Rupdhar Khadiya @ Butu vs State Of Chhattisgarh

Sanjay K. Agrawal, J

Since common question of fact and law is involved in all both of these appeals, therefore, they have been clubbed together, heard together and are being decided by this common judgment.

Criminal appeal No. 816/2014 has been preferred by appellant/accused Rupdhar Khadiya @ Butu (A-1) and criminal appeal No. 594/2014 has been preferred by appellant/accused Rajantha Rathia @ Suwar (A-2) against the impugned judgment dated 24/06/2014 passed by learned Additional Sessions Judge (Fast Track Court), Raigarh whereby they have been convicted and sentenced as under :-

Rupdhar Khadiya @ Butu (A-1) :-

Conviction

Sentence

U/s 302 of IPC

Life  imprisonment  with  fine  of  Rs. 500/-  and  in  default  of  payment  of fine, additional R.I. for 6 months

U/s 307 of IPC

R.I. for 5 years with fine of Rs. 500/- and  in  default  of  payment  of  fine, additional R.I. for 3 months.

Rajantha Rathia @ Suwar (A-2) :-

Conviction

Sentence

U/s  302  r/w  120B  of IPC

Life  imprisonment  with  fine  of  Rs. 500/-  and  in  default  of  payment  of fine additional R.I. for 6 months.

Prosecution Case :-

Case of the prosecution, in a nutshell, is that the appellants herein hatched a conspiracy of causing death of Kanthiram, Nilo and Momraj and in furtherance of their conspiracy, on 11/06/2012 in between 09:30 PM to 11:30 PM, appellant Rupdhar Khadiya @ Butu (A-1) assaulted Kanthiram with wooden stick and Neelmadhav and Momraj (P.W.-1) with tangiya (axe) due to which Kanthiram and Neelmadhav suffered grievous injuries and died.

Brief facts of the case which led to filing of the charge-sheet against the appellants herein are as follows :-

4.1. Complainant Momraj (P.W.-1) resided at Village Raikera and was a farmer and his agricultural land was situated at pahadteer in the village wherein his father Kanthiram lived and looked after the crops. Appellant Rupdhar Khadiya @ Butu (A-1) worked for him and he used to stay with his father Kanthiram and also looked after the crops. One week prior to the incident, appellant Rupdhar Khadiya @ Butu (A-1) was staying at complainant's house and was working from there and he had been drinking liqour continuously for 3-4 days.

4.2. On 11/06/2012 at about 09:30 PM, complainant Momraj, his brother Neelmadhav and the appellant (A-1) were sitting together and taking their meals and that time too, the appellant was drunk so Neelmadhav warned him not to drink from tomorrow and asked him to go and sleep with his father in the field. Thereafter, appellant (A-1) left and complainant Momraj (P.W.-1) and his wife Sulochana (P.W.-3) went to sleep inside the house and Neelmadhav slept in the courtyard. At about 11:30 PM, suddenly complainant Momraj (P.W.-1) felt that he had been hit with something on the left side of his chest and when he woke up he saw that appellant Rupdhar Khadiya @ Butu (A-1) was standing there and then he ran away. Complainant picked up the weapon of offence and saw that it was tangiya used by his father in the field. When complainant Momraj (P.W.-1) and his wife Sulochana (P.W.-3) went to the courtyard they saw that his brother Neelmadhav was lying dead on the cot and there was a lacerated wound on his neck. Complainant (P.W.-3) shouted and his neighbours Maniram Nagesia (P.W.-6), Vijay Rathia and Ashok Rathia (P.W.-4) came therein and the complainant after telling them about the incident sent Vijay Rathia and Ashok Rathia (P.W.-4) towards the field to look for his father Kanthiram and he was later informed by them that his father Kanthiram was also lying dead in the field.

4.3. The said incident was reported by the complainant Momraj (P.W.-1) at Police Station Gharghoda wherein first information report was lodged vide Ex. P/1 and merg intimation was registered vide Ex. P/2. Inquest was conducted vide Ex. P/8 and the dead bodies of Kanthiram and Neelmadhav were subjected to postmortem which was conducted by Dr. P.L. Bodalkar (P.W.-9) and as per the postmortem report (Ex. P/16 & P/17), cause of death of Neelmadhav is said to be hemorrhage shock as a result of external bleeding and separation of trachea oesophagus and jugular veins arteries and nature of death is said to be homicidal and the cause of death of Kanthiram is said to be haemorrhage shock as a result of external bleeding and rupture of frontal and forehead bone of skull and the nature of death is said to be homicidal. Medical examination of complainant Momraj was conducted by Dr. Vijay Kumar Lakda (P.W.-8) and as per the MLC report (Ex. P/15), the injuries suffered by him were said to be simple in nature.

