement of tiie appeltants in the cr-ime in questjon. If we 1 -tl 10 look into the evidence and material available on record, the prosecution has tried to establish the charge on the basis of statement of Latika Choubey •l), who is witness of extra judicial confession by appellants No.l & 4 and the recovery of blood stained articles on the memorandum of the appellaints. However, tiie evidence of Latika Choubey (PW-1) does not inspire confidence of this Court for the fotlowing recisons:- From ths evidence available pn record, particularly from the statement of Roshni (PW-3), we find 1+iat the village is divided into two factions; one headed by Latika Choubey (PW-1) and the other by Raja Ram ( PVV-4). The accused persons belong to Raja Ram party whereas this witness Roshni (PW-3) and 6ayatribai, Anarbai, Purnima, Deepkunwar, Subhau, Kanhaiyyalal and others belong to the party of Latika Choubey. Kflinhaiyyalai •5) has aiso admitted that there is a dispute in the vi!la9e. Therefore, contention of Latika Choubey (PW-1) that accused No.l &. 4 went to her house in the eyening on the date when she telephoned to the Police Station cppears to be un-natural. Even otherwise, the account of extra judiciai confession also appears to be un-conyincing inasmuch as it contained the minute details of the conspiracy hatched by the appellants and subsequent conduct after the IriCident. The confession of the accused appe!lants No. 1 and 4 is also not "eferred in their own words and the whoie confession has been illustrated by this witnass as if she' was eyewitness to the incident. If we consider this account.in the back ground of the oyerall statemerit of this witness and also in the light of the fact that this witness and the accused persons belong to two riyal factions of the village, we are of the opinion that it would npt be sife to ^ 11 act on the statement of this witness. The statement of Ex.D-1 was recorded on 26th July 1997, though the police has arrived in the vil!a9e on 25.07.1997 and the aileged confession was made in tiie eyening of the same date. The statement of other wi+ness was atso recorded on 25.07.1997. There is no explanation as to why the statement of Ex.D-1 was recorded on 26th July. .2) So far as recovery of blood stained articles from the custody of appeilants Jhumuklal and Mansukh is concerned, evidence of Noharial Sahu -8) proved all those documents vide their memorandum. He is resident of village ©or-dhaand he stated that on 26th July 1997 he had gone to Police Out Post Chowk - Chickly; there he saw ali those appellonts for the first time and did not kno.w their names. There, they were being mterrogated by the police. In the cross examination, he was not ab!e to state the colour of the clothing the aDDsIIants. He further stated that all the documents were prepared collectively after interrogation. 13) In the aforesaid circumstances, it woutd not be safe to rely upon the statement of this witness for the purposes of memorondum and seizure f"om the accused persons. Even otherwlse,r in the absence of evidence that the articles seized from ttie appellants contained the same biood group as tiiat of the deceased bevantinbai, the conviction of the appellants cannot be based soiely on the ground of seizure of blood stained clothing from the appellants. 14) . So far as the argument of counsel for the State, on the basis of judgment of Kammari Bs'ahmeiah (supra) is concerned; it is true that if prejudice not caused to 1+ie appellants for non-framing .of the charge; the 1 ^ 12 same does not affect the conviction. But in the instant cass, as it is held in the foregoing paras, that extra judicial confession is not reliable and there is no eyidence of conspir'acy except the statement of this witness and therefore the conviction of appellant No.4 with the aid of Section 120-B read with Section 109 of the Cr.P.C cannot be sustained. •'ni'IBISif 5o far as the judgment in the wat+er of Gevernment of NCT (Supra) is concemed, it is also not cyplicable in the facts of the instant case as we ha.ve already held that the prosecution has not been able to estttblish extra Judicial confession by appellants No.l & 4 by adducing reliable evldence. In the matt'er of State of Maharashtra (supro), the confession of accused of that case was recorded under Section 164 of the Cr.P.C., by the Judicial Magistrate First Class, who was examined as prosecution witness and who in the Court, stated tfiat before recording the statement he has ensured that the confession was voluntary. However", in the instant case, as per the reasons mentioned above, we are not ab!e to rely upon the version of Latika Choubey (PW-1) and therefore, the above Judgment is not f: facts of the instant case. r licable in the 16) On the basis of aforesaid discussions, we are of 1+ie considered opinion that prosecution has not been able to estabiish the involvement of the cpp.ellcmts in the crime in question on the basis of circumstantial evidence and the circumstances reiied upon by the prosecution have not been independently proved.by reliab!e & cogent evidence. In the aforesaid circumstances, the Court-below was not justified in holding the appellants guilty flind convicting them'bv the imo'uqned iudqment. T^" 13 In the result, the cppeal preferred by the appellants is aliowed. The judgment of !earned Additional Sessions Judge is set aside and the (peilants are acquitted of all the charges as they are entitfed for benefit of doubt. Appellant No.l - Jhumuklal who is in Jail, is directed to be set at liberty forthwith, if he is not required in any other case wid appeiicuits No.2 to 4 (dppe!!ant No.2 - Mansukh, No.3 - Ram Sheela, No.4 - Ramkali) who are on bail, need not surrendergid their bai! bonds are discharged. Sd/- V.K.Shrivastava Judge Sd/- DHBIENDRA MISHRA Judge p'lOn ^