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2013 DIGILAW 29 (CHH)

KAWASI JOGA ALIAS PHULO v. STATE OF C. G.

2013-01-14

R.S.Sharma, T.P.SHARMA

body2013
JUDGMENT T.P. Sharma, J. :- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 18.3.2005 passed in S.T. No. 183/04 whereby and whereunder the 151 Additional Sessions Judge, Bastar at Jagdalpur after holding the appellant guilty for causing homicidal death amounting to murder of deceased Benjami Durjan and disappearance of evidence of a criminal case, convicted him under Sections 302 & 201 of the IPC and sentenced to undergo RI for life and fine of Rs. 500/- and R.I. for 1 year and fine of Rs. 500/-, in default to undergo R.I. for one month on each default. 2. Conviction is impugned on the ground that without an iota of evidence the trial Court has convicted and sentenced the appellant as aforementioned and thereby committed illegality. 3. As per case of the prosecution, on 8.5.2004 the appellant took Benjami Durjan (since deceased) on his bicycle and thereafter the deceased did not return alive and his dead body was recovered after 10-11 days. When the appellant failed to offer any explanation village meeting was convened in the village in which the appellant made extrajudicial confession and thereafter PW-1 Sukhmati, mother of the deceased, lodged missing report (Ex.P-23) and on enquiry of missing report, dead body of the deceased was recovered. Merg was recorded vide Ex.P-21. Dehati Nalishi was recorded vide Ex.P-23. Finally, first information report was registered vide Ex.P-24. After summoning the witnesses vide Ex.P-2, inquest over dead body of the deceased was prepared vide Ex.P-1. Hairs of the deceased was seized vide Ex.P-10. Dead body was sent for autopsy to the Primary Health Centre, Bade-kilepal vide Ex.P-15A where Dr. T.S. Nag (PW-8) conducted autopsy vide Ex.P-15 and found following injuries :- Fracture of temporal bone. Linear thread line fracture on the left parietal bone. Both the lungs were decomposed. Heart was decomposed and frothed blood was present. Eyeball was liquefied. Tongue was absent. Nasal tip absent. Skin of the face is adhered with underlying bone with translucent skin of the chest. Abdomen is dry & hard. Distraction of right hand from finger. Distraction of left hand from wrist joint, distraction of both lower limbs from lower joint. Muscles and soft tissues absent. lacerated dry, hard, translucent skin was seen on the skull on left side of 2.5" x 1", 2" X 0.5". Death was homicidal in nature. Spot map was prepared vide Ex.P-13. Distraction of right hand from finger. Distraction of left hand from wrist joint, distraction of both lower limbs from lower joint. Muscles and soft tissues absent. lacerated dry, hard, translucent skin was seen on the skull on left side of 2.5" x 1", 2" X 0.5". Death was homicidal in nature. Spot map was prepared vide Ex.P-13. During the course of investigation, appellant Kawasi Joga was taken into custody, he made disclosure statement of stick vide Ex.P-4 and the same has been recovered at the instance of the appellant vide Ex.P-5. Statements of witnesses were recorded under Section 161 of Cr.P.C. 4. After completion of investigation, charge sheet against the present appellant and his father Kawasi Hungo was filed before the Judicial Magistrate 1st Class, Jagdalpur, who, in turn, committed the case to the Court of Sessions Judge, Bastar and from where the learned 2nd Additional Sessions Judge, Jagdalpur has received the case on transfer for trial. In order to prove guilt of the accused persons, the prosecution had examined as many as ten witnesses. Statement of the accused persons were recorded under Section 313 of Cr.P.C. in which they denied circumstances appearing against them in the prosecution case and pleaded innocence & false implication. 5. The trial Court, after providing opportunity of hearing to the parties, while acquitting co-accused Kawasi Hungo from all the charges, convicted and sentenced the present appellant as mentioned in paragraph-1 of this judgment. 6. We have heard learned counsel for the parties, perused the impugned judgment and record of the trial Court. 7. Learned counsel for the appellant vehemently argued that conviction is substantially based on the 'last seen theory' and 'extrajudicial confession' made by the appellant to the witnesses. As per evidence of Arjun (PW-2), witness of last seen, & Kumari Gajeshwari (PW-5), a child witness, the present appellant had taken Benjami Durjan with him 10-11 days prior to the date when dead body of the deceased was recovered. He further submits that there is long gap between the last seen theory and recovery of dead body and therefore possibility of presence of third person between the deceased and the appellant cannot be ruled out. He further submits that there is long gap between the last seen theory and recovery of dead body and therefore possibility of presence of third person between the deceased and the appellant cannot be ruled out. He further submits that as regards the evidence of extrajudicial confession made to Smt. Sukhmati (PW-1), Jaisingh Banjam (PW-3), Dhanurjai Shardul (PW-4) & Damru (PW-6) is concerned, as per their evidence when Benjami Durjam did not return then they asked the appellant and he informed that he has left him somewhere. Thereafter a meeting was convened in the village in which the appellant has told that Sardar persons have taken Durjan. Thereafter, a missing report was lodged by Sukhmati (PW-1) and being asked by the police, the present appellant has made extrajudicial confession and therefore the aforesaid confessional statement is not admissible in evidence in terms of Sections 25 & 26 of the Evidence Act. He further submits that except aforesaid evidence, there is no other evidence to connect the present appellant with crime in question. 