Kamlesh and anr. Vs. State of Madhya Pradesh - Court Judgment

Excerpt:
- madhya pradesh uchcha nyayalaya (khand nyaypeeth ko appeal) adhiniyam (14 of 2006)section 2 & m.p. general clauses act, 1957, section 12: [a.k. patnaik, cj, s.s. jha & a.m. sapre, jj] appeal to division bench against judgment of single judge - application for restoration/revival of letters patent appeal under clause 10 - held, the legal effect of the 1981 adhiniyam was that with effect from 1st july 1981, all appeals under clause 10 of the letters patent were abolished except appeals which were pending before high court on date immediately preceding date of commencement of 1981 adhiniyam on 1st july 1981. it will be clear from sub-section 92) of section 1 of the 2005 adhiniyam that the 2005 adhiniyam was to come into force with retrospective effect from first day of july, 1981 i.e., with effect from the date from which the appeals under clause 10 of the letters patent were abolished by the 1981 adhiniyam. it will be further clear from section 2 of the 2005 adhiniyam that under the 2005 adhiniyam, appeal was provided for only from a judgment and order passed by a single judge in exercise of original jurisdiction under article 226 of the constitution of india to a division bench comprising of two judges of the high court and no appeal was provided for from the judgment and order passed by a single judge of high court in exercise of any other jurisdiction of the high court. it will also be clear from section 4 of the 2005 adhiniyam that sub-section (1) of section 4 repealed the 1981 adhiniyam. therefore by the repeal of the 1981 adhiniyam by section 4(1) of 2005 adhiniyam, appeals under clause 10 of the letters patent against judgment and decree passed by the single judge in exercise of its jurisdiction under section 96 of the code of civil procedure would not be revived as 2005 adhiniyam does not provide for any such revival. a reading of section 12 of the m.p. general clauses act, 1957, would show that the legislature must expressly state that the repealed act is either wholly or partially revived. where an act is passed repealing a repealing enactment, it shall not be considered as reviving any enactment previously repealed unless words are added reviving that enactment. in the absence of any express or implicit provision in the 2005 adhiniyam providing for appeal from a judgment, decree or order passed by single judge under section 96 of c.p.c., to a division bench, by virtue of the repeal of the 1981 adhiniyam, appeal under clause 10 of the letters patent from a judgment and decree passed by single judge in exercise of appellate jurisdiction under section 96 of c.p.c., are not revived. - 10. the contention of learned counsel for the appellants is that there is no direct evidence against the appellants and the prosecution has based its case solely on the basis of circumstantial evidence, but the prosecution has utterly failed to collect all the relevant piece of evidence so as to form a complete chain unerringly pointing out the guilt towards the appellants, and therefore, the learned trial court has erred in convicting them. on going through the first line of the cross-examination, the things would become as clear like a noon day. 16. at this juncture, we would also like to scan the testimony of hotam singh (p.a.k. shrivastava, j.1. the judgment passed in this appeal shall also govern the disposal of connected criminal appeal no. 28/01 filed on behalf of mahila shakuntala. indeed, mahila shakuntala is also appellant no. 2 in this appeal.feeling aggrieved by the judgment of conviction and order of sentence dated 10-11-2000 passed by the learned sessions judge, morena in sessions trial no. 384/99 convicting the appellant no. 1 - kamlesh under section 302 of ipc (on two counts) and appellant no. 2 - shakuntala under section 201 of ipc and thereby sentencing them to suffer life imprisonment and three years' ri and fine of rs. 1,000/- respectively, in default of fine, further ri three months, the appellants have knocked the doors of this court by preferring this appeal under section 374(2) of code of criminal procedure, 1973.2. the admitted facts are that appellant no. 2 shakuntala is the daughter of ramesh and ganeshi bai (hereinafter referred to as 'the deceased') and appellant no. 1 kamlesh is the husband of shakuntala. on the date of incident, i.e., on 4-10-1999 these two appellants were inside the house of the deceased persons.3. in brief, the case of prosecution is that appellant no. 1 kamlesh was insisting the deceased persons to accompany his wife appellant no. 2 shakuntala, who was residing with them, but the deceased persons were not sending their daughter along with her husband (appellant no. 1 kamlesh) and