It 1s explamed to the prxsoner that 1f he states or w1shes to be represented by legal ”%act1tloner the Appellate Court Will not proceed w1th the base for seven days unless Rpldence I * $37 Wajay V/entenced to \Ti/U’§qa7m’c’/\7H"QV@%I—< On p3 9.1.9:71....... . Lgw‘gabvil- .Jr ool mm: / Under sectlon £ /Q?6j x755 wqo byH/e/o' VJ? yr]? qWrlrH’fl %wf&1/e yy a/ 7V0 ' 94/8/95 the legal practitioner appears If the legal practrtioner does not appear Within seven days he may not heard at all lf the prisoner states that he does not wxsh to be repre- sented by legal practitioner the court may proceed at once With the case and Will not be ,p‘obliged to give a hearing to any legal pract1ttoner who should appear . L. V i l Date of Application for Eopy of Judgement Date on Which copyreceived / ’Date on which Appeal sent .. .. x Whether the prisoner wishes to be represented or not — Yes / NO Nv b). £ i ..g;_b:7 $1 .. .. Name W W S/L I64] i/J f7— Coniined in “0)359 Jail a??? 3K @c axe) ‘35) /?}i&‘/J? Dated......c§o/.Jo /i99¥— Forwarded to the CHIEF JUDICIAL MAGISTRATEHW~ 3;”“7v Qm g #1941};I . togather which a copy of Judgement or order Mayo passed see, in the ,«q/2775 case for any; favour wx, of trans- K’ a @ mission to the proper Appellate Court. Wt r/ ~ 3/ n/o <’§8/9g o5; nten ent UM Wgéhx/ §ug men ent l éwtral wrhipur. (VLF l WF’ " “W My”? Date of receipt in... office .. d“? gABaLL Date of receipt record to accompany the ' M“ “a! Mi« seade /% Wg? Memo of Appeal to \ihe Appellatecourt Dagé?.u.u.l 99 .......'.. '‘ thww‘ ‘ at k ww Forwarded to the . 4”., . .... ... ...... mm. Date of receipt in Appellate Court ...... L (J/ W N ”" W 7 ‘1) IéH COURT OF JUDICATURE CHHATTISGAkH: BEILASPUa CRIMINAL APPEAL N02345 OF 1997 CRIMINAL APPEAL N02379 OF i997 AND CRIMINAL APPEAL NO.2380 OF 1997 JUDGMENT FOR CONSIDERATION A Sdl- L.C.BHAD00 Juge d ')/04/2oo3 9 pt l/f/%' g ¥,\" f h \ ‘wh W Chief Justice ir Posw femg /o4/2oo3 Sdl- L.C. Bhadoo Judge H Ja HIGH COURT OF JUDICATURE CHHATTISGARH: BILA$PUR a DIVISION SENCH: HON'BLE SHRI K.H.N. KURANGA, CJ & HON'RLE SHRI LVCV RHADOO .T CQIMINAL APPEAL NO.2345 OF 1997 Dayakmm Sahu ‘- VERSUS The Sfa‘i’e of Madhya Pradesh CRII'VXINAL AWEAL NO.2379 OF 1997 Dayakr'qm Sahu VERSUS The 5mm of Madhya Pradesh AND CREMINAL APPEAL NO.2380 OF 1997 Dayakmm Sahu VERSUS The Sfa're of Madhya PFadesh Present Mrs. Savifa Tiwar-il Advoca‘l‘e for fhe appeHanf. Miss 5. Singhai, Dy, Govt Adv., for fhe 5+a:e/r-esponden+. 73.: JUDGMENT) (Delivered on?&of Apr“ 2003) The following Judgment of fhe Coyrf wa£ deiivered ‘ by L.C_»§{1;d_d00, J: These appeals have been prefer-red by The accused/appeHant Through Superinfendenf, CenTml JaiL Raipur' being aggrieved by The judgmen‘i’s of convicTion and semence defed 24/09/19§7 peggedihw / % i‘earned V :Addifional Sessions Judge, Durg in Sessions Tria! Nos.448 of i995, 451 of 1995 and 452 of 1995 by which me Ieamad Addmoml Sessions Judge convic‘l'ed The accused/appelian‘r under Seciious 302 und 201 of The Indian Pencxl Code for commiifing The murder of Devsm‘i Bai, i Parmiia Bai and Rombishud and sen'fenced him in each case separafely i.e. jn all The sessions’frial cases men'i'ioned above +a undergo imprisonmen'i' for life and 1‘0 pay fine of Rs.2,000/- in defauli of bayifneni’ of fine To undergo furTher simple imprisonmenT for one year under SecTion 302 of The Penal Code and To undergo rigorous imprisonmenf for Two years under SecTion 201 of’dhe'l‘ndian Penai Code] on eachlcounT. BoTh The senTences were direcTed To run concurrenTly. (2) All These Three criminal appeals are being decided TogeTher as They relaTe To The crime commiTTed aT one poinT of Time. Since The wiTnesses are same and incideni‘ is also same, Therefore, iT is convenienT To decide all These Three appeal TogeTher. (3) The relevanT facTs for The disposal of These appeals are ThaT on 21/08/1995 accused/appellanT Dayakram himself reporTed The maTTer To The STaTion House Officer, Police STGTion, Deori aT abouT 10‘00 in The nighT along wiTh oTher persons namely PaTel Gangaram, Ponchos Radhelal and RaTiram, his broTher Surendra Sahuand Subedar