^wt:«^—^.^.-^ ^?r '^ -;:-./.' ^:^L'';^:.;i;:; -•''/-l^''":'A'fe^^ /,KII-189/aai%^-;^ ^ r-C.J.P.R.11/94/2,000 .: ^-'"s^?:.-":': ^;',-.-.-,^ APPEAL.. OF PRTSONE M^^s^>"^ '.''I ,^. :.'..'/'' 3iviSiQn;.5aEW.:^L"mlildl. n No...........£<:$3.?-..................;..Name....^9^. Father'sname ...^^/./^7^.^7Z^...^Z7^:-...5^^^.%ff...iE-t/<<''.^.^S^.. ••....••• (">.'' ' 's' r' ' ^._ 0 ^ Resideace ......^?7.^%i3^............. Age ......q^T.c®:..................... "....... ^ —r J*^ -^ - . - • • J ; Sentenced to Sy^K!yff»WUif..^9..S,<;f^'^^Qn... ...^S.^.Sr-.S^...,. ........; ......... 3-istTQ i-^^-i ^rr^KSTf'^fjy __. _s_ ^_ ,.^_ ..__ ^i'L... Under section ..,,.~~l',.'y.7.'.....^,.'..^..^.'..'..': by'5J^'..'^S..^[t^-SG!-^^17:v->^T^~t^'tJ SO^/^CJ ^'•P-C- ' ' v Ss^ M'. -^'fS^/W It is explained to the prisoner that if he states .o,r wishes to be represented by legal practitioner the Appellate C ourt will not proceed with the base for seven days unless the legal practitioner appears . If the legal practitioner does not appear within seven days he may not heard at all . )f ihe prisoner states that he does not wish to be repre- gj^sented by legal practitioner tbe court may pruceed at once with thecase and will nct be obliged to give a hearing to any legal practitioner who should appear. 2 3 4 Date of Application for copy of Judgement Uate on which copy received Date on which Appeal seat ............ .- .......................... Whether the prisoner wishesto be represented or not - Yes / No .6J4.7................................ Name..^73/%'i3%..^(?.:?^%37;?.^€......... Confinedin ...... ..^f^f^................. Jail ..^T^'^.f^fi'^^....... ................... No.......-5fc0 .f.f^ii^.y-i''..... . Dated........A9../J 6..J\W'7.. Forwarded to the CHIEF JUDICIAL MAGISTRATE 'T3l']ii3H(3.c^^Sm>-7^6S~...... I^T/C :y^~V'-s7TfTc '7n'"ycf—i~S!oj^^, togather which a copy of judgement or order passed in the case for favbui of Trahs mission to the proper Appellate Court. ^C/3'7.—S./-/^. 4^U/§.5- off^T^ST^I'^./- Supenntendent ^ • . Superintendent, •a-!-As3ag.aipiiiT-.. tfAB.)... Date of receipt in... ........ ... ................ office Date ofreceipt record tq./accompanythe. Memo of'Appeal to ihe Appellale court '..•'i, ff'"^SSCl,.' No . ;,f»u'«ia-~*Ai~«.'!p*-3e^~'°'"' Dated .. ...a(i>.;i.C<tB«'WSMsu?l»^J?Eatt. jlABAl.FUft Forwarded to the ........... ... . .....'.......'.. 7- r »??' "730- *«<limNB»H*-..n..va-n.^-S^, i .Dat&ofreGeiptinApp6llateGburt ...... ...J.....". ......... ...... f?.'.\'.'J^7.^ ''...:. ? BKaiptOuk ' 1S>^ 0- >»t • i" ijly, p ;']" O^ »/-'*-*^- : "*^L'*^n ~ IJ ~ '• HI&H COURT OF JUDICATURE CHHAmSSARH: BILASPUR CRIMINAL APP64L N0.2345 OF 1997 CRIAUNAL APPE^L N0.2379 OF 1997 ANO CRIMINAL APPEAL N0.2380 OF 1997 JU&eMENT FOR CONSIDERATION & u^^ HON'BLE THE CHIB: Sd/- ChiefJustice jJsii ' ( CE Sd/- L.C.BHADOO Judge Postitfor:f? /04/2003 Sd/- L.C. Bhndoo Judge >. / ?iB EE ; • HI6H COURT OF JUDICATURE CHHATTES6ARH: BILASPUR DIVISION BENCH: . HON'BLE SHRI K.H.N. KURAN6A, CJ & HON'BLE SHRI L.C._BHACiOO, J CRIMINAL APPEAL N0.2345 OF 1997 Daypkmm Soihu VERSUS The State of Madhya Pradesh CRIAUNAL APPEAL N0.2379 OF 1997 Dayakram Sahu VERSUS The State of Madhya Pradesh AND CRIMINAL APPEAL N0.2380 OF 1997 Dayakram Sahu VERSUS The State of Madhya Pradesh Present; Mrs. Savita Tiwari, Advocate for the appellant. AAiss 5. Singhai, Dy. 6ovt. Adv., for- the State/respondent. JU&GMENT (Delivered on^&pf April 2003) >. / The following Judgment of the Court was delivered by L. C. Bhadoo, J: These appeals have been preferred by the accused/appellant through Superinfendent, Centrol Jail, Raipur being aggrieved by tine judgm'entsof conviction and sentence dated 24/09/1997 passed by the ^ n [.I s^ ^ ..^ -'.:'f° t-- learned V Additional Sessions Judge, Durg in Sessions Trial Nos.448 of 1995, 451 of .1995 and 452 of 1995 by which the learned Additional Sessions Judge convic^-ed the accused/appellant undsr Sections 302 and 201 of the Indian Penal Code for committing fhe murder of bevsari Bai, Parmila Bai and Rambishud and sentenced him in each cose separately i.e. in all the sessions "tt'ial cases mentioned above to undergo imprisonment for life and' to pay fine of fts.2,000/- in default of payment of fine to undergo further simple imprisonment for one year under Section 302 of the Penal Code and to undergo rigorous imprisonment for two years under Section 201 of the Indian Penal Code, on each count. 