HIGH COURT OF CHHATTISGARH AT BILASPUR I (Division Bench) ‘ Coram : Hon’ble Shri T.P. Sharma & Hon’ble Shri Rangnath Chandrakar, JJ, Criminal Aggeai No. 471 of 2006 AQEellan Hemla Paiku Vs. Resgondent State of Chhattisgarh JUDGMENT FOR CONSIDERATION Sdl- , R.N.Chandrakar POST FOR JUDGMENT ON U_/t11-2011 VA” “M. V yr f Vwdwn”, Sdl- " " f‘i" Rangnath Chandrakar ~ Judge 3 mlii [2611 t M ‘ Judge \\\ i? V I Hon’ble Shri T.P. Sharma, J. I § Sd/_ a JV: Mg- T. P. Sharn‘i: Judge i {‘Iiiiibif ” sentenced him to undergo imprisonment for life. The case of the prosecution in brief is that the appellant - Hemla Paiku and complainant Hemla Jibo are husband and Wife who Were resrding With the deceased The deceased was the aunt of appellant (Widow of elder brother of appellant’s father) On the date of mcndent i.e., 22-5 2003 the appellant along wrth his family members including the deceased had gone to attend the marriage and saw that the deceased was lying in a pool of blood near the house of Maniram, her neck was cut and she was. dead. Thereafter, she informed Sonu, Maniram and Manku about the incident and along with them went to Sarpanch and other villagers to inform about the incident. it was also alleged by the complainant that appellant used to abuse and quarrel with the deceased as well as the complainant for want of money in drunken condition. One day prior to the incident also the appellant beat the complainant and quarreled with the deceased for want of money. -—--—A\J ceremony at Aitupara ln the evening deceased returned to the house but the complainant stayed there. ln the night at about 9.00 p.m., the complainant also returned to her house as she did not find her husband/appellant at the marriage place. When she reached the house, she found the appellant near the house. He was furious having a knife. The appellant told the complainant that he had committed murder of deceased Hemla Pande. On this she went ?‘—> The complainant Hemla Jibo went to Police Station Geedam and Iodged first information report vide Ex.P/3 and merg intimation vide EX.P/.4. Investigating Officer Ieft for scene of occurrence and after summoning the witnesses vide Ex.P/5 prepared the inquest over the dead body vide EXP/6, spot map vide EX.P/7, sent the dead body of deceased for autopsy to Community Health Centre, Geedam, where Dr. Shyam S. Rotela (PW/4) conducted postmortem vide Ex. ‘P/1 and found inCised wound present in right side of neck 2" x 4x" 1" — transverse Iie, middle of sterno mastoid muscle 2" below mandible edge blood clot present in wound area and opined that cause of death was cardio respiratory arrest due to hypovolemic and neurogenic shock caused and excessive internal and external hemorrhage and death was homicidal in nature. During course of investigation, accused/appellant was arrested vide Ex.P/15 and his memorandum was recorded vide Ex.P/11 and at his instance one sharp edged knife like sickle was seized vide EXP/12, blood stained earth and plain earth were seized from the spot vide Ex.P/13. Statements of witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed against the appellant in the Court of Chief Judicial Magistrate, Danewarda, who in turn committed the case to the Court of Sessions Judge, South Bastar, Danewada. Learned Sessions Judge framed charge under Section 302 of the Indian Penal Code against the appellant who abjured the guilt. I J \ \ In Order to prove the guilt of the appeHant, prosecution examined as many as six witnesses. Accused was examined under Section 313 of the Code of Criminal Procedure, where he denied the circumstances appearing against him and pieaded innocence and faise impiication. After affording an opportunity of hearing to the parties, the learned Sessions Judge convicted and sentenced the appellant as aforementioned. We have heard learned counsel for the parties and perused the record of the trial court as also the impugned judgment Shri Abhay Tiwari, learned counsel appearing for the appellant vehemently argued that‘convictic‘m is based on the evidence of alleged eye-witnesses Palobai (PW/1) and Sonaru (PW/5) whose names do not find place in first information report. Thus, the evidence of the aforesaid witnesses does not inspire confidence and trustworthy. The complainant Hemla Jibo who lodged first information report has not been examined by the prosecution. The evidence adduced on behalf of the prosecution is not sufficient for drawing inference that the present appellant has caused homicidal death of deceased Hemla Pande. Per contra Smt. Madhunisha Singh, learned