?“v 1 Criminal Appeal No. 653 of 2001 HIGH COURT OF CHHATTISGARH AT BILASPUR DB: Hon’ble Shri Sunil Kumar Sinha, J 85 Hon’ble Shri Raieshwar Lal Jhanwar,J. Criminal AQpeal No. 653 of 2001 APPELLANT Suresh S / o Nathuram Caste— Gond(Triba1) aged about 35 years, R/o village Sidesar, P.S. Kanker Tahsil and District Kanker(CG) Versus RESPONDENT State of Chhattisgarh Through O.I.C. of P.S. Kanker Tahsil and District Kanker(CG) APPEAL UIS 37412! OF THE CODE OF CRIMINAL PROCEDURE Appearince: Shri RlKJain and Smt. Kiran Jain, counsel for the appellant. Shri Ravindra Agrawal, Panel Lawyer for the State. Vi‘ a ORAL JUDGMENT ( 07.05.2009) The following judgment of the Court was passed by Sunil Kumar Sinha, J. (1) Appellant—Suresh stands convicted under Section 302 I.P.C. and sentenced to undergo imprisonment fdr life by the 2nd Additional Sessions JudgeJFTC), Kanker (CG) in S.T.No.335/98 on 10.7.2001. (2) The facts briefly stated are as under: On 25.8.1998, deceased-Birjha Bai, a lady aged about 50 years, had gone towards the fields for grazing her cattle. Her dead body, having many injuries) was seen by the children of a School. They intimated their Teacher —Sitaram Netam (PW—8). He also went to’the fleld and saw the dead body of the deceased. The case of the prosecution is that the appellant himself went to the Police Station and gave-A information that he has caused murder of the deceased by using a Gupti. This information was reduced into writing in Roznamchasana No. 1324 dated 25.8.1998. Based on this information, the Station House C‘ @ Criminal Appeal No. 653 of 2001 Offlcer Went to the scene of occurrence, gave notice (EXP/2) to the Panchas and prepared inquest (EX.P/2—A) on the body of the deceased. Dehati Nalishi was recorded under Ex.P/9—A. Plain soil, blood stained soil and other articles were seized from the place of occurrence under EX. P/ 5. After taking the appellant into custody, his memorandum (EX.P/ 4) under Section 27 of the Evidence Act was recorded and a Gupti was seized at his instance under EX.P/4-A. The dead body was sent for its postmortem to the Government Hospital, Kanker under Ex. P]7, where, the postmortem examination was conducted by Dr. J.S.Sahu (PW—4), u who prepared his report EX.P/ 7—A. The Autopsy Surgeon noticed 13 external injuries, including 12 incised wounds, on the body of the deceased. He opined that the cause of death was intra abdominal haemorrhage with fracture of skull, leading to shock and death and it was homicidal in nature. Based on the investigation conducted in the village, F.I.R. was registered under EXP/9 and the seized articles were sent for their chemical examination to Forensic Science Laboratory, Sagar, from where, the report Ex. P/ 12 was obtained. According to the F.S.L. report, blood stains were found on almost all the articles, including- Gupti, except the plain soil. The articles were sent for further examination to the Institute of Serology, Calcutta and report EX.P/ 13 was obtained. The blood stains found over the hairs, full shirt and lungi were said to be human blood and origin of the blood found over other articles, including the Gupti could not be ascertained on account of their disintegration. (3) After completion of the usual investigation, charge sheet was filed in the Court of Chief Judicial Magistrate, Kanker, who in turn committed the case to the concerned Sessions Judge, from where, it was received on transfer by the 2nd Additional Sessions Judge(FTC), ,jKanker, who conducted the trial and convicted and sentenced the appellant as aforementioned. (4) Admittedly, there are no eye—witnesses in this case and the conviction of the appellant is based on the circumstantial evidence. The @ Criminal A eal N0. 653 of2001 circumstances set forth by the prosecution are the information given by the accused/appellant to the Police Station regarding commission of murder of the deceased, which was reduced into writing vide RoZnamchasana No. 1324; memorandum statement of the appellant (EXP/4), leading to discovery of Guptiand the seizure of Gupti(EX.P/4— A) at the instance ofrthe appellant; as also the discovery of the dead body on the information of the appellant from an open field. (5)3 hri Jain, learned counsel for the appellant has not disputed the homicidal death of the deceased: Moreover, it comes in the evidence of Dr. J.S.Sahu(PW—4) as also in the postmortem report (EX.P/7—A) that the ‘a'e‘ceased sustained as many as 13 external injuries including 12 incised Wounds and the death was on account of intra abdominal haemogrhage with fracture of skull, leading to shock and death and it was homicidal in‘nature. Therefore, it was established that the death of the deceased was homicidal in nature. (6) Shri Jain has argued that the information given by the appellant regarding commission of murder of the deceased ' would not be admissible in evidence. He also argued that out of 2 witnesses of memorandum namely— Nawlu Ram (PW—9) and Chainu (PW-2), Nawlu Ram has not supported the .case of prosecution and the evidence of Chainu(PW—2) is shaky. He a1so argued that the Police Ofhcer, recording