:‘M HIGH COURT OF CHHATTISGARH BILASPUR Criminal Appeal No.558 of 1993 APPELLANT: Philip, S/o Bolo Xalkho Umo, aged 35 years, R/o Kaliya, Police STaTion Namyanpur‘, DisTT. Ruigar'h (C.G.) Versus RESPONDENT: S’ra‘re of Chhah‘isgar‘h Through P.S. Narayanpur‘. {Appeal under Section 374 (2) of The Code of Criminal Procedure, 1973} PresenT: Mr. R.K. Jain, counsel for The appellant. Mr. Sandeep Yadav, Depufy Govf. Advocai‘e for The Sfo’re/respondenf. Division Bench: - Hon'ble Mr. T.P. Sharma and Hon'ble Mr, R_L Jhanwar 5LT ORAL JUDGMENT (31-3-2010) T.P. Sharrria .T: - 1. Challenge in This appeal is To The judgmenT of convicTion & order of senTence ' daTed 26-2—1993 passed by The AddiTional Sessions Judge, Jashpur Nagar in Sessions Trial No.73/89, whereby & whereunder learned AddiTional Sessions Judge offer holding The appellanT & co-accused'Thibhu @ Alphonse guilTy for commission of culpable homicide amounTing To murder of Ursila, convicTed The appellanT under SecTion 302 of The I.P.C. and senTenced him To undergo imprisonmenT for life. 2. ConvicTion is impugned on The ground ThaT wiThouT any ioTa of evidence, The Trial CourT has convicTed '& senTenced The appellanT and Théreby commiTTed illegaliTy. . Case of The prosecuTion, in brief, is ThaT co-accused \Thibhu was having illiciT relaTion wiTh Ursila (since deceased) and she became pregnant On 14—1—89 Ursila lefT her house and finally, bones & cloThes of Ursila were found; On 14— 1—89. co—accused Thibhu & appellanT Philip who are friends commiTTed murder of Ursila aT Pakri Kachar. Bones & cloThes of The deceased were found on 23— -89. Panchnama EXP-10 was prepared. F.I.R‘ was lodged vide EXP-22. Spo‘r map was prepared vide Ex.P—4. Bone of wais’r was recovered on 23-1-89 vide Ex.P—7. Bunch of hairs was seized vide Ex.P-8. Skull was seized vide Ex.P-9. CloThes were seized vide Ex.P‘24. Blood sfained & plain soil were seized vide Ex.P-25. Blouse was seized vide Ex.P—Zé. Clo’rhes were seized vide EXP—27. ParTs of body\were seized vide EXP-28. $eized parts of body and skull were sem‘ for examinafion. Inquest was prepared vide EXP-23. Bones were examined by The forensic experT who opined Tha’r fhe examined bones belong To a woman aged abouT 25 years who died as a resul’r of injury by sharp edged weapon over scalp, vide Ex.P—32. During lhe course of invesTiga‘rion, The appellan’r was Taken info custody and he made discloser sTaTemem‘ of knife vide Ex.P-13. Blood stained knife was seized from the appellant vide Ex.P-12. Clothes were seized from the appellant vide EXP-15. Co—accused Thibhu @V Alphonse also made discloser s’ratement and articles were recovered from him. Seized articles were sent for chemical examination and presence of , blood over knife & clothes of the accused was confirmed vide Exs.P‘33 & P- 34. 4. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed before Judicial Magistrate First Class, Jashpur, who in turn, committed the case to the Courts of Sessions, Raigarh, from where learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the accused, the prosecution has examined as many as nineteen witnesses The accused were examined under Section 313 of the Cr P C In which they denied the Circumstances appearing against them pleaded Innocence and false Implication . After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties perused the Judgment and record of the trial Court 8. Co—accused Thibhu @ Alphonse has also preferred appeal against his conviction ‘ & sentence, . but same has been. z dismissed on account of completion a f his senTence and release afTer remission granTed To him by The appyropriaTe Government. Learned counsel for The appéllanf vehemently argued ‘rha‘f conviction is based on fhe evidence of Ganesn Prosod (PW-8) before whom the alleged ex‘rr'a judicial confession has been made by ihe appellant which does not inspire confidence and according To ’rhe evidence of Ganesh Prosod (PW-8), The accused has made exlro judicial confession in preSence of police, Therefore same