o^" HIGH COURT OF CHHATTISGARH, BILASPUR Single Bench: Hon'ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 189 of 1994 Madkami Satyam Vs. . State of M.P. (Now State of Chhattisgarh) JUDGMENT ^ / Post for Judgment :1( /09/2011 Sd/- Sunil Kumar Sinha Judge ->lt!? C;t HIGH COURT OF THE CHHATTISGARH AT BILASPUR Single Bench : Hpn'bl^Shri Sunil Kumar Sinha, J. Criminal Aopeal No. 189 of 1994 APPELLANT RESPONDENT Madkami Satyam, S/o Madkami Tamaiya, Aged about 22 years, Cultivator, R/o' Village Dhodra, Pafelpara, P.S. Konta, District Bastar M.P. (Now Chhattisgarh) Versus State of M.P. (Now State of Chhattisgarh) tCriminal Appeal under Section 374 (21ofthe^The Code of Criminal Procedyre, 1973 ApDearance: Mr. Ram Kumar Tiwari, Advocate for the appellant. Mr. Satish Gupta, Govt. Advocate for the State. JUDGMENT (21.09.2011) (1) This appeal is directed against the judgment dated 21.01.1994 passed in Session Trial No. 348/88 by the Second Addttional Session Judge, Jagdalpur, District Bastar. By the impugned judgment, the appellant has been convicted under / ' Sedsions 30.4-A 8s 201 IPQ and sentenced to undergo R.I. for 2 years and.R.I. for 6 months respectively with a direction to run the sentences concurrently. ^. Criminal Appeal No, 189 of 1994 The facts, briefly stated, are as under:- The case of the prosecution is that on 12.05,1988, deceased- Ku. Madkami Jayo, a girl aged about 12 years, had gone for plucking mangoes. Her parents had gone to "Bazaar". At about 2 p.m., Madkami Tamaiya (P.W.2) informed the father of the deceased Madkarai Penta (P.W.l) that the appellant was telling him that the deceased has fell down from a Mahuwa Tree. Qo this he went to the tree and found that the deceased was lying dead, she had received an arrow injury on her neck. They also saw the impressions of dragging on the earth towards the direction of the house of the appellant. On this Madkami Penta (P.W.l) went to the house of the appellant and asked as to who killed her daughter? The appellant replied that he sought an arrow by a bow on bird but unfortunately, the arrow hit the neck of the deceased. According to the prosecution, the appellant also admitted that thereafter, he dragged the deceased and left the dead body under the Mahuwa Tree. The matter was informed to village Patel SE Sarpanch and then the first information report (Ex-P-1) was lodged by Madkami Penta (P.W.l). Merge intimation (Ex-P-12) was also lodged. The investigating Officer reached to the place of occurrence, gave notice (Ex-P-4) to the Panchas and prepared inquest (Ex-P-6) on the dead body of the deceased. The dead body of the deceased was sent for post-mortem to Primary Health Center, Konta. The post-mortem examination was conducted and pogt-mortem report (Ex-P-13) was received. According to the post-mortem report, fhere was a stab wound at the level s*t of Thyroid Cartilage 3 X 1 c.m. and there was another incised wound over the posterior aspect of the neck 2X1 c.m. The:cause of death was shock as a result of above injunes. Criminal Aooeal No. 18S of 1994 In further investigation, fee appellaat was taken iat-o custody and his memorandum statement (Ex-P-7) under Section 27 of the Evidence Act was recorded and one arrow and Bow was seized at the instance of the appellant vide seizure raemo Ex-P-Ss Bl» (4) Madkarul Tamaiya (P.W.2) has tumed hostile. Madkami Veeri (P.W.7 - raother of the deceased) has also turned hostile. Madkami Penta (P.W.l) did not depose that he had gone to the house of the appellant and appellant made extra judicial confession before him. He deposed that he was told by Madkami Tainaiya that the appellant had sought an arrow on her daughter, due to which she died. Doctor has not been examined in this case and the post-mortem-repbrt has also not been proved. The learned Session Judge held that on the evidence of Madkami Pehta (P.W.l), Madkami Veeri (P.W.7) and Assistant Sub-Inspector Indramadi Tiwari (P.W.8), it was established that there was impression of dragging on the earth near the dead body, which went