3?n^T '^T f^'lich '<T^T 3TT^?T 5b^i<=b ^vSf r^HI^, ^>Tf|<d<l<S, fsK^l^y MWv{[ **<icb •""•"••••••—^ 200 y^a^ V^K (44?^^) '^PITW^Rf^T ^n^T "APPELLANT V^sus RESPONDeNT (CrJminai Appeai u Divjsion Bench : Honib!@_Shri L.C, Bhodoo | Han'bie Shri T.P. Sharma. 26-2-2008 Heard Shri J.S< Bara| ShukiG/Addi. Pubiic Prosecu^ Orai jpjdQment dictat^d L.C, Bhadoo. J This oppeal is direct^d order of sentence dated Sarguja (<AmbJkapur) in sej Sessions Judge after h <=hl<lf<rt<J1Tl *IM<^ ^l^t 'rf^R^R ^ 3?fRp=T 3?H^T Dhansai Dhobi, 'S/o. Baideo Dhobi, aged 46 years, Caste Dhobi, Occupation Agrjcuiture, r/o. Gram Argoti, Thana Ldkhanpur, Distt. Syrguja (€6} State of C.6,, Through P.S. Lakhanpur, Distt. Sarguja (Ambik^ur) {CG} ider Section 374(2) of the Cr.P.C.) JJ k, counsei for the appelbnt AShri Ashslsh 'or for the StGte. on dals. pd agcinst the Judgment of conviction and ^1.05.2002 passed by ths Sesslons Judge sslons trial No.322/2001 whereby iearned ^iding the accused/appeiJant gui!ty for 3:^cT "qNI^^, yixfl^^Ko, fst<r!»|^^< ^INdl 5bN(cb TI^ 200 ^n^r^ f<^ich 1cT8TT 3TT^?T ^rRW W^ ^R^ (^f^SI^T) '^ITW^ftPT ^TI^T commh^ion of offence und shoft U1fie IPC^ sentencad 2) Case of the prosec Bifna (Chowkldar) bdged the effect that sorpe tim-l with Pancho Bai (since de^ house of her husbond and Korba. On 11.08.2001 (S^ bring his wife Pancho Bai moming, when he was at that on 12.08.2001, at obo| the forest, near KhurKhur wjth a club and committedl why he committed her mu frequentiy for going to he| his house and Jnformed 4 .Sarpanch and Kot^ar, 3) Receiylng this repo| Lakhanpur, registered Firt scene of occurrence afterf CM^t<n<i1Ti ^i^<A '^\'fe(st <F»<^1< ^ sfRw ^Ti^r sr Section 302 of the IndiGn Penal Code (^ him to undergo imprlsonment for iife. ttbn. m brisf, l.s that. on 13.08.2001. PW-1 report .Ex.P-1 m police station Lakhanpur to fe bo.ck accused Dhan Sai Dhobi was'morried |eo.sed), About eight days back, she left the l^ent to her maternal house fiadtunga, District |turday), accused/appeliont Dhansai went to land on 13.08.2001 at cbout 8.00 a.m. in the ils house, Dhansia came to him and disclosed jt 6,30 p.m- when they were returning through cuivert, accused/oppelbnt attacked his wife Iher murder. When PW-1 Bifna asked him as to 9der, he sald that she used to ieove his house maternai house, Thereafter, he returned to ibout the murder of his wife to the Vlllage 'tt, the Station House Officer, p.olice station st Inforrpatlon fteport Ex.P-l< He left for the gjving notice ExP-4 to the panchcs, prepared ^!^ ^n^T ^T fqriic»i ^TSH 3?1^?T 5h^ict» 7vS( ^NK'O^, ^Tfl'yll<o, fst^K-iy ^l^dl **<!<* -^ 200 3^?T 'q^ra? (^?^<^T) ^PITW^rf^f-3?T^T pr€;p|iried •jnauest Ex.P-5 on the bod^ pr^pared panchnama of th.e poiice custody, the accused./|; the pb.ce where he kept th^ which th^ same was seized white cotton baniyan of the Site plan ExP-10 was prepared by the Inv^sti^ examinotion to the doctor Ex.P-15, Bodv of decea^eb1 examination to Communlt)^ H| DrP.S^ K^rtetta conducted death wa^ head injury coy^ yitel function. The jnjury wa^ Ex.P-14. Selz€:dartjc^ies werfe from where r.sport ExP-2 5 ^j wer& 4) After conipletion of Court of Chief Judicioj-AAo' the case to the Cour-t of trioL cbl^i<rt^1T1 'HFRTf ^fe^ if^R^R i^ ^tRm 3?n^r of Pancho Bai. The' Investiaotina Officer Dlace of occurrence under Ex,P»6, WhiJe in |3.ppelbnt gave.memorandum Ex?