sTaTing ThaT on ThaT day i.e. 21/08/1995 aT abouT 2.00 PM. during The day he wenT To The weil’ of his house for feTching ”(The waTer. On reaching Theiwell he saw Tha‘i' The dead body of his niecebevsari Bai is floaTing on The waTeri On This, h'e immediaTely informed The persons nameiy Gangaram, Radhelal, RaTiram, Dhan Sahu and SanTu Sahu and came To The Police 5TaTion. Desari Bai has commiTTed 5% fix ' y ijumping info fhe we” Upon fhis Merg m'hma‘hon during fhe Inves‘hgafron when on 'rhe nex‘r day fhe Police reached The ssTe of inciden? and ‘rhey s‘mrfed Taking om fhe body of Devsam Em 1hey aiso found The dead bodies of Parmlla Em and Ramblshud m The we” and éadda and Cheddar- were also found m The well Regarding fne dea‘lh of Parmlla Ba! - Wife of Surendm Sahu The Kofwar of The Village namely Deepakdas gave a Merg in‘hmafion (Ex.P/3)»which was regisfer-ed as Merg Infifnafion No.17/95. There were injuries on fhe head and Temporal region of The dead bodies and frac‘lure was also found. Affer- condLic‘l'ing fhe pos‘l‘ morfem when fhe docfor opined‘fhla'’fif is a case of homicidal deal-h “fhe case was regisferecl for murder and during 1'he investiga‘l'ion fhe accused/appellanf Dayakram gave The informaTion under SecTion 27 of The Evidence AcT abouT The weapon of offence an adze (Vasula), an insTrumenT mean‘l' for chiseling and cuTTing of The wood and The blood smeared cloThes ShanTi Bai (PW-3) wife of The accused gave sTaTemenT Thaf fhe accused had made exTra JudiCIal confessmn before her ThaT afTer commiTTing The murder of all The Tnree deceased he has Thrown Their bodies inTo The well and furTher This faeT was narraTed by ShanTi Bai (PW-3) To his faTher Dukal (PW- 2), The sTaTemenTs of These wiTnesses were go; recorded under ecTion 164 of The Code of Criminal Procedure. t é‘r- (4) , AfTer compleTing The invesTigaTion, The police filed separaTe charge—sheaf for each of The Three murder cases for The offences punishable under SecTions 302 and 201 of The Indian Penal ,7 Coae k5) The learned AddiTiona Sessions Judge framed The charges in each of The Sessions Trial under secTions 302 and 201 of The IRC. and explained To The accused, who, in Turn denied The charges/ ‘ ‘ "ti‘x ' S l‘ (6) The prosecufion in order 1'0 prove the chargés againsf fhe ; accused appellam’ éxamined in a“ Twelve wi‘rnesses a1- fhe frial. On The 3 o‘E‘her hand, The sfcx‘remen‘rs of The accused appellan‘r were recorded in 1‘ail fhe Three cases under SecTion 313 of fhe Code of Criminal Procedure in which he simply denied The smfemenfs of ‘rhe prosecu‘rion lwi'rnesses. In defence The dccused appellanT produced one wiTness arem Prasad Mishra (DW—l). (7) The AddiTIonal Sessions Judge ofTer hearing The learned Public ProsecuTor and The learned counsel for The accused conVIcTed and senTenced The accused appellan‘i' in all The sessmns cases as menTioned above. (8) We have heard 5mT. SaviTa Tiwari, learned counsel for The accused/appellanT and Miss Sharmila Singhai, learned Dy. GovT. AdvocaTe, for The 5TaTe/respondenT. (9) Learned counsel appearing for The accused/appellanT argued ThaT There is no eye wiTness in This case. The case resTs only on exTra JudiCial confession made by The accused/appellanT and also on The circumsTanTial eVidence The WiTness ShanTi baa: (PW—2) has resvled from her previous sTaTemenT abouT The exTra judicial confession. Therefore, The sTaTemenT of This wiTness does noT inspire confidence. As far as recoveries of adze (Vasula) and The cloThes of The accused are concerned, There is no reporT ThaT The same were found sTained wiTh blood. [ThereforehThey cannoT be connecTed wifh The murder being commiTTed by The accused/upbellanT. ,// g? M10) On fhe o‘rher' hand, learned Dy. Govt. Advoccrl'e suppor'red The judgmen? of The frial Court a 1‘ (11) We have perused The evidence available on records of fhe : Triai Ceur‘f and have gone ‘rhr'ough The judgment (12) In order fo‘- prove fhe offence agains'r The accused/appellam' The prosecu'rion has “fried +0 prove 1'he offence based on exTra judicial confession made by ‘l'he accused before his wife Shanfi