memorandum statement and conducting entire investigation, has not been examined, which is fatal to the prosecution. He further argued that the information given by the appellant to the concerned Police Station, which was reduced into writing in Roznamchasana No. 1324, has also not been' proved by‘ producing the copy of Roznamchasaha before the Court. (7) On the other hand, learned counsel for the State opposed these arguments and supported the judgment and order passed by the Sessions Court. (8) So far as the arguments regarding. confessional First Information Report is concerned, the Apex Court held in the matter of Aghnoo Nagesia Vs. State at Bihar, AIR 1966 SC 119 that " the First l than .,,.. S 4 Criminal Appeal No. 653 of 2001 Information Report recorded under Section 154 Cr.P.C. as such is not substantive evidence, but may be used to corroborate the informant under Section 157 of the Evidence Act or to contradict him under Section 145 of the Act, if the informant is called as a witness. Where the accused himself gives the first information, the fact of his giving the information is admissible against him as evidence of his conduct under Section 8 of the evidence Act. If the information is non—confessional, it is admissible against the accused as an admission under Section 21 of the Evidence Act and is relevant. But a confessional First Information Report by the accused to a Police Officer cannot be used against him in View of Section 25 of the Evidence Act”. The Apex Court also relied on the‘d‘écisions rendered in the matters of Faddi Vs. State of Madhya Pradesh, AIR‘1964 SC 1850; Nisar Ali vs” State of U.P. AIR 1957 SC 366 8a Dal Singh vs. King Emperor, AIR 1917 PC 25. Therefore, the confessional‘first information report cannot be read against the appellant. . A (9) So far as the discovery of the dead body at the instance of the appellant is concerned, that is also of no use to the prOsecution. It is the case of the prosecution itself that the dead body was lying at an open place in the fields and the School going children had seen the dead body and they had informed their Teacher. It is after all this, the Police came in the Village and the Panchnama of the dead body was prepared. In the facts and Circumstances of the case, there is no question of discovery or recovery of the dead body at the instance of the accused/appellant. Therefore, this circumstance is 'also not incriminating against the appellant. (10) As far as the question of recovery of the weapon of offence at the instance of the appellant is concerned, his memorandum statement under Section 27 of the Evidence Act has been recorded by the concerned Police Officer vide EX. P/4. This memorandum has been signed by 2 Witnesses namely -Nawlu Ram (PW-9) and Chainu (PW-2) and Nawlu Ram has not supported the cgse of prosecution. Chainu(PW— 2) has deposed that he had signed the memorandum (EXP/4) and the appellant had produced the weapon of offence after getting it out from the bushes. The Investigating Officer had made the seizure of the said 5 Criminal Appeal N0. 653 of 2001 article under Ex.P/4—A. The seizure memo also bears his signature. In the cross—examination Vide para 13, he admitted that the memorandum statement(Ex.P/4) was written and prepared by a Police Constable. He does not know the name of the Constable. However, the seizure memo was prepared by Shri Bhadoria, the Investigating Officer. It is important to mention this fact that Shri Bhadoria has not been examined by the prosecution in this case. Therefore, in the facts and circumstances of the case, an adverse inference would be drawn against the prosecution apart from the consequence thereof on the truthfulness of the discovery made on thermemorandum of the appellant. In appreciation, we fmd that the evidence of Chainu (PW—2)) the only witness who supported the memorandum and seizure’appears to be shaky. Therefofe, we refrain to rely on the testimony of this witness. Moreovpr, the blo‘od stains found over the article (Gupti) have not been proved to be human blood and the group‘test has also not been conducted. Therefore, in the considered view of this Court, the conviction based on the sole circumstance of the memorandum (EXP/4) and the seizure of the weapon (Ex.P/4-A) in consequence thereof, cannot be sustained. (11) Apart form the above, the Roznamchasana, said to be given by the accused has also not been produced and nobody has proved the information given by the accused through the RoZnamchasana, as We have already stated that the Investigating Officer, who did all this was not examined by the prosecution. (12) The learned Sessions Judge erred in law in resting the conviction of the appellant on the basis of the above evidence on record. (13) For the foregoing reasons, the appeal is allowed. The conviction and sentence awarded to the appellant under Section 302 I.P.C. are set aside. The appellant is acquitted of the charges framed against him. It is stated that the appellant is in jail since 10.7.2001. He be set at liberty, U forthwith, if not required in any other case. Sd/- um 1,, SUNIL KUMAR SINHA Judge sunita