/;:'? ^iy ^." HIGH COURT OF CHHATTISGARH, BILASPUR SINGLEBENCH: HON'BLESHRI R^L^JHANWAR^J. Criminal Appeal No. 945/1992 APPELLANT Aktu Versus RESPONDENT StateofM.P.(nowC.G.) JUDGMENT PQST QN _& iiOVEMBER. 2009 Sd/" R.L. Jhanwar Judge •\ i \ »«1 HIGH COURT OF CHHATTISGARHAT BILASPUR SB: HON'BLE SHRI RAJESHWAR LAL JHANWAR, J. APPELLANT RESPONDENT Criminal Appeal No. 945/1992 Aktu, son of Shri Bahur Singh Sahu, aged about 21 years, R/o Village Kumhi, Police Station : Khairagarh, District : Rajnandgaon (MP) (now C.G.) Versus State of Madhya Pradesh (now C.G.) Apneal U/s 374(2) ofthe Cr.P.C. Appearance: Shri H. S. Ahluwalia, counsel for the appellant. Shri Pradeep Singh, Panel Lawyer for the State. J U D GM EN T (Deliveredon p.11.2009) 1. This criminal appeal is directed against the judgment of conviction and order of sentence dated 11.8.1992 passed in S.T. No.80/91, whereby the learned Additional Sessions Judge, Khairagarh has convicted the appellant under Section 304 of the IPC and sentenced him to undergo R.I. for 10 years for causing death of Mathura Bai. 2. Prosecution story in brief is that on 13.1.1991 Samayalal, brother-in-law of deceased-Mathura Bai had gone to Khairagarh to sell tomato and Sitabai, wife of Samayal was working in the bari & deceased- Mathura Bai was in the house to take care of their child. At 6:00 in the evening when Samay^ilal returned to his home saw his wife sitting on / doorframe, she was weeping. When he asked her, fhen she narrated that somebo^y has killed Mathura Bai with axe. Upon which, he entered the house and saw that deceased - Mathura Bai lying dead. The weapon of offence i.e. axe was also lying there. When he enquired in the house, he found that soinebody has stolen two boxes from the rooin and those were lying in the bari and no articles were stolen from those boxes. Thereafter, he reported the matter in the Police Stadon- Khairagarh. The investigation took place. Dead body of Mathura Bai sent for autopsy. Seizures were made and seized articles were sent for exainination to Forensic Science Laboratory. Statements under Section 161 of Cr.P.C. were recorded. After compledon of investigation, charge sheet under Section 302 of the IPC was filed before the Judicial Magistrate First Class, Khairagarh. In due course the case was committed to the Sessiohs Judge, Rajnandgaon. 3. The leamed Sessions Judge, Rajnandgaon made over the case to the Additional Sessions Judge, Khairgarh for trial. The leamed Additional Sessions Judge has framed charge for the offence punishable under Section 302 of the IPC against the appellant. Charge was read over and was explained to the appellant. The appellant abjured the guilt and pleaded innocence and his defence was that he has been falsely implicated in the offence.6 4. The leamed Additional Sessions Judge has, after evaluatin^ the evidence available on record and hearing the counsel for respective parties, convicted the appellant under Sections 304 of the IPC instead of convicting him under Section 302 of the IPC and sentenced him, as above. 5. I have heard learned counsel appearing for both fhe parties at length and also perused the material available on record. 6. The learned trial Court has convicted the appellant on the ground of memoranduni statement, Ex.P-3 given by the appellant and the seizure, Ex. P4, at the instance ofappellant. 7. Frora perusal of the FIR, lodged by Samayalal, it appears that two boxes were stolen, however they were lying in the bari and no article was stolen from those boxes. 8. Ramsia Bai (P.W.5) has stated that on the date of incident she had gone to river to wash the utensils, she saw the appellant entering the house of Samaylal. She further stated that she had again gone to river to bring the water and when she was retuming, she heard noise coming from the house of Samayalal. When she went to the house of Saraaylal, she saw Mathura Bai lying dead. In cross-exarauiation she stated that when she went to house of Samayalal to see as to what article was stolen, she saw that two Tharkolia (bronze pot) were stolen. She further stated that in her statement under Section 161 Cr.P.C., she did 'not depose before the police that she saw fhe appellant entering the house of Samayalal and she deposed the above fact in her Court stateraent as taught by Sitabai. 9. Manshasram (P.W.l) has deposed that the police prepared Panchnama of deceased -Mathura Bai, Ex.P-1 before him and he signed therein as witness. The police seized one axe, one lock, blood stains soil, plain soil and after making seizure of these articles by police vide Ex.P-2, he also signed on it as witness. Before him the police interrogated the appellant and the appellant stated that he hidden two TharkoHa (bronze pot) in the sand of river. Recovery of those articles at the instance of the appellant was made. The appellant further stated that the shirt which he wom at the time of occurrence, has hidden in his house. In his cross-examination, this witness stated that after making recoveiy they retumed to house of the appellant and the police demanded one bed sheet and shirt from the house of Aktu as at the relevant time there was winter season.Seizure of memo was also proved by DilipSingh (P.W.13), 1.0, G.B. Choudhary (P.W.12), Executive Magistrate. They have stated that the seized articles were identified by Sita Bai and Samaylal. 