Bai (PW-2) and also The circumsTanTial evidence abouT The recoveries o'f adze and The blood sTained “cloThes of The accused/appel lanT. A (i3) Now coming To The exTra Judicial confession made by The accused/appellanT before his own wife ShanTi Bai (PW-3), as per The seTTled law on This poinT in order To base The convicTion on The exTra judicial confession The CourT musT saTisfy before placing reliance on The exTra judicial confession ThaT The exTraL judicial confession is/True, made volunTarily, reliable and convincing and Then and Then only ThaT can form The basis of convicTion. In The presenT case, The learned Trial CourT has believed The exTra judicial confeession made by The accused/appellanT before his wife ShanTi Bai (PW-2) and convicTed The accused/appellanT on ThaT basis. If we scruTinized The sTaTemenT of ShanTi Bai (PW—2) in Sessions Trial No.448 of 1995 she has said ThaT Doyakram is his husband, Surendra is her broTher—in-law being The elder broTher of her husband and boTh of Them reside separaTely. The accused woke‘her up‘fn‘The nighT'and informed ThaT afTer murdering his Bhabhi Parmila Bai, niece Devsari Bai and nephew Rambishud he has Thrown The bodies inTo The well. On The second day frighTened by The incidenT she lefT for her maTernal house and she informed her foTher ‘V‘ labouf The s‘m‘femenf of fhe accused/appeHanT. Abouf fhisl she gave ‘The smfemen‘r under Secfion 164 of The Code of Criminal Procedure. She has s’ra‘l'ed +hm' his husband Dayakmm and his brofher Surendm are residing separafely. In fhe Sunday nigh? his husband did no’r Tali lanyfhing ‘i'o her. He did nof Tell her Thai he has murdered his Bhabhi, ‘hiece and nephew. This wi‘mess has been declared hos‘rile and on cross— examinafion by The Public ProsecuTor she has said ThaT she did noT give l'i’hé sTaTemenT (EXP-2) and she does noT know how The police has recorded The said sTaTernenT. She Told her- faTher ThaT she does hoT know how her: sisTer—in-law (JeThani) and her children‘die‘d. She has said ThaT iT is wrong ThaT his husband discloses her in The Sunday nighT aT abouT 1.00 PM. ThaT he has murdered his Bhabhi, niece and nephew and she did noT give The sTaTemenT before The CourT abouT The murder. In Para 6 of her sTaTemenT she has said ThaT iT is True ThaT in The nighT her husband woke up her from sleep and Told her ThaT afTer murdering his Bhabhi, niece and nephew he has Thrown Their bodies inTo The well and ThereafTer her husband Told her ThaT if you wanT save me, oTherwise run away. She gave The sTaTemenT before The MagisTraTe. In The cross examinaTion by The learned counsel for The accused, she has said ThaT she can sign whenever she is askede To sign she signs or whenever she is asked To puT Thumb she puT Thumb impression. When quesTioned again, she has said ThaT earlier she’forgoTTen, buT iT is True ThaT her husband made exTra judicial confession abouT The Three murders. In Para 8 of his sTaTemenT she has said ThaT when she made sTaTemenT before The CourT The Police Took her To The CourT and on accounT of The fear ‘of'The Police'she gave The sTaTemenT. ThereafTer in The nexT line she has said ThaT whaTever she is knowing she gave before The Police. Again in her sTaTernenT she has said ThaT iT is True ThaT she was frighTened by The Police. Even in The CourT she vgayy/ / i i ri Q22 firigh'fened by The P¢Iice. Again on a ques‘rion she has said Thu? even fioday she is giving ‘rhe sTaTemenT being frighfened and saidgfha‘r she is fmgh'l'ened Tha‘r wha‘r she Will u‘h‘er m The Cour‘r Even m para 11 she has said Thaf while givmg The eVidence before The MagisTraTe she was ‘ErighTened. In para 12 of her' sTaTemenT she has said ThaT when The P;nlice came To her house beingscared by The Police she lefT for her maTernal house. In Para 13 of her sTaTemen‘T she again said ThaT she disclosed before The MagisTraTe ThaT she did noT know anyThing abouT The MaarpeeT: Even Today she does noT know ThaT who murdered her JeThani' nephew and niece. In para 15 of her sTaTemenTshe has said ThaT when she dame To know abouT The dead bodies in The morning she lefT