HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA & HON’BLE MR. R. L. JHANWAR, JJ. Criminal Appeal No. 1 108 /2004 CRIMINAL APPEAL UIS 374 OF THE CODE OF CRIMINAL PROCEDURE — 1973. \ Present:— Shri Anand Kumar Gupta, Advocate for the appellant. Shri Ashish Shukla, G.A. for the State/respondent. ORALJUDGEMENT (Passed on 17/09/2010) The following judgment of the Court was passed bv T.P.‘ Shanna, J:- 1. Challenge in this appeal is to the judgment of conviction and order of ‘sentence dated 26/ 11/04 passed by 4th Additional Sessions Judge, (F.T.C.) Ambikapur, Sarguja in Sessions Trial No. 113/04 whereby and where under after holding the appellant guilty for the commission of offence punishable under Section 302 of the Indian Penal Code for causing the murder of his father Kalluram and sentenced APPELLANT ‘Shobhan Ram S/o late Kalluram, aged about 36 yeafs, R/o Vmage Kumhrata Police Station Darima § u f District Sarguja, C.G. ‘ Versus RESPONDENT ‘ State of Chhattisgarh through £. Police Station Dan’ma District Sarguja, C.G. imprisonment for life and flne of Rs. 1000/—, in default of payment of fme amount additional n‘gorous imprisonment for 1 year. Conviction is impugmd on the ground that without any iota of evidence sufficient for conviciion of the appellant, Court below has convicted and sentenced the appellant as aforementioned and thereby committed an illegality As per‘case of the prosecution, on the date of incident i.e. 26/ 10/2003 one Kalluram, father of the appellant Shobhan Ram has consumed Handiya “an intoxicant. Present appellant who was “caste Priest—Panda” and used to teach the persons not drink liquor. He annoyed with his father Kalluram and left his house then his father Kalluram told him that he should not come to his house in future thereby appellant annoyed and assaulted his father by blunt part of axe Kalluram fell down, appellant caused repeated injury to his father Kalluram. On second day, his brother Lobhan Ram went to the Police Station and lodged First Information Report vide Ex. P—l. Kalluram was examined by PWIO Dr. G. Singh vide Ex. P-10 and found as many as 4 injuries, lastly on 1/ 11/2003 Kalluram died. Marg was recorded vide Ex. P-21. Spot map was prepared vide Ex. P—22. After summoning‘the witnesses, inquest over the dead body of deceased Kalluram was prepared vide Ex. P-2. Autopsy was conducted by PW13 Dr. J.K. Relawani vi’de Ex. P—26 and found injury over chest. Fracture of humorous bone and 2nd, 3rd, 4th & 5th ribs were found and puncher of lungs by piece of ribs. s Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short ‘the Code’). After completion of the investigation charge ‘sheet was filed before the Judicial Magistrate First Class Amblkapur who 1n tum committed the case to the Court of Sess1ons Judge, Ambikapur Kom where learned 4th Additional Sessions Judge (F.T.C.), Ambikapur received the case on transfer for trial. In order to prove the guilt of the appellant/accused prosecution examined as many as 13 witnesses. Accused/appellant was examined under Section 313 of the Code where he denied the circumstances appearing against him, innocency and false implication is claimed. After anording an opportunity of hearing to the parties learned 4m Additional Sessions Judge (F.T.C.), Ambikapur convicted and sentenced the appellant as aforementioned. Learned counsel for the appellant Shri Anand Kumar Gupta and learned G.A. for the State/respondent Shri Ashish Shukla are heard. Judgment impugned and record of Court below perused. Learned counsel for the appellant vehemently argued that originally, present case was based on evidence of eyewitnesses but they have not supported the case of s the prosecution then appellant has been convicted on V? the basis of circumstantial evidence. Court below has £ considered following circumstances against the appellant: — 1. At the instance of appellant axe was recovered. 2. Accused/appellant was stained with blood. 3. Knowingly the fact that his father was badly injured appellant had not cooperated his father for treatment and has tried to avoid to assist his father for treatment. Learned counsel for the appellant further argued that if the circumstances are considered together then same would not be sufncient for conviction of the appellant. 10. On the other hand, learned Govt. Advocate for the State/ respondent opposed the appeal. ll. In order to appreciate the argument advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 12. In the present case, homicidal death of Kalluram as a result of fatal injury has not been substantially disputed by rthe appellant on the other hand, otherwise also established by the evidence of PW13 Dr. J.K. Relwani & his report Ex. P—26 andpPWlO Dr. G. Singh t & his report P- 10. Death was homicidal in nature. latf In the present case, prosecution has examined PWI Lobhan Ram brother of the appellant, PW2 Umed alias Kunwar"Bai wife of Lobhan Ram, PW3 Kedi Bai wife of Kalluram and PW4 Sohan Lal but they have not supported the case of the prosecution. Conviction is based only on e evidence of recovery of axe at the th instance of appellant a blood found over the axe and nd non-cooperating conduct of the pellant. If these ap circumstances are considered togethe then s may r ame be sufiicient for casting suspicion upon the appellant that appellant would have committed offence but are not sufficient for drawing definite conclusion that appellant has committed aforesaid offene. c In these circumstances, the evidence adduced on behalf of the prosecution are ot sumcient for drawing definite n conclusion against the accusd/appellant relating to e commission of murder of his father Kalluram. While convicting the appellant Under Section 302 of the Indian Penal Code, Court below has not considered the aforesaid aspect of the case and thereby committed an illegality. 1i For the foregoing reason, we are of the considered View that conviction and sentence of the appellant is not sustainable under the appeal. Consequently, Criminal appeal is allowed. Conviction. and sentence of the appellant Under Section 302 of the Indian Penal Code is hereby set-aside. He be set at liberty at once. He be released forthwith, if not required in any other case. Sd/- Sd/— T.P. Sharma R.L. Jhanwar Judge Judge