4.4. Memorandum statement of appellant Rupdhar Khadiya @ Butu (A-1) was recorded vide Ex. P/20 and pursuant thereof, voter id card belonging to the deceased Kanthiram was seized from him vide Ex. P/21. From one spot [house of complainant Momraj (P.W.-1)], blood-stained tangiya, blood-stained handkerchief belonging to the deceased Neelmadhav, blood-stained lungi belonging to the appellant (A-1), plain soil as well as blood-stained soil were seized vide Ex. P/7 and from the other spot [field wherein deceased Kanthiram lived along with the appellant (A-1)], recovery of blood stained wooden stick, blood-stained gamcha belonging to the deceased Kanthiram, plain soil and blood-stained soil was made vide Ex. P/12. The seized articles were though sent for forensic examination, but no FSL report has been brought on record.

4.5. After due investigation, the appellants were charge-sheeted which was committed to the Court of Sessions Judge for trial in accordance with law wherein the appellants abjured their guilt and entered into defence.

In order to bring home the offence, prosecution examined as many as 14 witnesses and brought on record 37 documents. Statements of the appellants were taken under Section 313 of CrPC wherein they denied guilt, however, they examined none in their defence and brought on record only 2 documents.

Learned trial Court, after appreciation of oral and documentary evidence on record, proceeded to convict appellant Rupdhar Khadiya @ Butu (A-1) for offence punishable under Sections 302 and 307 of IPC and further proceeded to convict appellant Rajanta Rathia @ Suwar (A-2) for offence punishable under Section 302 r/w 120B of IPC and sentenced them as aforesaid.

Submissions of the Parties :-

Mr. Manoj Kumar Jaiswal, learned counsel for the appellant Rupdhar Khadiya @ Butu (A-1) in Criminal Appeal No. 816/2014, would submit that prosecution has miserably failed to bring home the offence against the appellant (A-1) as except for the statements of the Momraj Rathia (P.W.-1) and Sulochana (P.W.-3), who are interested witnesses, only memorandum statement (Ex. P/20) has been brought on record although it has also not been proved in accordance with law and apart from that, there is no other evidence available on record to hold that he is the author of the crime in question, therefore, he is entitled for acquittal on the ground of benefit of doubt.

Mr. Arvind Shrivastava, learned counsel for appellant Rajanta Rathia @ Suwar (A-2) in Criminal Appeal No. 594/2014, would submit that there is no memorandum statement of the appellant (A-2) available on record and there is no overtact on his part and there is no direct evidence against him. Only on the evidence of memorandum statement of co-accused Rupdhar Khadiya @ Butu (A-1) under Section 27 of the Evidence Act, appellant (A-2) has been implicated by virtue of Section 30 of the Evidence Act, as such, his conviction cannot be sustained in light of the decision rendered by the Supreme Court in the matter of Haricharan Kurmi v. State of Bihar AIR 1964 SC 1184. He would further submit that there is no evidence of conspiracy available on record and he has been convicted on surmises and conjectures, as such, the instant appeal be allowed and he be acquitted.

Mr. H.S. Ahluwalia, learned Deputy Advocate General on behalf of the respondent/State, would firstly submit that so far as appellant Rupdhar Khadiya @ Butu (A-1) is concerned, pursuant to his memorandum statement (Ex. P/20), seizure of voter ID card belonging to the deceased Kanthiram has been made vide Ex. P/21. Moreover, there is direct evidence available against him in the shape of statements of injured witness Momraj (P.W.-1) and his wife Sulochana (P.W.-3), who have supported the case of the prosecution. Futhermore, the statements of Momraj (P.W.-1), Sulochana (P.W.-3), Ashok Rathia (P.W.-4) and Sanat Ram Rathia (P.W.-5) are reliable by virtue of Section 6 of the Evidence Act, therefore, he has rightly been convicted by the trial Court for the aforesaid offences. Secondly, he would submit that so far as appellant Rajanta Rathia @ Suwar (A-2) is concerned, there is sufficient evidence available on record against the appellant (A-2) that he hatched a conspiracy with appellant Rupdhar Khadiya @ Butu (A-1) of causing death of Kanthiram and Neelmadhav and thus, he has also been rightly convicted by the trial Court. Therefore, the instant appeals are liable to be dismissed.

We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records with utmost circumspection.

