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2012 DIGILAW 207 (CHH)

DEO LAL MANDAWI v. STATE OF C. G.

2012-08-16

RADHE SHYAM SHARMA, SUNIL KUMAR SINHA

body2012
JUDGMENT Sunil Kumar Sinha, J. 1. This appeal is directed against the judgment dated 17th May, 2012, passed in S.T. No. 138/2009 by the Sessions Judge, Bastar at Jagdalpur (CG). By the impugned judgment, the appellant has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.2000/-. 2. The facts, briefly stated, are as under:- Dead body of deceased- Mangal Singh was found at an open place on 7.10.2009. Merg intimation (Ex. P/1) and First Information Report (FIR Ex. P/10) were lodged. The FIR was made against unknown person. The Investigating Officer reached to the place of occurrence, gave notice (Ex. P/2) to the Panchas and prepared inquest (Ex.P/4) on the dead body of the deceased. The dead body was sent for postmortem to Community Health Centre (CHC), Bhanpuri. The postmortem examination was conducted by Dr. K.S. Paikara (PW-8), who noticed multiple serious injuries on the dead body of the deceased and opined that the cause of death was shock on account of complications of the injuries of head and it was homicidal in nature. The postmortem report is Ex. Pill. The case of the prosecution is that on 9.10.2009, a village Panchayat was convened and in the said Panchayat, the appellant made extra judicial confession that he had committed murder of the deceased. Thereafter, the appellant was taken into custody and his memorandum statement (Ex.P/6) under Section 27 of the Evidence Act was recorded and Gagada (fitted with wooden handle) and Danda were seized at the instance of the appellant vide seizure memos Ex. P/7 and Ex. P/8. The seized articles were sent for chemical examination to Forensic Science Laboratory (FSL), Raipur, from where, a report (Ex. P/25) was received. According to the FSL report, blood stains were found on the Danda and clothes of the deceased. However, no report relating to origin and group of blood could be filed. The case of the prosecution was mainly based on extrajudicial confession made by the appellant in village Panchayat. Kheduram Thakur (PW-3), Ganeshiya (PW-7), Dinbandhu (PW-9) and Sakharam Nag (PW10) are the witnesses of extra judicial confession. The learned Sessions Judge relied the testimonies of these witnesses and held that the extra judicial confession was duly proved and further, blood stained Danda was seized at the instance of the appellant, therefore, the appellant was liable for punishment under Section 302 IPC. The learned Sessions Judge relied the testimonies of these witnesses and held that the extra judicial confession was duly proved and further, blood stained Danda was seized at the instance of the appellant, therefore, the appellant was liable for punishment under Section 302 IPC. 3. Mr. Vinod Kumar Sharma, learned counsel appearing on behalf of the appellant has argued that there was no eye-witness to the incident; the case of the prosecution was based on circumstantial evidence; the circumstances were not fully established; the circumstances were capable of being explained and the chain of circumstantial evidence was also not complete. About extra judicial confession, he vehemently argued that the Panchayat was convened by the Police, therefore, that would not be admissible in evidence against the appellant. 4. On the other hand, Mr. Akhil Mishra, learned Dy. Government Advocate appearing on behalf of the State opposed these arguments and supported the judgment passed by the Sessions Court. 5. We have heard learned counsel for the parties at length and have also perused the records of the Sessions Case. 6. Admittedly, there was not eye-witness to the incident and the learned Sessions Judge has recorded the conviction on the following 2 circumstances: I. The extra judicial confession made in the village Panchayat; and II. Seizure of blood stained Danda at the instance of the appellant. 7. So far as circumstance of extra judicial confession is concerned, in Sk. Yusuf Vs. State of West Bengal AIR 2011 SC 2283 , the Supreme Court held that the extra judicial confession is weak type of evidence. It must be established to be true and made voluntarily in a fit state of mind. The words of witness must be clear, unambiguous and clearly convey that accused is the perpetrator of the crime. The extra judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility. Reference has been made to State of Rajasthan Vs. Raja Ram (2003) 8 SCC 180 and Kulvinder Singh & Another Vs. State of Haryana (2011) 5 SCC 258 . 8. In the instant case, the extra judicial confession has been said to be proved by 4 witnesses namely- Kheduram Thakur (PW-3), Ganeshiya (PW7), Dinbandhu (PW -9) and Sakharam Nag (PW-10). Reference has been made to State of Rajasthan Vs. Raja Ram (2003) 8 SCC 180 and Kulvinder Singh & Another Vs. State of Haryana (2011) 5 SCC 258 . 