-7 regarding weopon of offence Le. club, in pursuance of fejnder Ex.P-8. One red coiour towcl.and one Gccused/oppelbnt were selzed under Ex?"9- by Pot^ori and ^ne pbn Ex.P-ll wcs lotlng . Officer... Jhe clob wos sent fo.r ^inder Ex.P-15-A and he gave h Is report of Pancho Bal was sent for oostmort^m mith Centre. Lakhanour under Ex.P-19 where po.st mortem and opined thot th.e cause of ina faceration of broin tissoes by stopping homicjda! m nature. He prepored th©report sent to Forenslc Science Laboratory Saga^ |?os received^ i^vestjgotion, chcrge s'heet was fited in the jstrate, Ambikapur, ^ho In tyrn committed Se^sions Judge, Sarguja (^mbikapur), for 3^' •^1^1^<4, ^xfl^ll<o, fs)01<-1^< NWdl *Nlcb Wi, 200 37T^T ^T f^'ljch 'cT^T -SIT^T sft^icb 3n^?r xrap^ (i^I^^) ^^TTW ^rf^T'STT^T 5) In order to estabiish prosecution examinea 15 ^a.s r^corded under Sectionl .mcteriai appeorina against .h been fabeJy irpplicated in th^ 6) Learned trial Cou^t partle^, convicted and afor^mentioned^ 7) We have heard Shri J Ashi^h Shuklo, ^dditbnal Pu^ •the witihesses .8) Learned counsel for homicidol death of Pancho Bl stoted that on 14.08.2001 Poncho Bai< There were se^l Coaguteted blood was presen muitlple fmcture o.f terTipo| bioo.d wo.s present, Injurie sufficient in the ordinary view of the above. it is homicldcl in ncture, <=bl^t<n<I1l *1H^lf ^f^St <P»1^1< '^^ffHH3?n^T chorge agolnst the accused/appeilant the ^esses. StQtement of the accu^ed/oppeliant 313 of the Cr.P.C. in which he denled the jm. He stated thot he is innocent and ha^ crim^ in question. ^fter hearing counse! for the r^spectiv^ sent^nced the occused/oppEliant as S.Bordik, counsel for the appellant and Shri W.c ProsBcijtor for the S'ta-te. t»e occused/appeSfant has not disputed the Isi. Moreover, Dr. P,S. Ste^ketTO (P,W-5) has ^e conducted postmortem on the body of ^n Injyries on varlous parts of the body. t- beneafh the injury in the heod. There wos ^aS bone, brain was Sacerated and clotted were onte mortem in nature and were of nature to cause death... Therefore, in that the death of Pancho Bal coiprse estbbtished (^ '3^ ^W\^, ^Tfl^'Ko, (s|01<-l^< < ^l^ldl *^1<* "^ 200 3?T^T ^T f<Tlich ^T^T 3TI^T stx-li^ 3:n^?T 1^W ( ^I^cysT ) '^TTW <yf^a 3^?T 9) As far' 05 complidty questlon is concerned, in thl^ Th^ whoie case rests on thel WQS hst alive with the settied bw in order to convtc' evidence, the Hon'bie -Ap| Chatt®rje@Vs. Stat®of W| 'Tn a circuinstances tli to be drawn hd but also that a| should be of a with the hypot| Tho5e being explained|! gui!t of the must be so coml ground tor the of the accuscd, estabilshed c| indianation of conviction and greater shouid evidence lest circurpsTances ined |by accUsed 10) Bas^d on the above ^ ovailabte on record. -4s far chl^l<rl^T1 ^W^S ^fS^t <Fai^K ^r 3^ff?FT g?n^r of the accysed/appel lo.nt jn the crime in ccse, there is- no direct or ocular* evidence. circums'tantiol evidence that the deceased xccused just before her death, As per the ^ct an accused