HiGhLCOURTOF CHHATTISGARH AT BILASPUR Coram : Hon'ble Shri T.P.Sharma and Hon'bleShri RajeshwaLLal Jhanwar, JJ, ABBeilant Accusedjin jaiU Criminaj Appeal No. 727 of 2003 Baliram, S/o. Sinduram Rajwar, R/o. Sirkithanga, P.0. Lakhanpur. Vereys Respondent : The State of Chhattisgarh CRIMINAL APPEAL U/S 374 OF CODE OF CRIMINAL PROCEDURE Present : Shri Abhay Tiwari, counselfor the appellant. Shri Rajendra Tripathi, Panel Lawyerforthe Sate/respondent. ORALJUDGMENT (Passedon 22"''March, 2010) ! i The following oral Judgment of the Court was passedj by T.P-Sharma, J. ; 1. Challenge in this appeal is to the judgment 6f conviction and order of sentence dated 30062003 passed by the First Additional Sessions Judge, Surguja in Session Triat No.462/2002, whereby and whereilnder learned Sessions Judge after holding the appellant guilty of commijssion of culpable homicideamounting to murder of Sahodari Baiconvictgd the appellant under Section 302 of Indian Penal Code and sentenced! him to undergoimprisonment for life and fine Rs.-1000/- in default additional R.l for six months. 2. Conviction is impugned on the ground tltat without any evidence, the additionalsessions Judge has convicted and sentenced the ap{)e]lant as aforementioned andthereby committed illegality. | i 3. The caseof the prosecuti6n, in brief isthaton 25.08.2008, atabout 5.30 p.m. deceased Sahodari Baiwent to thej shop of Suraj Raj^war for •s^"- i: ti; tir;'!'-;' ;-!-— A .'<F/^', purchasing coconut. At about 6.00 p.m. Sonkaliya Bai (PW/1) came to the house ofthe deceased and informed the son of the deceased, Biswas Das (PW/10), daughter of the deceased, namely Mayawati (PW/11) and her daughter-in-law that Baliram has assaulted Sahodari Bai with axe and she is lying unconscious. They went to the spot and finally Biswas Das (PW/10) lodged First Infbrmation Report vide Ex-P/14 and merg report vide Ex.P/15. The investigation Officer left for the scene and prepared Panchnama vide Ex.P/4 and the dead body was sent to autopsy^to Community Health Centre, Lakhanpur. Dr. B.R. Singh (PW/9) conducted autopsy and vide Ex.P/9 found the following injuries: (l)tncisewoundoverbackpartofthe neckof4x2x4cm (2) incisewound over teft side ofthe neck of 4x2 x 3cni (3) incise wound over the shoutder of 4 x 1 x 2 cm (4) cervical bone was found cut and two cervical bbnes were dislocated. - 4. During the course of the investigation, blood stained axe wasjtaken into custody and the same was recovered from the appellant. Ctothes of the deceased were seized vide Ex.P/22. The investigatingi Officer prepared the spot map vide Ex.P/23. Seized articles were sent fQri medical examination vide Ex/P/26 presence of blood was confirmed over the axe. 5. Statement of the witnesses were recorded under Section 1S1 of the Cr.P.C. and after completion of the investigation, charge sheetwas filed before the Chief Judicial Magistrate, who in tum committed the case to the Court of Sessions, Ambikapur. Leamed Additionat Sessioi'6 Judge received the case on transfer. \ 6. In order to prove the guitt of thei appellarrt, prosecution has examined as many as ISwitnesses. The accused was examined underj Section 313 of the Cr.P.C,. in which he denied the circumstances appearing against him, pleased innocence and false implication. 7. After affording opportunity of hearing to the parties, learned Sessions Judge convicted and sentenced the appellant in the aforesaid manner. 8. We have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial Court. 9. Learned counsel for the appellant vehementiy argued that the conviction is based on the.solitary witness evidence. Mayawati (PW/11) who has claimed herself as eyewitness, bot according to her previous statement recorded underSection 161 of Cr.P.C. (Ex.D/1),First Information Report (Ex.P/14), Merg intimation (Ex.P/15) Mayawati (PW-11) has notseen the incident and therefore, in the absence of any other evidence and the fact that Mayawati has not seen the incident, the conviction is not on the basis of any clinching and credible evidence. 10. Learned State Counsel hasstated that Mayawati(PW/11) has not seen the incident and her evidence has not been tested. 11. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. 12. In the presentcase, death resulted by the fatal injury of Sahodari Bai has not been substantially disputed- on behalf of the app'ellant, otherwise atso established by the evidence of Dr. B.R. Singh, (PW/9), autopsy report (Ex.P/9) that the death was homicidal in nature. Conviction is based on the sole evidence of Mayawati (PW-11), who claimed herself as eye witness and she has deposed that she heard the sound!of her mother and she rushed towards the spot. Sonkaliya (PW/1) was also shouting that the appellant assaulted her mother by axe and she fell down /', ^t t"lltl;<l)ti-l Bini and then the appellant fled away from the spot. In her cross examination, she has deposed that she has stated the aforesaid statement in her previous statement recorded under Section 161 of the Cr.P.C. Ex.P/1 reveals that she has not seen the incident and she was informed by Sonkaliya Bai (PW/1) when she was at home with her brother Biswas Das (PW/10). Ex.P/14 and Ex.P/15 also reveals that at the time of incident, Mayawati (PW/11) was present in her house alongwith her brother Biswas Das (PW/10). These threedocuments are suffieient to discard the evidence of PW/11 as eyewitness and her claim that she has seen the incident. Sonkaliya Bai (PW/1) has not supported the case of the prosecution. She was declared hostile. The prosecution has not adduced any other evidence. I 13 In orderto prove guiltof the appellant, inithe absence ofan^other ;!:) evidence, the conviction and the sentenceof the appellant under Siection 302 of Indian Penal Code is not sustainable under the law. convicting, the appellate Court has not considered this materiali^spect. For the foregoing reasons the appeal filed by the appellant deserves to be allowed. 14. tn the result, the appealis allowed. Convictionof the apFiellant under Section 302 of thel.P.C andthe sentence awarded thereulhder are set aside. The appellant be set at liberty-at once, if not required||in any other case. While Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge A"--J *.* tffTini-