iiBa« »t»tt^ :r^=-^n^^3gE,^ IN TME HIGH COURT OF Cffi-ATTISGARH AT BILASPUR (G.G.) CR.A. l£"--^'-72002. ( CRIMINft.L A£i3?EAX. a EB___SEGTxON_.374(2) OF THE CODE OF CRIMINAL PROO&DURE , 1973.) ,>^v APPELIAMTS (IN JAIL) g»-' s^s^'1' ,^ or"'':r^-;"{-5..^ V .^•"" 4.)..--' (1) Ganesh Ram chouhan S/o Ramayan Ci-iouhan,Aged about 2 3 yea rs . (2) Krishan Kumar Ghouhan S/o Harnarayan Ghouhan.Aged about 26 years. Both resident o£ villa.ge- Markara, P.S. -Kasdol , D.i.sfet.-Raipur (c.G.) VERSUS i3i'7ffi?4 stra RESPONDBNT State of Cnhattisga'rh Through ; P.S. Kasdol Distt. Raipur (c.G.) -;ffi <-^s •^ ^ ./-' HIGH COURT OF JUDICATURE AT BILASPUR (CHHAmSGARHl (DIVISION BBMCH1 CRIMIWAL APPBAL N0.652 QP 2002 Ganesh Ram Chouliaa & aiiotber Versus - State of Chliattisgarh JUDGMENT FOR CONSIDERATION HQN'BLE THE CHIEP JUSTICE Sd/- L.C.BHADOO Judge .),.__ Chief Justice P08T FORJUDGMENT OVS'/*-- NOVEMBER. 3004 N"'i?~.''-i-J-'s;N Sd/- -UT» U OB - _g&.l 1,2004 n HIGH COURT OF JUDICATUREATBIIA8PUR, CHHATTISGAKH (DIVI8ION BENCHl COR&M;- HON'BLE MR. A.8.V. MOORTHY, C.J. AND HON'BLE MR. L.C. BHADOO, J. CMMINAiLAPPBAL N0.652 OF 2002 Ganeah Ram. Cboulian. & auotber - Versus - State of Chhattisgarh Present; Shri V.C. Ottalwar, Advocate; For the appellaats. Shri Neeraj Mehta, Panel Lawyer: For fhe State/ respondeut. JUDGMENT (DeUvercd on 3f^' Noveiaber, 2004) The foUowiag ludgment of ttie Court was delivered bv J'usttce^.C; Bhtidoo; - The accused/appeUaats have preferred fbis cruuiaal appeal beiag aggrieved by tfae judginent of conviction aad senteflice dated 9-5- 2002 passed by the 2n<l Additional Sessions Judge, Batoda Bazar, Raipur in. Sessions Trial No.434/2001, whereby leamed Additioiial Sessions Judge after holding the accused/appeUants guilty for coimnission of ttie offence under Section 302 read with Section 34 oftlie I.P.C., seutenced eacfa. of tliem. to undergo imprisonaient for life and to pay a fiue of Rs.500/-, m default of payment of fine to furttier undei^o R.I. for 6 months. (2) Brlef facts leadtag to flUng of ttils crltulnal appeal arc (tiat Bliuri Bai, motfaer of deceased Sadaram, gave a merg mtimatioa (Ex.- r" 2 ltsgfittes 'WS^ P/ 1) to the In-char^e, Police Station Kasdol fhat ia the inomiag of 4-9- 2001 her son Sadarani afler taldng Rs.700/-for purchasiag tomatQ and vegetables, left for Shivri Narayati. But, ia the evening, he did not retuni. Even she enquired fi-om Sitaram about her son. Sitaram disclosed that about 3 pBi Sadaram met him. in Katgi niarket aad he was seUmg vegetables. In the moming of 5-9-2001 at about 8 am Alagram Kewat came to her house aad informed fhat one person has inform.ed fliat a body of the person who was seUing vegetables is lying m a pond of vUlage Jhabadi. On recelvitig thls tiiformatlon she left for the pond aloug wlth Sunder Choufaaa. When she reached fhe spot, she saw tliat few pcrsons wcrc staaduig fhcrc aad thc body of hcr son was lyiag thcrc, Thc cyclc aad baskct of vegctablcs wcrc also lying thcrc, Oa rcccivinj this iufomiation, a case was registered. PW-16 Paras Rani Yadav took up tfae investigation. He went to the scene of occurrence, after giving notice to the Paachas he prepared Panchanama (Ex.-9-A) of fhe body. Thereafier, the dead body of Sadaram. was sent for postruortem. examination to the PrLmai^' Healfh Ceiitre, Kasdol wheic Dr. Y.K. Sharma conducted fhe postinorteiii on the dead body of Sadaram. Dr. Sharaia noticed as many as 6 injuries on the dead body of Sadaram aad prepared fhe postmortem report Ex.