for this reason some altercation was taking place between appellant no. 1 kamlesh and the deceased persons. it is said that in the late night at 1.30 of 4-10-1999 appellant no. 2 shakuntala went to the house of hotam, who was residing in front of the house of the deceased persons and told that something had happened to her mother. in the meantime, the neighbours also wakeup and all of them went to the house of deceased persons. while these persons were entering inside the said house, the appellant no. 1 kamlesh came out from the house and on being asked by the neighbours from him that how the incident had occurred, it was told by him that he would have been killed by the miscreants and with great efforts he has been saved. further he stated that two miscreants after killing the deceased persons had ran away. on being asked from appellant no. 1 kamlesh by the neighbours of the deceased persons as to whether he identified the miscreants he answered in negative. the neighbours found that the deceased persons were lying dead. after seeing the dead body of the deceased persons, ramvilas, munshi, bhoora and prem singh went to patel ke pura, where they informed about the incident to up sarpanch jagdish yadav as a result of which he (jagdish) telephonically informed the police control room at morena.4. it is further case of the prosecution that when the neighbours entered inside the house of the deceased persons at that juncture, the conduct and behaviour of the appellant kamlesh was unusual and as he was going and coming back repeatedly inside the house and was going again and again to clean his hands and legs and was trying to run away from the village. the inhabitants of the village were having doubt on the appellant as a result of which they did not allow him leave the village till the arrival of the police. after the arrival of the inspector of police station noorabad and on being inquired from appellant-kamlesh, he admitted his guilt and told that because his father-in-law and mother-in-law (deceased persons) were not permitting his wife shakuntala to go along with him, therefore, he had killed the deceased persons by 'axe'. the appellant no. 2 shakuntala in order to save the skin of her husband appellant no. 1 kamlesh, gave false explanation that two unknown persons have killed her parents.5. the investigating agency investigated the matter. after the investigation was over, a charge-sheet was submitted in the competent court which on its turn committed the case to the court of sessions and from where the appellants were tried.6. the learned trial judge on the basis of the allegations made in the charge-sheet framed charges punishable under section 302 of ipc against the appellant no. 1 kamlesh while appellant no. 2 shakuntala was charged under section 201 of ipc. needless to emphasis the appellants abjured their guilt and pleaded complete innocence and requested for the trial.7. in order to bring home the charges, the prosecution has examined as many as 11 witnesses and placed exh. p-1 to exh. p-9 the documents on record. the defence of the appellants is of false implication and the same defence they set forth in their statements recorded under section 313 of cr.pc. however, they did not choose to examine any witness in support of their defence.8. the learned trial court on the basis of documents and evidence placed on record, came to hold that charge under section 302 of ipc has been found proved against the appellant kamlesh while appellant no. 2 shakuntala has committed offence under section 201 of ipc. eventually, the learned trial judge convicted them and passed the sentence as mentioned herein above.9. in this manner, the present appeal has been filed by the appellants assailing the judgment of conviction and order of sentence passed by the learned trial court.10. the contention of learned counsel for the appellants is that there is no direct evidence against the appellants and the prosecution has based its case solely on the basis of circumstantial evidence, but the prosecution has utterly failed to collect all the relevant piece of evidence so as to form a complete chain unerringly pointing out the guilt towards the appellants, and therefore, the learned trial court has erred in convicting them.11. it has also been put forth by learned counsel for the appellants that the learned trial court against the law has placed reliance upon the extra-judicial confession of appellant no. 1 kamlesh. according to learned counsel, the said confession is not at all admissible in evidence since it is hit by section 25 of the evidence act. it has also been put forth by learned counsel that the motive part has also not been found to be proved. apart from this, it has been contended by