Panel Lawyer appearing on behalf of the State supporting the judgment impugned submitted that conviction of the appellants is based on the evidence of eye—witnesses Palobai (PW/1) and Sonaru (PW/5) and their evidence inspires confidence and trustworthy. The prosecution has proved its case beyond all reasonable doubt and '\, the evidence adduced on behalf of the prosecution is sufficient for drawing inference that the present appellant has caused homicidai death of Hemia Pande. After appreciating the evidence available on record, the court below has rightly convicted and sentenced the appellant as aforementioned. in order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduced on behalf of the prosecUtion. In the present case, homicidalf‘death of the deceased Hemia Pande is not in dispute. Even othenNise, it is also established by the evidence of Dr. Shyam S. Rotela (PW/4) and autopsy report (Ex.P/1) that the death of Hemia PandeWas homicidal in nature. As regards complicity of the appellant is concerned, conviction is based on the evidence of alleged eye-witnesses PW/1 Palobai r and PW/5 Sonaru. As per evidence of PW/1 Palobai, the deceased Hemia Pande (Pandebai) was her mother and the appellant is her cousin. She deposed that the incident took place in the evening. The appellant assaulted the deceased with a knife which was witnessed by her and she fled away from the houSe due to fear. In her cross examination she denied to give the statement of EX.D/1 to the Police from “l was doing work in my house .............. came out.". She admitted the suggestion that she was giving the statement in the court after having discussion with the villagers and as per their advice. The testimony of this witness appears to be contradictOry to her statement given to the Police vide EX.D/1 wherein she stated sh k he s o g that when e was woring in r house, he came ut hearin the if a outcry and saw that the appellant having a kne was standing ner the eceased who tried to run from he sot d coming ear he d t p an n t bor o her hou s fell down an after ome time she died. unday f se he d s Thereaftr, she infor her eighbours aut t incident. On th e med n bo he e next ay a meetin was vened in t village and report was lodged. The apellant did ot atte the meeting and was p n nd snd Ts, he t c dete fe abcoing. hu t winess ompletely viad beor the court rom her diar stement x.D/1) n nrt the nw acts f y at (E ad araed e f bfore he court. Se even denid to give ay stten t Police. e t h e n aemt o As pe vee of /5 ona, the appllant was nephw f the r eidnc PW Sru e e o decd a wa liing in e e o decease. T incn ease nd s v th hous f d he idet took place in the night. At that time, he alng with Paloba (PW/1), o i Paiku (apeant), ibo B (complaiant) and Pnde Bai (since pll J ai n a dce sitting in t se o decased. T apellant eeasd) was he hoU f e he p sted th decased i nife on her eck du to whic her asaul e e wth a k n e h s Th to se S a n t neck wa cut. ey ran the hou of onu nd Maku due o fear d naed thm aut the incint. t nex y of the an rrat e bo de On he t da int Plc cm h sot o tig erogd ciden, oie ae to te p fr invesation and intrate the apella i is preence. The apellant aditted to sault pnt n h s p m as th eceased with a nife hc s cocealed in the kitchen e d k wih wa n e Treaft a uce k garden of this witnss. heer, the appellnt prodd thenife for‘ seizure by the Police. The witness admitted his thumb impression on the memorandum and seizure. He also admitted seizure of blood stained earth and plain earth as also the cloths found over the dead body of deceased. In his cross examination \\. d g con he he admitted to gd to Aitupara to attend the marriage along with Jibo (compiainant), Pande Bai (deceased), the appeliant and Palobai (PW/1). In the evening, they went to their houses. He further admittd that they ca o from he house after hrin the outcry e me ut t eag of the ceased an oud dad b ‘ nde Bai lying bhind his kitchen garde At t time, the applint a Paiku as not prest on the spot. Thus, it is clear tt the appellant em ai no sen n o ti o ICidt Hla Pku was t pret o the spt at the me f nen ad as pr he temony of ts ness e and Palob (PW/1) n e t sti hi Wit h ai ere not resent on h spot at th te of inident. w p te e im c O a ose crutin of t evidn of the oresaid witesses, thei n cl sy he ece af n r statements are, cotraictory as lobai PW) clerly deying her nd Pa (/1 a n statement x./1), stted at the incint ok place in her rsenc whea as per evidence of Sonaru PW/5), husband of Palobai (PW/), both o the ere in their ouse and the came