-P/ 19. After postmortem, he reached to the conclusion fhat cause of death of Sadarain was asphyxia due to drowumg wittun 48 hours and fhe natiire ofdeath was homicidal. (3) The Investigating Officer took into possesslon plain soil and ttie blood staiaed soU Irom ttte place of incideiit as also cycle, basket aad the knife. The accused/appeUants during police custody gave information under Scction 27 of thc Evidencc Act and pursuant to that, clothcs of fhc accuscd pcrsons wcrc rccovcrcd at thcir instaiicc, wbich were stained with blood. The saine were sent for chenucal examBiatLon /.^1 \'\^/ 3 ~=~T ;SI;^:s-i': to the Forensic Science Laboratoiy, Raipur froiu wbere the report was received. After conipletion of the itivestigation, charge sheet was filed agamst the accused/appeUarits for conunission of the ofence under Section 302 read wifh. Section 34 of fhe I.P.C. ia fhe Court ofJudicial Magistrate, 1st Class, Baloda Bazar wlio iu turu conmutted the case to the Sessions Judge, Raipur, froio. where fhe 2nd Additional Sessions Judge, Baloda Bazar, Raipur received ttie case on fa-ansfer. (4) Leamed Additional Sessions Judge after hearing PubUc Prosecutor aad counsel for ftie accused aud perusal of the records, rcacbed to thc conclusion fhat priina facic offence uudcr Scction 302 icad with Scction 34 of thc I.P.C, was inadc out again.st cach of fbc accused. Accorduigly, he framed thc cbar^es agaiast the acciiscd persons aad explained to fh.ein. They denied fhe cbarges aiid clauned to, be tried. (S) The prosecution in order to prove the offence agaiust fhe accused/appeUants examitied in. all 16 wittiesses. On fhe ofber hand, stateinents of tiie accused/appeUaats were recorded uader Section 313 of fhe Cr.P.C. in which each of tiie accused/appeUants denied the prosecution evidence aud stated that they are innocent aud have been. falsely implicated in the crune. However, learaed Additional Sessions Judge after hearing arguraents of counsel for the accused aad Additional Public Prosecutor convicted aad sentenced each of the accused as mentioned above. (6) We have heard Shri V.C. Ottalwar, leamed couiisel for fhe aecuscd/appcUants aud Shri Ncciaj Mchta, Pancl Lawycr for thc State/rcspondcnt. _ ?) c, / 4 ^^liJ'SSn (7) As far as the question of nature of death of Sadaraoi beiag hoiuicidal is concemed, leamed counsel for the appeUants bas not disputed this fact. Even ofherwise, Dr. Y.K. Shanna (P.W.-15), who conducted the postmortem ou fhe dead body of Sadaram, has categorically stated that ou 6-9-2001 he was workmg as Medical Officer, In-charge, Primary Health Ceutre, Kasdol and oa fhat day on ftie request of fhe PoUce Station, Kasdol Iie conducted the postmortem on ttie body of Sadaram. He noticed as miany as 6 extemal tajuries on the body of Sadaram. In his opmion, cause of death was asphyxia due to drowntn^ aad the death of Sadaram was Iiomicidal is. nature. Therefore, tn view of thc cvidcncc of Dr. Y.K, Shanna, it staiids provcd that natuic of fhc; dcath of Sadaraia was hoiaicidal. (8) Now, coming to fhe uivolvein.ent of tlie accused/ appellants ui coirunittmg the miurder of Sadarani is conceraed, PW-7 Rain Klulawau and PW-8 Raugnafh were clted as eyewitaesses to the uicident, but both of thein have tumed hostile duriag trial. They have not supported the prosecution case. FW-7 Ram Khilawan iu the cross-examimntinn by fhe Additional Public Prosecutor has stated fhat he has not given stateiuent to fhe poUce that he saw the accused persons assaultmg Sadaraia. In the farther cross-exammation this witaess has stated that near viUage accused Gaaesli Ram and Krishna Kuinar niet TiJTn and said fhat thev have comnutted murdcr of Sadaram. But perusal ofthe poUce case diaiy statement Ex.