- (1.) Heard the parties.
(2.) This criminal appeal has been directed against the judgment of conviction and sentence dated 07.02.2004 and 09.02.2004 respectively passed by the Additional Sessions Judge, F.T.C. No. I, Gumla in Sessions Trial No. 170/2003 in connection with G.R. Case No. 70/2003 arising out of Palkot P.S. Case No. 12/2003 whereby the appellant has been held guilty for the offence punishable under Sec. 302, 201 of the Indian Penal Code and sentenced to undergo R.I. for life under Sec. 302 of the IPC and R.I. for five years under Sec. 201 IPC and both the sentences were directed to run concurrently.
(3.) The facts emerging from the written report lodged by Pushpa Devi (P.W. -11), wife of Kameshwar Choudhary is that on 27.01.2003 at about 10:00 a.m., Kameshwar Choudhary left home for going to village - Murkunda but did not return home. The informant thought that her husband might have stayed in that village but on the next day too, when Kameshwar Choudhary did not return, the informant made a search for her husband but could not succeed. On 01.02.2003, she could learn that her husband Kameshwar Choudhary with Jattu Pahan (appellant) had gone somewhere on 27.01.2003 and, therefore, she went to the house of Jattu Pahan to know where about of her husband. She found a bicycle belonging to deceased parked in the house of Jattu Pahan but appellant was not available. The informant suspecting murder of her husband at the hands of Jattu Pahan, lodged written report on 01.02.2003. On the basis of written report, Gumla (Palkot) P.S. Case No. 12/2003 under Sec. 302, 201 of the Indian Penal Code against appellant Jattu Pahan was registered. In course of investigation, Jattu Pahan was apprehended and he confessed his guilt. On the basis of confession made by appellant, dead body of Kameshwar Choudhary buried near Marda river bank was recovered. The slipper belonging to the deceased was also recovered. On interrogation wife of the appellant disclosed that her husband had admitted that he had killed Kameshwar Choudhary and took out Rs. 500/ - from his pocket and out of said sum of Rs. 500/ -, the appellant had given Rs. 200/ - to her. Out of said Rs. 200/ - she had spent Rs. 50/ - and balance Rs. 150/ - was given to the Police. Confessional statement of the appellant was first recorded by Joseph Tete, Secretary of Gram Sabha of village - Marda and that has been proved and marked Ext. -5. The investigating officer has also recorded confessional statement of appellant (Ext. -9). After concluding evidence, chargesheet was submitted and accordingly cognizance was taken against the appellant under Sec. 302 and 201 of the Indian Penal Code and case was committed to the Court of Sessions and registered as S.T. No. 170/2003. Charges under Sec. 302 and 201 of the Indian S.P. was present over there. Had it been so, it is not a case of confession leading to discovery and the statement of appellant so recorded in the shape of his confession is not admissible even under Sec. 27 of the Evidence Act. Binod Choudhary (P.W. -2) is the brother of deceased and in order to corroborate the story cooked up by prosecution, he has stated that he had seen the appellant and deceased Kameshwar Choudhary going towards Mela (fair). Needless to mention, this fact was not supported by any of the witnesses, even in the so called confessional statement (Exts. -5 and 9) this fact does not appear. It is submitted that identity of the deceased is also doubtful. No family members of Kameshwar Choudhary has signed the inquest report or the postmortem report to prove that he or she identify the dead body of Kameshwar Choudhary. Admitted case of the prosecution is that Kameshwar Choudhary disappeared from 27.01.2003 and dead body was exhumed on 02.02.2003 from Marda river bank and according to opinion of doctor, death had occurred 5 -6 clays prior to the date of postmortem examination. In such a situation, dead body was not identifiable. The learned Trial Judge has erred in holding the appellant guilty for the offence alleged.;