Nature of death :-

Learned trial Court has clearly recorded the finding that the death of deceased Kanthiram as well as Neelmadhav was homicidal in nature relying upon the expert medical opinion of Dr. P.L. Bodalkar (PW-9) who has proved the postmortem reports (Ex. P/16 & P/17) in which cause of death is said to be hemorrhage as a result of external bleeding and rupture of frontal and forehead bone of skull with regard to deceased Kanthiram and so far as the death of deceased Neelmadhav is concerned, cause of death is said to be Hemorrhage as a result of external bleeding and separation of trachea oesaphagus and jugular veins and arteries. Considering the statements made by Dr. P. L. Bodalkar (P.W.-9) as well as considering the postmortem reports (Ex. P/16 & P/17), we are of the considered opinion that the trial Court has rightly held the death of deceased Kanthiram and Neelmadhav to be homicidal in nature. We hereby affirm the said finding, particularly when it has not been challenged by learned counsel for the appellants.

Now, we shall consider the case of each of the appellants one-by-one.

Case of appellant Rupdhar Khadiya @ Butu (A-1) :-

Learned trial Court has recorded the conviction of the appellant Rupdhar Khadiya @ Butu (A-1) on the basis of direct evidence as well as circumstantial evidence available on record. So far as direct evidence is concerned, statements of injured witness Momraj (P.W.-1) and his wife Sulochana (P.W.-3), who are cited as eye-witnesses to the incident, have been relied upon by the trial Court and the statements of Babulal Rathia (P.W.-2), Ashok Rathia (P.W.-4) and Sanat Ram Rathia (P.W.-5) have been relied upon by virtue of Section 6 of the Evidence Act.

At this stage, it would be appropriate to notice Section 6 of the Evidence Act, which states as under :-

“6. Relevancy of facts forming part of same transaction. - Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.

Illustrations

(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.”

The aforesaid provision deals with the relevancy of facts forming part of the same transaction. Facts, though not in issue, if they are so connected with a fact in issue as to form part of the same transaction, are relevant, whether those facts occurred at the same time and place or at different times and places. This section admits those facts the admissibility of which comes under the technical expression res gestae (i.e. the things done, including words spoken in the course of a transaction), but such facts must “form part of the same transaction”.

(See: Sardul Singh v. State AIR 1957 SC 747)

Section 6 of the Evidence Act is an exception to the rules of evidence that hearsay evidence is not admissible. The test for applying the rule of res gestae is that the statement should be spontaneous and should form the part of the same transaction ruling out any possibility of concoction and it is usually known as rule of res gestae.

In the matter of Javed Alam v. State of Chhattisgarh and another (2009) 6 SCC 450 their Lordships of the Supreme Court have held the rule of res gestae as under :-

“19. Section 6 of the Evidence Act is an exception to the rule of evidence that hearsay evidence is not admissible. The test for applying the rule of res gestae is that the statement should be spontaneous and should form part of the same transaction ruling out any possibility of concoction. In Gentele Vijayvardhan Rao v. State of A.P. (1996) 6 SCC 241 it was held in para 15 as follows : (SCC pp. 246-47)

“Section 6 of the Evidence Act and some of the succeeding Sections embody the rule of admission of evidence relating to what is commonly known as res gestae. They are in the nature of exception to “hearsay” rule. Section 6 permits proof of collateral statements which are so connected with the facts in issue as to form part of the same transaction. Whether the statement made by a witness was a part of the same transaction or not is to be considered in the light of the circumstances of each case. The principle is that it should be so intimately connected with the fact in issue as to be a spontaneous utterance inspired by the excitement of the occasion or a spontaneous reaction thereof, there being no opportunity for deliberately fabricating the statement. In other words, the statement which is a part of res gestae does not narrate a past event, but it is the event itself speaking through a person thus excluding the possibility of any design behind it.””

Reverting to the facts of the present case in light of the principle of laid down in Javed Alam (supra) and the provision contained under Section 6 of the Evidence Act which the trial Court has also applied and has clearly held that Momraj (P.W.-1), who is an injured eye-witness, has clearly stated in his deposition that on the night of the incident, he was trying to sleep but suddenly someone assaulted him and he saw that appellant Rupdhar Khadiya @ Butu (A-1) was standing on the foot of his bed holding a tangiya and when he caught hold of his clothes, the appellant (A-1) anyhow escaped and thereafter, Momraj (P.W.-1) found the dead body of his brother Neelmadhav lying in the courtyard. The said statement of Momraj (P.W.-1) has also been supported by his wife Sulochana (P.W.-3). Similarly, Babulal Rathia (P.W.-2) also reached on the spot and Momraj (P.W.-1) informed him about the incident and told him that appellant (A-1) assaulted him with tangiya and he has also committed murder of Neelmadhav. Immediately thereafter, Ashok Rathia (P.W.-4) and Sanat Ram Rathia (P.W.-5) also reached on the spot and as asked by Momraj (P.W.-1), they went to look for Kanthiram and came back and informed Momraj (P.W.-1) that Kanthiram has also been murdered. Thus, the trial Court has considered the evidence of Momraj (P.W.-1), Babulal Rathia (P.W.-2), Sulochana (P.W.-3), Ashok Rathia (P.W.-4) and Sanat Ram Rathia (P.W.-5) applying the provision of Section 6 of the Evidence Act, which in our considered opinion, is absolutely in accordance with law.