-P/7 shows that this fact ttiat ttie accused persons made extra judiclal confesslon before him was not disclosed by him ia tfae poUce case diary statement. Therefore, the slatement of ttus wxtness that thc accuscd/appcUants inadc cxtra judicial confcssion caniiot bc belicvcd arid rcUcd upon, Tbc evidcncc of fhis witacss docs not irispirc confidence, nor the prosecution has cited fhis ^taess as a wltuess before K» UQ '•es* wboiu tiie accused persons luade extra judicial confession. In para-7 of the stateiaent he has stated fhat since the poMce asked him axid Raugnath to enquire from. fhe accused persons aud in presence of the police fhe accused peraons coiifessed the crime, fherefore, on account of fhia fact also his evidence is not admissible. Sinular is ftie evidence of PW-8 Raagnath. He has not supported the case of the prosecution that he witnessed fhe crime and fhis witaess was declared hostile. However, he tmproved his statement asd stated tfaat the accused persons inade extra Judicial before luin. But, ia fhe ftu-th.er cross-examiaatlon he has staied ttiat ta presence of police the accused persons made extra judicial confession, on fhis count his cvidcncc caniiot bc rclicd upon. Evcn othcnvisc, in poUcc casc diary statenicnt (Ex.-P/ 12) ttus witiicss simply stated that he along with Ram. Klulawau wituessed the iacident. He' had not inade any stateinent that fhe accused persons inade extra judicial confession before hiTn aiid Ram Khtlawaa. Therefore, his evidence to this extent caniiot be believed aud reUed upon in holding fhe accused/appeUa.a.ts guitiy. There is tlot a& iota of evidence or ocular evidea.ee, wbich proved fhat the accused/appeUants assaulted fhe deceased and coiainitted his niurder. (9) Now, comiag to the circumstaatial evidence, the prosecution has tried to connect the accused/appeUants based on the recoveiy offhe clotties of the accused/appeUauts. FW-16 Paras Ram Yadav, luvestigating Offlcer, has stated that each of tbe accused gave toformatlon to liim under Section 27 of the Evidence Act. Accused Gaaesh Ram gave iaformation (Ex.-P/2) and in pursuance ofttaat he got icGovcTcd shirt and fuU paxit froxa thc placc of iiicidcnt, Thc sainc wcrc takcn into posscssion. uiidcr Ex.-P/3. Sinularly, accuscd Krishaa Kumar gave niform.atiou. (Ex. -P/ 4) aud i& pursuan.ee of tbat he got recovered his *'?• jjT- te: -: •-1—1 b ^S!S'Si-^ ^^^'^^^•E^S-fe.- }m3V^^ ':'s!)afj!^Sj§ fall paat. Even if the above evidence of tiie Investigatuig Officer is believed, even then this evidence does ixot coanect the accused/appe11ants wifb. the couuaission of in.iuxter of Sadaratn because the F.S.L. report shows that on the shirt of each accused blood was foiuid, but fhere is no report that fh.e same blood was human blood aud also same was of the blood group of the deceased, therefore, in tfae absence of fhis evidence inerely on fhe basis of recovery of clothes of the accused persons, ttiey caruiot be connected witfa tbe murder of Sadaram.. Therefore, we are of the considered opmlon that the prosecutlon has utterly faUed tn provmg the offence against fhe accused/appeUants for coinnussion of inuidcr of Sadaiain. In fhc circuiiistanccs, fiadiag of thc trial Coiirt convicting tlic accuscd/appcUants for niurdcr of Sadarani cannot be sustaiaed for the reasons tnen.ti.oned above. (10) In the result, the appeal of the appeUants succeeds and the sanie is aUowed. The accused/appeUants nacaely, Gauesh Raru Choulian and Krishna Kum.ar Chouliaa are acquitted of the charge uader Section. 302 read with Section 34 of fhfi I.P.C.. Thev be released fofthwith, ifnot required in. any other case. -J-._-._-.^^_. A i ^ Sd/- Chief Justice Sd/- L.C.BHADOO Judge 1^-11-2004 Barve