10,. Sukhidas (P.W.7), Kotwar has stated that Ramsia Bai (P.W.5) has narrated him that at the time of occurrence she had seen the app'ellant going towards the house of Samayalal. Triveni Bai (P.W.4) has also stated him as stated by Rarasia Bai. He along with police went to village Kumhi, from where he along with Prakash Singh Thakur went to call the appellant, who was working in the field. They informed him about the murder of Mathura Bai, whereupon appellant felt extreme apprehension and narrated that when he had gone to the ; house of Samaylal for committing theft and was breaking fhe lock, at that dme, one girl saw him, upon which he killed her with axe. He further narrated that thereafter he entered inside the house and stolen two Tharkolia (bronze pot). In his cross examination he stated that he did not narrate it to the police about confession by the appellant before him. It is not possible that being a Kotwar'of the village, he would not have stated about the confession by appellant to the police. It is clear that befpre the memorandum statement, Ex.P-3, taken by the police and sei2Mre, Ex.P-4 by which theft articles were seized, the police had previous knowledge of this thing. Therefore the memo statement and seizure are of no use. It appears that it is a concocted case. This fact also finds support by the FIR wherein the fact of stolen articles was not mentioned. 11. So far as the case of the prosecufion is concemed there are no eyewitnesses of the incident. The entire prosecution case depends upon circumstantial evidence and those circumstances are- 1. Recovery of stolen articles at the instance of the appellant and 2. Seizure of blood stain shirt from the appellant. 12. Here it is evident that no one has seen the appellant murdering the deceased. It is not disputed that the injury caused on the body of deceased was homicidal in nature and this is evident from the statement ofDr. S.S. Chabra (P.W.ll), which is not disputed. So far as the recovery of articles at the instance of fhe appellant on his raeniorandum is concerned, from perusal of the FIR, Ex.P-16, it would be evident that the fact of stolen articles was not mendoned in the FIR. Samayalal has lodged the FIR; however he was not examined by the prosecution. Report of Forensic Science Laboratory reveals that thy' seized shirt and axe containing bloodstains, marked as itein no.25 & 26 eould not be determined due to disintegration. The pro'secution has failed to establish that shirt which was seized at the instance of appellant is of the appellant. Froin the statement pf Sukhidas Kotwar (P.W.7) it is evident that they were well known ofthe place where the theft articles were recovered. So far as the appellant was seen at the f scene ofoccurrence by Ramsia Bai (P.W.5) and Sita Bai (P.W.6) is concerned, the statements of these two witnesses become doubtful as Ramsia Bai (P.W.5) has stated that she saw Aktu entering the house of Samaylal, but in cross-exainination she stated that she ;'s narrating the fact of seeing the appellant at the place of occurrence as directed by Sitabai. Triveni Bai (P.W.4) who stated that he saw the appellant going from the bari of Sitabai towards river, but it does not mean that the appellant was the murderer. Further that if the appellant would have kept the articjes in the sand of river, this should have seen by Triveni Bai (P.W.4). She has deposed in her stateinent that the appellant was washing his hands and then went towards bagicha. It means that Triveni Bai had enough time to see the appellant's activides. I am of the opinion that the prosecution has failed to establish the case against the appellant beyond reasonable doubt. 13. For the forgoing reasons, I aru of the considered opinion that the learned trial Court has erred in convicting the appellant for the offence punishable under Section 304 of the IPC. 14. In the result, the finding of the learned Additional Sessions Judge convicting the appellant under Section 304 of the IPC caiinot be sustained and is liable to be set aside and this appeal deserves to be allowed. The accused/appellant is entided to acquittal. 15. Accordingly the appeal is allowed and the impugned judgment and order dated 11th August, 1992 passed by the leamed Additional Sessions Judge, Khairagarh is set aside. The accysed/appellant is acquitted of the charge framed against him. He be set at liberty forthwith. R.L. Jhanwar . / Judge