Now with regard to the circumstantial evidence, memorandum statement of the appellant (A-1) is available on record pursuant to which seizure of voter ID card belonging to deceased Kanthiram has been seized vide Ex. P/21 which has been proved by Ram Kumar Rathia (P.W.-11), who has though turned hostile but has supported the memorandum and seizure of apellant (A-1). Similarly, the other witness Manoj Kumar Bahera (P.W.-12) has also supported the case of the prosecution. Moreover, from the spot, recovery of blood-stained tangiya has been made vide Ex. P/7 and though FSL report has not been brought on record to prove that it was stained with human blood, but considering that Momraj (P.W.-1) and Sulochana (P.W.-3) have seen the appellant (A-1) standing on the spot holding a tangiya and Babulal Rathia (P.W.-2), Ashok Rathia (P.W.-4) and Sanat Ram Rathia (P.W.-5) reached immediately on the spot, their evidence is admissible under Section 6 of the Evidence Act. Thus, we are of the considered opinion that the trial Court is justified in convicting appellant Rupdhar Khadiya @ Butu (A-1) for offences punishable under Sections 307 and 302 of IPC as prosecution has been able to prove direct evidence as well as circumstantial evidence against him.

Case of appellant Rajanta Rathia @ Suwar (A-2) :-

The trial Court has clearly recorded the finding that no memorandum statement of appellant (A-2) has been recoded and no seizure has been made from him, however, it has been held that he was involved in hatching conspiracy to commit the crime along with appellant Rupdhar Khadiya @ Butu (A-1) and though there is some negligence and lapse on the part of the police to make proper investigation, but from the evidence of memorandum statement of appellant Rupdhar Khadiya @ Butu (A-1) wherein he has named appellant Rajanta Rathia @ Suwar (A-2) to be involved in the conspiracy of commission of the crime in question, the trial Court has proceeded to convict him for offence punishable under Section 302 of IPC with the aid of Section 30 of the Evidence Act even though motive on th part of appellant (A-2) has also not been established by the prosecution.

At this stage, it would be relevant to notice the provision contained under Section 30 of the Evidence Act, which provides as under :-

“30. Consideration of proved confession affecting person making it and others jointly under trial for same offence – When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.

Explanation - “Offence”, as used in this section, includes the abetment of, or attempt to commit, the offence.”

A careful perusal of the aforesaid provision would show that the object of this provision is that where an accused person unreservedly confesses his own guilt, and at the same time implicates another person who is jointly tried with him for the same offence, his confession may be taken into consideration against such other person as well as against himself, because the admission of his own guilt operates as a sort of sanction, which, to some extent, takes the place of the sanction of an oath and so affords some guarantee that the whole statement is a true one. When a person admits his guilt to the fullest extent, and exposes himself to the pains and penalties provided therefore, there is a guarantee for his truth. The Court could use the confession of one accused against another accused only if the following two conditions are fulfilled: -

The co-accused should have been charged in the same case along with the confessor.

He should have been tried together with the confessor in the same trial.

Section 30 of the Evidence Act came up for consideration before their Lordships of the Supreme Court in Haricharan Kurmi (supra) in which their Lordships have considered the probative value of confession of co-accused and its use how to be made in joint trial. In Haricharan Kurmi (supra), their Lordships clearly held that though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act and observed as under: -

“11. … The basis on which this provision is founded is that if a person makes a confession implicating himself, that may suggest that the maker of the confession is speaking the truth. Normally, if a statement made by an accused person is found to be voluntary and it amounts to a confession in the sense that it implicates the maker, it is not likely that the maker would implicate himself untruly, and so, S. 30 provides that such a confession may be taken into consideration even against a co-accused who is being tried along with the maker of the confession. There is no doubt that a confession made voluntarily by an accused person can be used against the maker of the confession, though as a matter of prudence criminal courts generally require some corroboration to the said confession particularly if it has been retracted. With that aspect of the problem, however, we are not concerned in the present appeals. When S. 30 provides that the confession of a co-accused may be taken into consideration, what exactly is the scope and effect of such taking into consideration is precisely the problem which has been raised in the present appeals. It is clear that the confession mentioned in S. 30 is not evidence under S. 3 of the Act. ...