out fro the hoe oy after hearing the outcry of deceased and saw that the dead bod of deceasd was lying near their y e tChen grden. At that me, lnt w not pret on the spot. It is'also ertint o mentn re ta onaru PW/5) std in his utestimony hat the incident too plae in th houe of Pande Bai (deceased) where he was, present along with Palobai (PW/1), and the complainant — Jibo Bai (not examined) whereas in his cross examinationhe admitted to be present in his own house. As per his testimony at para 2 the incident took place in the house of deceased but in para 6 of his cross examination, he admitted that the dead body was lying near his, kitchen garden which in itself de d fn the e ody of Pa e n. tha ea Heml w en ha (ED a th de to pee res ( the 1 f m w h y m us nl ki a ti appela as esn pne t io he ht S ( ate t k c e s falsifies his statement and shows that he was not an eye-witness and if the incident took place in the house of deceased how the dead body was found near his kitchen garden Thus his eVIdence does not appear to be rellable and trustworthy Apart from the aforesaid, the FIR (EXP/3) and merg intimation (EXP/4) were Iodged by complainant Jibo Bai, wife of the appellant who was not examined by the prosecution. Not only this, it is also apparent on perusal of the FIR that the‘ FIR was recorded through a translator namely Asharam as a note is put in the FIR by the Station House Officer that as the complainant did not understand Hindi, therefore, it was recorded through the translator Asharam but the so called Asharam was also not examined by the prosecution. Thus, the FIR also does not appear to be reliable. So far as the question of reliability of the alleged eye-witnesses namely Palobai (PW/1) and Sonaru (PW/5) is concerned, it is clear from perusal of the FIR that they were not present on the spot and their names do not find place in the FIR as eye-witnesses. The testimonies of Palobai (PW/1) and Sonaru (PW/5) are not only self—contradictory but also did not corroborate each other and their testimonies are totally different from the story as narrated in the FIR. 17. The other aspect of the case Is place of mcrdent In the FIR the InCIdent Is mentioned to be near the house of Manlram whereas In the inquest report it is mentioned that the dead body was found in the open place near the house of Sonaru (PW/5). In the spot map (Ex.P/7) also the dead body was shown to be found in the open place whereas Palobai (PW/1) failed to mention the place of incident in her deposition and Sonaru (PW/5) mentioned the piace of incident to be the house of deceased who, in his cross examination admitted to find the dead body lying near his kitchen garden. Thus, on the basis of aforesaid appreciation of evidence there is also uncertainty about the piace of occurrence. So far as the recovery of weapon of offence at the instance of appellant is concerned, if it is admitted to be true, the weapon of offence was sent for examination by the Doctor Shyam Rotela (PW/4) vide Ex.P/9 and he gave his report vide Ex.P/2 but no blood stain was found on the seized knife as admitted by Dr. Shyam Rotela (PW/4) in his cross examination at para 4. That apart, there is no report from FSL about presence of blood on the seized articles. Minute scrutiny of the entire evidence available on record goes to show that the prosecutiOn has not proved its case beyond all reasonable doubt against the appellant and the evidence adduced on behalf of the prosecution is not sufficient for drawing a definite conclusion that the present appellant has committed homicidal death of the deceased Hemla Pande. It is very strange and painful that in such a case of ghastly murder, thereal culprit is out of clutch of the police and an innocent person is behind the bar for such a long period. The trial Court has committed a grave error of law in convicting and sentencing the appellant in such a case of no evidence. Considering all the facts and circumstances of the case and on re- appraisal of the entire evidence available on record, we are of the considered opinion that the court below while convicting and sentencing the appellant has not considered the aforesaid aspects and thereby committed illegality. Thus, the conviction and sentence of the appellant'deserves to be set aside. Consequently, the appeal is allowed Conviction of the appellant under Section 302 of the IPC is set aside. He is acquitted of the charge under Section 302 of the IPC and he be set at liberty forthwhh’ if ”9t required in any other case. ‘ “at: Sdl- y lV g Rangnath Chandrakar § Judge N