towards the direction of the house of the appellant, therefore, the involvement of the appellant was proved; and as the story of the prosecution was that the appellant had sought an arrow on the bird which hrt on the neck of the deceased, he would not be / liable for pu^iishment under Section 302 IPC and he was Uable for punishment under Section 304-A 8s 201 of IPC. (5) Mr. Ram Kumar Tiwari, learned counsel appearing on behalf of the appellant", submitted that the case of the prosecution was "^ Criminal Anpeal No. 189 of 1994 based on extra judicial confession, which was not proved and the conviction based only on impression of dragging over the earth, cannot be sustained. On the other hand, Mr. Satish Gupta, learned Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Session Court. (7) I have heard learned counsel for the parties at length and have also perused the records of the Sessions case. r'v (8) Admittedly, Madkami Penta (P.W.l) mentioned in the P.I.R and merge intimation 'that the appellant m.ade extra judicial confession before him, but in his Court evidence he did not depose about it. On the contrary, he deposed that he was informed by Madkami Tamaiya (P.W.2) that the appellant had assaulted the deceased by an arrow. Madkami Tamaiya (P.W.2) has tumed hostile. He only deposed that the appellant told him that the deceased had died as she fell down from Mahuwa Tree and he told thi& to the mother of the deceased namely- Madkami Veeri (P.W.7). Madkami Ve.eri-^P.W.7) has been declared hostile. She deposed / • that Madkami Tamaiya (P.W.2) told her that the appellant had s«». assaulted her daughter by an arrow. Since, Madkami Tamaiya (P.W.2) has turned hostile and he did not depose that he told either to the mother or to the father of the deceased that the , , s aip^iellant had assaulted the deceased by an arrow, the evidence of -^ ^ ^.\.' ^ • / i Criminal Appeal_No. 189 pf_1994 Madkami Penta (P.W.l) and Madkami Veeri (P.W.7) would be of no use. Even otherwise, the evidence relating to alleged oral declaration made before Madkami Tamaiya (P.W.2) was hear-say evidence for these witnesses. The alleged extra judicial confession made by the appellant befcre Madkami Penta (P.W. 1) was also not proved by him, though he had raentioned the fact of extra judicial confession in the F.I.R., but that cannot be treated as substantive evidence. (9) It comes in the evidence of many witnesses that the house of the appellant was at a distance of 107 meters from the Mahuwa Tree and the so called impression of dragging was not through out from the house of the appellant to the Mahuwa Tree. The Session Judge has relied on this circumstance and has convicted the appellant. The Session Judge, iri the hypothetical manner, has held that the deceased received injuries by arrow by-chance when the appellant sought arrow on the bird. (10) On due consideration of the entire evidence available on record, I am of the view that the evidence of inipression of dra^ging alone was not sufficient to convict the appellant even under Section 304-A and 201 of IPC. In absence of any concrete / - proof in this. regard, the conviction base on such week evidence s-^ cannot be .sustained. The Session Judge has held that soil having blood like stains was seized from near the house of the appellant •.and according to the FSL report blood stains were found on the T.^ so.il:^ but .in absence of- Serologist report relating to origin and '.^ 'Y Criminal Aopeal No. 189 ofl994 group, only on account of seizure of blood stained soil, the conviction was not possible. (11) Accordingly, the appeal is allowed and the conviction and sentences awarded to the appellant under Section 304-A and 20 1 of IPC are set aside. He is acquitted of the charges framed against him. The appellant was arrested oh 14.05.1988 and was released on bail on 29.08.1988, thereafter for some default, he was re- arrested on 14.07.2011. Presently he is in jail, he be released forthwith, if not required in any other case. Sd/- Sunil Kumar Sinha Judge rahul 'l^ "^ 1