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 incident is also same, therefore, it is convenient to decide oll 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 Station, Deori at about 10.00 in the night aiong with other persons namely Patel ©angaram, Panchas Radhelal and Ratiram, his brother Surendra Sahu and Subedar statin9 that on that day i.q. 21/08/1995 at about 2.00 P.M. during the day he/vent to the well of his house for fetching the water. On reachin9 the well he saw that the dead body of his niece Devsari Bai is floatihg on the water. On this, he immediately informed the persons namely (5angaram, Radhelal, Ratiram, Dhan Sahu and Santu 5ahu and came tp.the Poiice Station. Devsari Bai has committed suicide by R( r>feiiaiiF sfv^msswinwi.•sswwv.'iww^'^^- jumpjng into the well. Upon this Mer9 intimation, during the investigation when on the next day the Police reached the site of incident and they started takin9 out the body of Devsari Bai they also found the dead bodies of Parmila Bai and Rambishud in the well and ©addaand Chaddar were also found in the well. Regarding the death of Parmila Bai - wife of Surendra Sahu, the Kotwar of the viilage namely Deepakdas gave a Merg intimation (Ex.P/3) which was registered as Merg Intimation No.17/95. There were injuries on .the head and temporal region of the dead bodies and fracture was also found. After conducting the post mortem when the doctor opined that it is a case of homicidal death the case was registered for murder and during the investigation the accused/appellant Dayakram gave the information under Section 27 of the Evidence Act about the weapon of offence an adze (Vasula), an instrumerit meant for chiseling and cutting of the wood and the blood smeared ctothes. Shanti &ai (PW-3) wife of the accused ggye statement that the accused had made extra judicial confession before her that after committing the mur-cier of all the three deceased he has thrown their bodies into the well and further this fact wasnarrated by Shanti Bai (PW-3) to his father Dukal (PW- 2). The statements of these witnesses were got r'ecorded under Section 164 of the Code of Criminal Procedure. (4) After completing the investi9ation, the police filed separate chqrge-sheet for each of the three murder cases for the offences ^nishaible under Sections 302 and 201 of the Indian Penol Cade.. '• • • ,(5) The learne'd Additiondl Sessions Judge fromed the charges in each of the 5essions trial under sections 302 and 201 of the I.P.C. and e:xp!aine3 to the accused, who, in turn denied the charges. ,^—. '• :;s ^i^ sw .^/ (6) The prosecution in order to prove the charges against the accused appellant examined in all twelve witnesses at the trial. On the other hand, the statements of the accused appellant were recorded In ail the three cases under Section 313 of the Code of Criminal Procedure in which he simply denie^l the statements of the prosecution witnesses. In defence the; accused appellant produced one witness Prem Prasad Mishra (&W-1). (7) The Additiohal Sessions Judge after hearin9 the learned Public Prosecutor and the leamed counsel for the accused convicted and sentenced the accused aippelloint in all the sessions cases as mentioned above. (8) We have heard Smt. Savita Tiwari, learned counset for the accused/appellant and Miss Sharmila Sin9hai, learned Dy. (5ovt. Advocate, for the State/respondent. (9) Learned counsel appearing for the accused/nppellant 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 bai (PW-2) has resiled from her previous statement about the extro judicial confession. Therefore, the statement of this witness does not inspire confidence. As far as r^tov&ries of adze (Vasula) and the clothes of the accused f are concerned, there is no report that the same were found stained with blood: Therefore, they cannot be connected with the murder ' being committed by the cccused/appellant. .. -"~\ :S) (10) On the other hand, learned Dy. 6ovt. Advocate supported the judgment of the triai Court. (11) We hwe per-used the evidence available on'records of the trial Court ond have gone through the judgment. ">•' (12) In order to ;prove the offence a9ainst the accused/appellant the prose.cution has tried to prove the offence based on extra judicial confession made by the accused before his wife Shanti Bai (PW-2) and also the circumstantial evidence about the recoveries of adze and the blood stained clothes of the occused/appellant. (13) Now comin9 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 extro judicial confession the Court must satisfy before placing reliance on the extra judicial confession that the extra 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 confession made by the accused/o.ppella.nt befor^ his wife Shanti