… It would be noticed that as a result of the provisions contained in S. 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the Court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of S. 30, the fact remains that it is not evidence as defined by S. 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained is S. 30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh, 1952 SCR 526: (AIR 1952 SC 159) where the decision of the Privy Council in Bhuboni Sahu's case, 76 Ind App 147 (AIR 1949 PC 257) has been cited with approval.

… As we have already indicated, it has been a recognised principle of the administration of criminal law in this country for over half a century that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible, from the said evidence. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt. That is precisely what has happened in these appeals.”

The principle of law laid down in Haricharan Kurmi (supra) has been followed recently by the Supreme Court in Dipakbhai Jagdishchandra Patel v. State of Gujarat and another AIR 2019 SC 3363. It has also been held by their Lordships that confession of an accused person is not evidence, it cannot be made tile foundation of a conviction and can only be used in support of other evidence (see Kashmira Singh v. State of Madhya Pradesh AIR 1952 SC 159, Nathu v. State of Uttar Pradesh AIR 1956 SC 56

and Govt. of NCT of Delhi v. Jaspal Singh (2003) 10 SCC 586.)

In the matter of Surinder Kumar Khanna v. Intelligence Officer, Directorate of Revenue Intelligence (2018) 8 SCC 271, their Lordships of the Supreme Court have summarised the law relating to scope of Section 30 of the Evidence Act and observed as under: -

“11. The law laid down in Kashmira Singh (supra) was approved by a Constitution Bench of this Court in Haricharan Kurmi v. State of Bihar (supra) wherein it was observed: (Haricharan case (supra), AIR p.1188, para 12)

“12.As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbutty ILR (1911) 38 Cal 559 at p. 588 a confession can only be used to “lend assurance to other evidence against a co-accused”. In Periaswami Moopan, In re 1930 SCC OnLine Mad 86 : ILR (1931) 54 Mad 75 at p. 77 Reilly, J., observed that the provision of Section 30 goes not further than this: (SCC OnLine Mad)

‘… where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence’.

In Bhuboni Sahu v. R. 1949 SCC OnLine PC 12 : (1948-49) 76 IA 147 at p. 155 the Privy Council has expressed the same view. Sir John Beaumont who spoke for the Board, observed that: (SCC OnLine PC)

‘… a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of “evidence” contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence’.

It would be noticed that as a result of the provisions contained in Section 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in Section

The same view has been expressed by this Court in Kashmira Singh v. State of M.P. (supra) where the decision of the Privy Council in Bhuboni Sahu case (supra) has been cited with approval.”

The law so laid down has always been followed by this Court except in cases where there is a specific provision in law making such confession of a co-accused admissible against another accused. [For example: State v. Nalini, (1999) 5 SCC 253, paras 424 and 704 : 1999 SCC (Cri)]

Reverting to the facts of the present case in light of the aforesaid legal principle and in view of the finding recorded by the trial Court, appellant Rajanta Rathia @ Suwar (A-2) has been convicted only on the basis of memorandum statement of co-accused Rupdhar Khadiya @ Butu (A-1) recorded vide Ex. P/20 and there is no other evidence brought on record to hold that appellant (A-2) was involved in the conspiracy and hence, he is guilty of the offence. Thus, in light of the decision rendered by the Supreme Court in Haricharan Kurmi (supra), we are of the considered opinion that the trial Court has erred in convicting the appellant Rajanta Rathia @ Suwar (A-2) for offence punishable under Section 302 of IPC with the aid of Section 30 of the Evidence Act. We hereby acquit appellant Rajanta Rathia @ Suwar (A-2) from the charge levelled against him.

Conclusion :-

In view of the aforesaid legal analysis, conviction of appellant Rupdhar Khadiya @ Butu (A-1) for offence punishable under Sections 307 and 302 of IPC and the sentence awarded to him by the trial Court is hereby maintained and he shall serve the remaining sentence as awarded to him by the trial Court. However, conviction of the appellant Rajanta Rathia @ Suwar (A-2) for offence punishable under Section 302 of IPC and the sentence awarded to him by the trial Court is hereby set aside. Since he is already on bail, he need not surrender, however, his bail bonds shall remain in force for a period of six months in view of the provision contained under Section 437A of CrPC.

Accordingly, Criminal Appeal No. 816/2014 is dismissed whereas Criminal Appeal No. 594/2014 is allowed.

Let a certified copy of this order along with the original record be transmitted to trial Court concerned for necessary information and action, if any.