8. In the instant case, the extra judicial confession has been said to be proved by 4 witnesses namely- Kheduram Thakur (PW-3), Ganeshiya (PW7), Dinbandhu (PW -9) and Sakharam Nag (PW-10). These witnesses have claimed that on 9.10.2009, a village Panchayat was organized and in the village Panchayat, the appellant made extra judicial confession before them. Kheduram Thakur (PW-3) has admitted in para 7 of his cross-examination that when the Police party came to the village, he was called by the Police. He admitted in clear words that the village Panchayat was organized by the Police and he being the elder member of the village, was called in the village Panchayat. 9. Ganeshiya (PW-7) is daughter of the deceased. She deposed that the appellant admitted in the Panchayat that he had killed her father by Farsa like article. She also admitted in para 7 of her cross-examination that her Police statement was not recorded and she is telling all these facts for the first time before the Court. She admitted in clear words that she is telling for the first time that such a Panchayat was organized in the village. 10. Dinbandhu (PW-9) is also a witness of village Panchayat. He deposed about the Panchayat and confession in his examination-in chief. However, in his cross-examination in para 7, he admitted that he came to know about the incident and that the appellant had killed the deceased when Police personnels told him about all this. He admitted in clear words in para 8 of his cross-examination that it is true that he does not know anything about the incident. 11. Sakharam Nag (PW-10) is also a witness on the same point. He deposed in para 4 of his cross-examination that a Panchayat was convened at the Rangmanch of the village. There the appellant made extra judicial confession before the villagers. In para 4 of his cross-examination, he admitted that Police personnels had already caught the appellant and he was kept on the Rangmanch and it is true that he came to know about the confession when he was told by the Police that the appellant had admitted to kill the deceased. 12. In para 4 of his cross-examination, he admitted that Police personnels had already caught the appellant and he was kept on the Rangmanch and it is true that he came to know about the confession when he was told by the Police that the appellant had admitted to kill the deceased. 12. On appreciation of the evidence of above witnesses of village Panchayat and the extra judicial confession, we find that on 9.10.2009, the Police party had came to the village and the appellant was taken into custody, and then the villagers were called in the Panchayat at Rangmanch and then the alleged confession was made. This shows that the alleged confession was recorded in a Panchayat which, in fact, was organized by the Police and not by the villagers and at the time of making the alleged statement, the appellant was in custody of Police. In light of the above facts and circumstances of the case, the statement relating to the alleged extra judicial confession made by the appellant would not be admissible in evidence. We are of the view that the learned Sessions Judge completely fell into error in accepting the evidence of extra judicial confession against the appellant. 13. So far as evidence of seizure of Danda at the discovery statement of the appellant is concerned, we find that according to FSL report (Ex.P/25), blood stains were found over the Danda, but it was not proved by the prosecution that the blood stains were of human blood and further that they were matching with the blood group of the deceased. 14. We are of the view that in light of the above facts and circumstances of the case, the solitary circumstance of seizure of Danda would not be sufficient against the appellant to hold him guilty for an offence like murder. 15. For the foregoing reasons, we are unable to sustain the conviction of the appellant on the above set of circumstantial evidence. The circumstances were not fully established. The circumstances were not of conclusive nature and tendency. The circumstances were capable of being explained and the chain of circumstantial evidence was also not complete. 16. In the result the appeal is allowed. The conviction and sentences awarded to the appellant under Section 302 IPC are set-aside. The appellant is acquitted of the charges framed against him. The circumstances were not of conclusive nature and tendency. The circumstances were capable of being explained and the chain of circumstantial evidence was also not complete. 16. In the result the appeal is allowed. The conviction and sentences awarded to the appellant under Section 302 IPC are set-aside. The appellant is acquitted of the charges framed against him. It is stated that the appellant is in custody since 9.10.2009. He be released, forthwith, if not required in any other case. Appeal Allowed.