Bai (PW-2) and convicted the accused/appellant on that basis. If we scru-t-inized the statement of Shanti Bai (PW-2) in Sessions Trial No.448 of 1995 she has soid that / ''- is his husband, Surendra is her brother-in-law being the eldec brother of her husband and both of them reside separately. The accused woke her.up in the night and informed that after murdering his Bhabhi Parmila Bai, niece Devsari Bai and nephew Rambishud he has thrpwn the bod.ies into the well. On the second day fri9htened by the incident she;left for her maternal house and she informed her fa+her ^ R^ ^^ about the statement of the accused/appellant. About this, she gave the statement under Section 164 of the Code of Criminal Procedure. She has stated that his husbomd Dayakram and his brother Surendra are residing separately. In the Sunday night his husband did not tell anything to her. He did not tell her that he has murdered his Bhabhi, niece and nephew. This witnesg has been declared hostile and on cross- examination by the Publifc Prosecutor she has said that she did not give the statement (Ex.P-2) and she does not know how the police has recorded the said statement. She told her father that she does not know how her sister-in-law (Jethani) and her children died. She has said that it is wrong that his husband discloses her in the Sunday ni9ht at about 1.00 P.M. that he has murdered his Bhabhi, niece and nephew and she did not give the statement before the Court about the murder. In Paro 6 of her statement she has said that jt is true that in the night her husband woke up her from sleep and told her that after murdering his Bhdbhi, 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 Magistral-e. In the cross examination by the learned counsel for the accused, she has said that she can sign whenever she is asked 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 / - , • murdg?rs. 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 flccount of the fear of the Poiice she gave the statement. Therecfter in the next line she has said that whatever she is knowing she gave before the-Police. Agoin in her statement she has said that it is true thqt she was frightened by the Police. E'/en in the Court she was f"s ! .? Us •frightened by the Police. Again on a question she has said that even today she is 9Jving the statement being frightened and said that she is fri9htened that what she will utter in the Court. Even in para 11 she has said that while giving the evidence before the Magistrate she was frightened. In para 12 of her statement she hus. said that when the Police co.ms. to her house being scared by the Poiice she left for her maternal house. In Pora 13 of her statement 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 statement she has said that when she came to know about the deod bodies in the mornin9 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 ond thrown into the well, It is true that in our family and in the family of Surendra the chiidren were going to the house of each other. The rehtions between the accused ond Surendro were cordial. (14) Looking to the above statement of Shanti Bai (PW-2) it cannot be soiid that the above statement is true and made voluntarily for the reasons that at some places she has said that before the Magistrate and alao before the trial Court she gave the statement under the fear of the Police. It is true that the accused is her / --. ft ^.hi^sband. Therefore, there is a possibitit/ that she might have resiled from her preyious statement. If we look at the matter from that angle then this principle also applies when she initiolly told before the Ma9is+''ate and to his father arid she was knowing that if she will disclose 'the confession made by the accused before them that will -ultimately be 9oin9 to effect and harm the interest of her husband and (-S1 he will be implicated in the crime. In number of occasions during her statement before the trial Court she has changed her stand, 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 the offence against the accused/appelldnt. The answer, looking to the statement of this witness. is that this statement of the witness cannot be relied upon and cannot be made the sale .