is hi1 by Secfions 25, 26 & 27 of The Indian Evidence ACT, 1872. The prosecuTion has also seized knife 6i cloThes aT The insfonce of the accused and 11 blood was found on cloThes & knife, buT blood group found over cloThes & knife has noT been deTermined, even The prOSecuTion has noT been able To prove ThaT blood found over knife & cloThes wos human blood or noT. 10. On The oTher hand, learned SToTe counsel opposed The appeal and submiTTed ThaT convicTion is based on exTra judicial confession mode To Gonesh Prasad (PW-8). Evidence of Ganesh Prasad (PW—8) inspires confidence and iT is TrusTworThy, 11. In order To apprecia’re The argumenTs advanced on behalf of The parTies, we have examined The evidence adduced on behalf of The prosecuTion.- 12. In The presenT case, dead body of The deceased was noT found inTacT, buT pieces of body were found and cloThes were also found near The place where parTs of body were found whichvwere idenTified by The wiTnesses and on The basis of such idenTificaTion, The Trial CourT has arrived aT a finding ThaT parTs of The dead body found near The cloThes were of deceased Ursila. DeTailed finding relaTing To dead body and injuries found over scalp is based on The evidence collecTed on behalf of The prosecuTion. AT This sTage, we do noT find any illegaliTy in such finding. 13. As regards compliciTy of The appellanT in The crime in quesTion, convicTion is subsTanTially based on The evidence of Ganesh Prasad (PW-8) who has deposed ,J in his evidence ThaT alThough before such sTaTemenT appellanT“ Philip was noT known To him, buT when police was invesTigaTing The offence, The appellanT & co—accused Thibhu @ AlphonSe made exTra judicial confession before him and The appellanT sTaTed ThaT he along wiThAThibhu has commiTTed The murder of Ursila. Defence has cross-examined This wiTness aT lengTh. In para 8 of his o cross-examinafion, he has specifically admitted fhm‘ only Thibhu has made ex’rr-a judicial confession of guil’r before him, buT bo‘rh the accused had admiffed their guil‘r in presence of police. Evidence of Ganesh Prasad (PW-8) is sufficiem To esfablish The facf ThaT Thibhu has made exfra judicial confession of guil’r before him and fhe appellant herein has made extra judicial confession before police which is hit by Sections 25, 26 & 27‘of the Indian Evidence Act, 1872. 14. The prosecufion has also examined witness relating to recovery of knife & clothes at the instance of the accused/appellant. One knife & clothes were seized at the instance of the appellant, same were examined by the forensic expert and presence of blood was confirmed on the same, but the prosecution has not collected any material to show that blood found over clothes & knife was human blood or of the group of the deceased. 1.5. In absence of evidence relating to extra judicial confession, only the evidence / relating to recovery of weapon at the instance of the appellant remains for consideration which is not sufficient for drawing inference that blood of the deceased was found on the knife or the appellant has caused injury with the knife recovered at his instance. In absence of any other material, this evidence is not prv'ma fac/e sufficient for drawing inference that the appellant has committed murder of Ursila. While convicting the appellant, the trial Court has not considered the aforesaid aspect of the case and thereby committed illegality. 16. For the foregoing reasons, we are of the considered view that in the present case, the prosecution has utterly failed to adduce any evidence to prove the guilt of the appellant and in absence of such evidence, conviction & sentence of the appellant are not sustainable under the law. 17. Consequently, the appeal is allowed. Conviction of the appellant under Section ’302 of the I.P.C. and sentence of imprisonment for life are hereby set aside. The appellant is acquitted of the said charge. He is on bail. He need not surrender. d/- fl R.L. Jhanwar Soma Sd/— l Judge l T.P. Sharma i l l ., {Pdbe r