learned counsel that the axe which was seized at the instance of appellant and which is said to be used in the commission of the offence, the human blood stains were not found on it, as per the report of the chemical examination, and therefore, this is an additional reason in order to hold that the appellants are innocent.12. shri v.d. sharma, learned counsel for the appellants has placed heavy reliance on the decision of supreme court mohtesham mohd. ismail v. spl. director, enforcement directorate and anr. (2007) 3 scc 531, and has submitted that if the extra-judicial confession is made before the police officer, the same is not admissible.13. per contra, shri m.p.s. bhadoriya, learned public prosecutor argued in support of the impugned judgment.14. having heard learned counsel for the parties, we are of the considered view that this appeal had connected criminal appeal no. 28/01 deserves to be allowed.15. on going through the testimony of prem singh (p.w. 4) and hotam singh (p.w. 6), we find that the extra-judicial confession was made by appellants in presence of the police inspector. in this context, para 1 of the examination-in-chief of prem singh (p.w. 4), may be seen, wherein this witness has categorically stated that in presence of this witness appellant kamlesh told police inspector, that he has chopped the deceased persons. it would be relevant to mention here that this witness was not declared hostile and, therefore, according to us, whatever the evidence this witness has given, the prosecution is bound by it. in this context, we may profitably place reliance on the decision of supreme court raja ram v. state of rajasthan (2005) scc (cri.) 1050 para 9. hence, the prosecution is bound by the evidence of this witness that in presence of police, the appellant kamlesh gave extra-judicial confession. needless to say such a confession has no sanctity in the eye of law. on going through the first line of the cross-examination, the things would become as clear like a noon day. specifically, this witness is saying that police persons gave threat to appellant - kamlesh and he was also beaten and if that is the position, according to us, the extra-judicial confession is not admissible in evidence and is hit by section 25 of the evidence act.16. at this juncture, we would also like to scan the testimony of hotam singh (p.w. 6), who has categorically admitted in para 3 of his examination-in-chief that after the arrival of the police in the village, on being inquired from appellant - kamlesh, he admitted that he has killed the deceased persons. thus, according to us, the prosecution is also bound by the evidence of hotam singh because he too was not declared hostile. according to us, the so called extra-judicial confession is not at all admissible in evidence in view of the section 25 of the evidence act. according to us, the learned trial court has erred in placing reliance on extra-judicial confession made by appellant-kamlesh to the police, though in the presence of prem singh (p.w. 4) and hotam singh (p.w. 6).17. so far as the evidence of bhoora (p.w. 9) is concerned, he is a hostile witness and the statement made by him is not at all helpful to the prosecution. however, on going through para 4 of his cross-examination, we find that on account of the fear of the police appellant-kamlesh confessed his alleged guilt. according to us, such type of confession would also not come within the scope of extra-judicial confession and would be hit by section 25 of the evidence act.18. in the present case, the motive has also not been proved by the prosecution. although, the motive part may not have any significance when the case rests upon direct evidence, but it is having some importance if the case is based on circumstantial evidence in this context we may profitably place reliance on the decision of the supreme court in budha satya venkata s. rao and ors. v. state of a.p. : 1994 supp. (3) scc 639. except the above circumstances, there is no other evidence on record in order to upheld the conviction of appellants. according to us, learned trial court has erred in convicting the appellants kamlesh under section 302 and shakuntala under section 201 of ipc.19. accordingly this appeal is allowed. judgment of conviction and order of sentence passed by the learned trial court is hereby set aside and appellant no. 1 kamlesh is acquitted from the charge under section 302 while appellant no. 2 shakuntala is acquitted from the charge under section 201 of ipc. appellant-kamlesh is in jail, he be set at liberty if not required in any other case. appellant no. 2 shakuntala is on bail, her bail bonds shall stand discharged forthwith. the fine amount, if any, deposited by the appellants, be refunded to them.