based on the circymstantio! >x Court in the matter of Dhan-anjoy B. (1994) 2 SCC 220 held that: ^d on drcui^starjtiG! evidence, the 'fjrom which the conclysion of guilt Is ^/e not oniy to be fujly established the circumstances so estabiished cbnciusive nature and consistent oniy tiesis of the gujlt of the accused, shouid ' not be. capobie of any other hypothesi^ except the and the chairs of the evidence iiet®G.S not to i^ave anv r^asonobk )e!ief consistent wlth the innocence It needs no reminder that tegaliy rcumstances and not mereiy fc-he court can form the basis of Ithe more . serious the crime, the be the care taken to ^crutinize the ?icion l^xkes the place of proof/' si^p Hnciole. we hav^ scrutinized th^ evidenc^ s the cxtra JudicJQJ confession mad^ by thc 'SvSf ^|<4i^, ^xfl^Ks, ^<»'>i'y^< ^INdl *<41<sh ^ 200 31T^T ^T f<rli<=h ^[^T isTT^T 5b^ich 3H^?T J^3R (X^^^S) ^RITW^ftn 3i7T^T accu^ed is concerned, PW"1 PW-4 Ishwarprasad, ho.ve tu the prosecution ccsc. Even F] and th^a.ccu^ed, has also tyr| not know where her mother I When her fother cam^ to thel 11) Now comma to th<s que^ s^en oilve wlth the accused Court in the matter of Bodhl Jammu & Koshmlr (2002) 8 5 "the theory of time-gap betwe| accused and thel when the deceaj possibiiity of arjy being the autho?{ It would be guilt in cases il evldence to corl were 12) In the ma't'ter of Si| 1 SCC 702 the Hon'b|< cbi^f<n<flTi *iH<?il ^Fs^l <Fn<^i< '^^tfipT^n^r Bifna, PW-2 Devnaroyon, PW-3 bakhaisoi, •ned hostiie and they have not Supported W-6 Ku» 6@Bta, daughter of tha deceased ned hostlb. She has stated thot she do^s sad gone and she ^va^ not with her father. house he dld not disclosc cmything to her. tlon that tha deceosed Pancho Bctl was last ju^t bcfore her d<sath, the Hon'ble Apex 'aj allas and Othcrs vs. Statt of €C4S, held thct: i4tSt seen comes Into play where the ^n the polnt of tlme when the Ideceased were seen iast aiive and ted is fo-und dead is so sma!l that person other than the accused of the crime become^ irnpossibie, haArdous to come to a concjusion of l^here there is no other positive lciude that the accvsed and the |st. together/' Vs. of e Apex Court hcs held that: ^-^ ^tl-MI^^, ^Tfl<rl41<S, fs|<yl>l'M^< ^ NINdl *NI<b ^ 200 37T^T??T f<rlicb ^T^T STT^T 5h^ict> 31T^?T "q?!^ ( 4^1^^) '^ITW^f^T 317^T constitUt^ .".....To the evidence being drawn se^n together with the time evidence of la^t together, r^ust definiteiy permit an inference tHat the victim and the accused were |3t a point of time in close proximity dnd date of commission of crime...," 13) In 'the matter of Sta' SCC 333 the Hon'bie Apex |s of Karnatakfl Vs. M.V. Mehesh (2003) 3 Court has held that: bei^ig "^^Mereiv What has to b^ is definlte ev| been done to must be awar4 b^ing b^t evidence is •In the estabiish in murder on avaibble; to th4 absence bf 14) Bosed on the above p PW-11 N€.giram, who has st( Janmashtami at about 5<i celebratinQ JanmG^htomi The o.ccus^d enquired from repJied that he is going. festiva! of 'Jonrpashtami. A cbi<4f<n<i1Ti ^i^<2il* ^f^st <P'I<^I< '^^tRpTaqn^T SBsn to^t together is not enough. estabiished in a case of this nature jdence to Indicate t'hot B^ena had c|eath of which the respondent is or as also proxirnate to the time of tog.