The house To her maTernal house due To fear. On reaching The maTernal house she Told her faTher ThaT she has come due To The fear because somebody has murdered somebody and Thrown inTo The well. IT is True ThaT in our family and in The family of Surendra The children were going To The house of each oTher. The relaTions beTween The accused and Surendra were cordial. (14) Looking To The above sTaTemenT of ShanTi Bai (PW-2) iT cannoT be said ThaT The above sTaTemenT is True and made volunTarily for The reasons ThaT aT some places she has sgaoid ThaT before The MagisTraTe and also before The Trial CourT she gave The sTaTemenT under The fear of The Police.- IT is True ThaT The accused is her husband. Therefore, There is a possibiliTy ThaT she mighT have resiled from her previous sTaTemenT. If we look aT The maTTerifrom ThaT angle Then This principle‘alsoxnpplies when she iniTiaIly Told before The MagisTraTe‘and To his faTher and she was knowing ThaT if she will disclose The confession made by The accused before Them ThaT will ulTimaTely be going To effecT and harm The inTeresT of her husband and >/,,I i i he will be implica‘i’ed in The crime. In number of occasions during her sm‘femen’r before The Trial Courf she has changea her sfand, Therefore, The confidence cannoT be reposed on her sTaTemenT and This is The only sTaTemenT upon which The quesTion is To be decided as To wheTher on her sTaTemenT The prosecuTion has been able To bring home 1 The offence againsT The accused/appellant The answer, looking To The sTaTemenT of This wiTness, is ThaT This sTaTemenT of The wiTness ‘VcannoT be relied upon and cannoT be made The sole basis of The convicTion of The accused. (15) “Dukal (PW-3) faTher of ShanTi Bai (PW-2) has said ThaT her daughTer informed her ThaT somebody had murdered her JeThani, nephew and niece and Therefore ouT of fear she has come back. On knowing This, he immediaTely senT ShanTi Bai back. In The cross examinaTion he has said ThaT he did nof said before The MagisTraTe ThaT his daughTer informed him ThaT her husband afTer murdering Three persons Threw Their bodies inTo The well. If we look aT Theabove sTaTemenT of This wiTness, ShanTi Bai (PW-2) aT many Times as menTioned above has made conTradicTory sTaTemenT. SomeTime she has said ThaT The accused/appellanT confessed before her and someTime she said ThaT her husband did noT confess beforfe her and she gave The sTaTemenT before The MagisTraTe because of fear of The Police and even on ThaT day she was frighTened by The Police. Moreover, in view of This, Therefore, There is no oTher evidence, which goes To show and supporT The prosecuTion sTory ThaT The accused was responsible for The murder of Three persons. Even The accused himself WenT To The Police STaTion ‘To lodge The reporT abouT The deaTh of Parmila Bai. He informed The villagers. No oTher wiTness has come forward To sTaTe wheTher The accused and The family of The deceased had any sTraW / A \AI 4\ I ‘ reia‘ficns. Even fhough Surendra (PW-1} nas §aid fr'idf hé cmd his‘ br-o‘rher were residing in one house and They had parfifiohéd fhe iand of The father. Tha‘r harm-ion Took place in fron'l' of 1'he Ponchos. He has said Tha‘f a? The Time of The parii‘iion, Dayakmm - The accused said 3 Thai how you had go‘i’ deposh‘ed rupees fwen'iy Thousand in your bank f account He caugh‘r hold of his collar and fhe accused admi'H'ed before him Thai he commi’rfed mis misiake but in his evidence if is no? ‘men‘rioned fha‘i when This incidenT Took place and even ThereafTer wheTher he Was having animosiTy againsT him. Therefore, based on This sTaTemenT of; PW-Z ShanTi Bai iT cannoT safely"§be"‘concluded ThaT wheTher in faé‘T The accused is responsible for commiTTing The murder of The Three deceased persons. In Sessions Trial No.451 of 1995 in The examinaTion—in-chief ShanTi Bai has said ThaT her husband confessed before her ThaT afTer murdering The deceased persons he has Thrown The bodies of Bhabhi, nephew and niece inTo The well‘ BUT again in The cross examinaTion in para 5 she has said ThaT whaTever she has said was said on accounT