8. On the other hand, learned counsel for the State has opposed the appeal and submits that conviction is based on the last seen theory and extrajudicial confession made by the appellant to the witnesses. The prosecution has proved its case beyond shadow of doubts and therefore the Court below has rightly convicted and sentenced the appellant. 9. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. 10. In the present case, homicidal death of the deceased has not been substantially disputed. Even otherwise, as per evidence of Dr. T.S. Nag (PW-8) and autopsy report (Ex.P-15), it is established that death of the deceased was homicidal in nature. 11. As regards the complicity of the appellant in crime in question is concerned, conviction is based on the last seen theory and extrajudicial confession made by the appellant. As per evidence of Arjun (PW-2), witness of last seen, & Kumari Gajeshwari (PW-5), a child witness, the appellant has forcefully taken brother of Kumari Gajeshwari (PW-5) and son of Sukhmati (PW-1) with him, the appellant came back to village but the deceased did not return. Being asked the appellant has not offered satisfactorily explanation. After 10-11 days of such missing of Benjami Durjan, his dead body was recovered. Being asked the appellant has not offered satisfactorily explanation. After 10-11 days of such missing of Benjami Durjan, his dead body was recovered. As per evidence of Smt. Sukhmati (PW-1), she has lodged missing report vide Ex.P-23 on 11.5.2004. As per her evidence, firstly she asked the appellant about her son but he has not offered any satisfactory explanation. Thereafter three meetings were convened in the village but the appellant did not appear in first two meetings and appeared only in the third meeting and being asked he has stated that Sardar people have taken the deceased and then she went to the police station along with members of Panchayat and lodged missing report. Thereafter the appellant has admitted before the panchas that he has killed the deceased. As per Para 4 of the evidence of Jaisingh (PW-3), panchayat meeting was convened in the village and being asked the appellant said that Sardar people have taken Durjan and then they brought him to the police station and being asked in the police station, he confessed that he has committed murder of Durjan. Dhanurjay (PW-4) & Damru (PW-6) have corroborated the evidence of Jaisingh (PW-3) but in their cross-examination they have specifically deposed that the police asked the appellant during the course of panchayat meeting and then he has made extrajudicial confession before them. 12. Undisputedly, evidence of above witnesses revealed that the appellant has offered an explanation that Sardar people have taken Durjan and therefore a missing report was lodged and being interrogated by the police he has made extrajudicial confession. Confession of guilt by the accused to the police is not admissible in evidence and it is hit by Sections 25 & 26 of the Evidence Act. 13. As regards the question of last seen theory is concerned, undisputedly dead body of the deceased was recovered after 10-11 days of the alleged last seen theory and thus there was a long gap between last seen theory and recovery of dead body and therefore possibility of presence of third person between the appellant and the deceased cannot be ruled out. Evidence adduced on behalf of the prosecution was only sufficient for creating suspicion that the appellant may have caused injuries or death of the deceased but was not sufficient for drawing a definite inference that the appellant has caused homicidal death amounting to murder of deceased Benjami Durjan. Evidence adduced on behalf of the prosecution was only sufficient for creating suspicion that the appellant may have caused injuries or death of the deceased but was not sufficient for drawing a definite inference that the appellant has caused homicidal death amounting to murder of deceased Benjami Durjan. The prosecution was under an obligation to prove its case beyond shadow of doubt but the nature of evidence available in the present case is not sufficient for drawing a definite inference. Therefore, while convicting and sentencing the appellant under Sections 302 & 201 of the IPC the Court below has not considered the evidentiary value and admissibility of evidence adduced on behalf of the prosecution and thereby committed illegality. 14. Consequently, the appeal is allowed. The impugned judgment of conviction and order of sentence is hereby set aside. Conviction of the appellant under Sections 302 & 201 of the IPC and sentences imposed under those sections are hereby set aside and he is acquitted from the said charges. He be set at liberty forthwith. He be released if not required in any other case. 15. Certified copy as per rules. Appeal Allowed.