€th€r»No such clinching putlforth. Zt Is no doubt true thct even the coipi/^ ddlctl n is possibie to appropriate case commissjon of c|ppropriat8 materiai being court." s^en cti ^incipie, we have scrutlnized the evidence of [ited that in the early moming on the day of <0p a.m. he was going to village Seciga for feistivai. Near the river h©saw the accused. him 05 to where he was going, on which he. ^p vi!bge Sedga in order to celebrate th^ [^ that time,. Po.ncho Baj, wife of the occused, ^K'3?^^ ~3:v3s ^iqi<^<q, ^rn'y^c, Isf^K-iy ^IMdl **<!<*) ^ 200 3R^T ^T f<rlich ^T^T -3?IT^T 5b^ict) 31T^?T XR1F (^rf^?^) ^RTTW^rf^T ^TI^T olso with the accused^ they are golng, on whic-h th^ and after 12 days he has ^ accused and h Is wife were o^ked Pancho Bai that she sH hdving small children, on wl^ house of Dhansai and thereal 15) Now, the question be-j evidence of PW41 Negirlam| niaterlaj partlculars, the ac murder of his wife, Ther^ bctween the accused &. decl between-the t^o before th^ accused so.id to have madel stoted that she does not kn gone with her father. The <=bl^f<n<flT1 'W^Tf ^fe^t iFt^K ^3TRma?n^r Hz enqyired from the occused as to where accused repSied that his wife had ran away iearched her & brought her, At that time ^hewing tobacco and they were hoppy. He |ouid.not ieft the house of bhonsai, as she is ich she repljed that she wiil not jeove the fter he !eft the pbce, Fore us is that whether on the basls of the , i~-~ without any further corroboration'AWO?^, ^usad can be held gulity for commissJon of is no materiai .to show that the retation ^.ased were strain or there any quarrel |i incident. The before ^hom the [extra judicia! confession hove also turned hostiie and they have no|t' supported the prosecution case, Even Ku, ^eeta (PVV-6), who is dai|ghter of the accused and the deceosed, has ^w where-her mother had gone, she had not ^efore, mereiy on the bo.sis of evidence of r PIV-11 N^giram that he saw j'he occused and the deceosed together near the river, the accusec! c^inot be heid guiity without any further corroboration jn materioi ^ortjcuiars of ony evidence indicating that ^"'" ^' ^f^^ XI-HC^t-78 , %-.. ". •^..' ^SSf ^<|<q|0<q, ^ITfl^'Ko, fs|01'M^< ® 3?n^T ^T f<Tl[cb '9T^T ^n^T'^RW ^' S/Sovs ^IINdl ^WTSF -^ 200 n w^ v^ (44f^<^) '^RnW^rf^T 3?IT^T accused wos having 5ome grL|d betw^en the; two that maa6i wife. 16) Under the circumst^ Neglram the convictjon canr^ gullty for commission of-mi^ sentence mposed opon the ^ b^ sustained. 17). In the resuit^ the app^al upon the Gppellant under S^ction acquitted of the said chargej forthwith, if not requireid in cbl^fd^1T1 ^M<rff ^\'fe^ <Pt^i< '^3tRma?n^T jge again^t hls wif^ or there was any quorrel the occused to. commit the rpurder of his nc^s^ m^reiy on the testimony of PV^-ll bt be based and the accused cannot be h^ld rder.of his wife. According!y, conviction & lccu^ed' under S^ction 302 of the IPC connot ^il is aliowed. Convjction A ^entBnca imposed 302. of th^ IPC or@ set aside. He is Th^ oppeSfant Is in Jail. He be set ot Ilberty ^ny other case^ Sd/- L.C. Bhadoo Judge Sd/- T.P. Sharma Judge