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 not said before the Magistrate that his etaughter informed him that her husband after murdering three persons threw their bodies into the well. If we look at the above 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 before 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,. ther^-fore, 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 Statibn to lod9e the report about the death of Parmila Bai. He informed thfe yillagers. No other witness has come forward to state whether the accused and the family of the deceased had any strained, 1 /^ relations. Even though Surendra (PVV-1) has Said thdt he and h's brother were residing in one house and they had partitioned the land of the father. That partition took place in front of the Panchas. He has said that at the time of the partition, Dayakram - the accused said that how you had got deposited rupees twenty thousand in your bank account. He cau9ht hold of his'collarand the accused admitted before him that he committed this mistake but in his evidence it is not mentioned that when this incident took place and eyen thereafter whether he was having animosity against him. Therefore, based on this statement of PW-2 Shanti Bai it cannot safely be concluded that whether ;n fact the accused is r-esponsible 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 poiice 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 ni9ht he did not tell anything to her. She woke up only in the morning. In para 7 she has said that when the Police came for the first time to the house ther' she hos 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 possibj^ because everyone was sayin9 so, I said it may be possible. (16)- &r. D.L. Ramteke (PW-8) who conducted the posT mortem on the.desd body of deceosed Devsari Bai, has proved the post mortem .report (65<.P/15) in which he has 9iven his opinion that the cause of death see-FfSto be homicidal and the fro.cture and incised wounds were 'v 10 found on the head of the deceased and all the injuries were ante mortem in nature. Simitarly, about the death of deceased Parmila Bai, this witness has deposed as PW-8 that he conducted the post mortem on The body of the-deceased three incised wounds were found on the neck and on the head. The injuries were ante mortem in nature and t'ne nature of rhe death was homicidal. The post mortem report is Ex.P/14. Similarly, about the dedth of Rambishud, &r. 5.5. Devdas has again deposed as PW-8 that the death of Rambishud was ho.middal and post mortem report is Ex.P/12. Three injuries were noticed on the head and neck of the deceased and fracture was found on the head. Therefore, in view of the stg.tement of doctor and the post mortem reports, it is proved that the death of the three deceased viz. Parmila Bai, Cievsari Bai and Rambishud were homicidal in nature. (17) Now coming to the question of recovery of the adze (Vasula) on the basis of the informcition (Ex.P/17) given by the accused/appellant that he can get recovered the adze, by which he committed the offence, Sarpdnch Munnalal Deshlahare (PW-10) has said that through Ex.P/9 the accused at his instance 901 the adze recovered fr'om his house and a Baniyan, underwear and Dhoti were also recovered at his instance. On this adze it is mentioned in the recovery merno ttiat there wer^ blood stoins and on the Baniyon and underwear there were also blood stains. But if we look at the report (Ex.P/2§) o-f the Foren^c Science Laboratory, this shows that the / blood- was found on the Bcuiiyan-(Article-I) but no blood was found on underwear. The blood was found on Articles I and K. But 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 serol09ist that the blood 6n the adze was human blood and the group of that blood was o-f^.. 11 the same group which were of the deceased persons. In view of this, on the basis 6f the recovery and the report of the FSL, the accused cannot be connected with committing the crime by the adze as mentioned above. (18) In the result, in of'der to fasten the crime on the accused and convict him for the murder of his own Bhabhi, nephew and niece the circumstantial evidence adduced by the prosecution is not such that on the basis of that it can only be inferred that the heinous crime was committed by the accusad only and innocence of the accused is ruled out. All cther circumstances 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 sustoined because the finding of the leamed trial Court is no+ based on any convincing evidence. As such, Criminal Appeal Nos. 2345 of 1997, .2379 of 1997 and 2380 of 1997 are allowed. The conviction and sentence awarded to the accused/appellant for the offences under Sections 302 and 201 of the Indian Penal Code in Sessions Trial Nos.Nos.448 of 1995, 451 of 1995 and 452 of 1995 are set aside. The appetlant be set at iibert/ forthwith if not required in any other case. •• / .Sd/- GhiefJustice ^d/- L.G-Bhadoo judge BrQjesh3