of The fear of The police because The police harassed her and her husband afTer arresTing her husband. In para 6 of The sTaTemenT she has said ThaT when her husband came in The nighT he did noT Teli anyThing To her. She woke up only in The morning. In para 7 she has said ThaT when The Police came for The firsT Tii'he To The house Then she has said ThaT she does noT know anyThing: When The police said ThaT your husband had killed Three persons Then I said ThaT iT may be possibie because everyone was saying so, I said iT may be possible. (16} br: Di; RaglTeke (PW-8) who conducTed ThdposT morTem on The dead body of deceased Devsari Bai, has proved The posT mar-Tern reporT (EXP/15) in which he has given his opinion ThaT The cause of deaTh seems To be homicidai and The fracTure and incised wounds were x/ / / V ‘ wk 10 found on fhe head of fhe deceased and a“ The injuries were an're mom‘em in na‘rure. Similariy, abou’r fhe deafh of deceased’Par'miia Bai, This wimass has dep9sad as PW—8 a‘ha‘? he conducfed The posi' marl-em oh The body af the deceased ‘rhr'ee incised wounds were found on The heck and on The head. The injuries were an‘re mar-fem in nm‘ure and 'i‘he niz’rure of The dea'i‘h was homicide}. The pas? mori'em repori‘ is EXP/14. Similarly, abou’r The dea‘ih of Rambishud, Dr; 5.5. Devdas has again deho‘sed as PW-8 "rhaf The deafh of Rambishud was homicide! and pas? mor‘iem repor‘i‘ is EXP/12. Three injuries were no‘riced on The head and neck of ‘ihe deceased and fracfure was found on fhe“h‘edd.' Therefore, in view of ‘i‘he si‘aiemen‘? of doctor and fhe posi mortem repor'rs, i? is proved Thai The dea'ih of The Three deceased viz. Parmiia Bai, Devsari Eai and Rambishud were homicidcl in naTure. (17) Now coming To The quesTion of recovery of The adze (Vasuia) on The basis of The informaTion (EXP/17) given by The accused/appellanT ThaT he can geT recovered" The adze, by which he commiTTed The offence, Sarpanch Munnalai Deshlahare (PW—10) has said ThaT Through EXP/9 The accused aT his insTance goT The adze ‘xx recovered from his house and a Baniyan, underwear and DhoTi were G also recovered aT his insTance. On This adze iT jigs menTioned in The recovery memo ThaT There were blood sTains and on The Baniyan and underwear There were also blood sTains. BuT if we look aT The reporT (Ex.P/25) of The Forensic Science LaboraTory, This shows ThaT The blood was found on The Baniyan—(ArTicle-I) buT no blood'was found on underwear. The blood wesfound on ArTicles I and K. BuTi'on The basis of This reporT The adze cannoT be connecTed wiTh The murder of The deceased persons because There is no reporT of The serologisT ThaT The blood on The adze was human blood and The group of ThaT blood was of / @ l The same group which were of The deceased persons. In view of fhis, on The basis of The recovery and The repor‘r of The FSL fhe accused cannm" be conneci’ed wi‘rh commi'Hing fhe crime by The adze as i menTioned above. (18) In The resulT, in order To fasTen The crime on The accused and convicT him for The murder of his own Bhabhi, nephew and niece The ‘ VcircumsTanTial evidence adduced by The prosecuTion is noT such ThaT on The basis of Tha'i' iT can only be inferred ThaT The heinous crime was copmiTTed by The accused only and innocence ofv‘The accused is ruled ouT. All oTher circumsfances Taken TogeTher may poinT a finger of suspicion Towards The accused/appellanT buT suspicion, howsoever, sTrong cannoT Take The place of proof. (19) In The resulT, The convicTion in The above all The Three cases cannoT be susTained because The finding of The learned Trial Cour‘l‘ is noT based on any convincing evidence. As such, Criminal Appeal Nos. 2345 of 1997, .2379 of i997 and 2380'bf 1997 are allowed. The i convicTion and senTence awarded To The ‘accused/appellanT for The offences under SecTions 302 and 201 of The Indian Penal Code in Sessions Triai Nos.Nos.448 of 1995, 451 of 199?) and 452 of 1995 are seT aside. The appellanT be seT aT liberTy forfhwiTh if noT required in any oTher case. l ‘ Sdl- Ac - L.C. Bhadoo Sd/- Judge Chief Justice /O4/2003 Bra‘jesw