/^\~ //^//) HIGH COURT OF CHHATTISOARH AT BILASPUR Criminal Appeal No. 744 of 1993 HON'BLE MR.T.P.SHARMA & HONBLE MR. N.K. Agarwal, JJ. Chhatrapal Sin^i, aged 47 years, son of Waran Singh Rqput, occupation Service, resident of Sudwara, Outpost Deokar, P.S. Saja, Distt. Durg (M.P.) Versus State of Madhya Pradesh, througli the District Magistrate, Durg M.P. APPELLANT (Accused IH Jail) RESPONDENT (CRMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRMmAL PROCEDURE, 1973) Present- Shri Abhay Tiwari, Advocate, for fhe appellant. Shri Akhfl Mishra, Dy. Govt. Advocate for the State. , J.:- JUDGMBNT (Passed on 3rd March, 2010) The judgment ofthe Court was deMvered by T.P.i 1. Challenge m this appeal is to the judgment of conviction order of sentence dated 18-6-1993 passed by the 3rd Additional Sessions Judge, Durg, Camp Bemetara in Sessions Trial No. 363/91 whereby and whereunder leamed Additional Sessions Judge after holdtng the appellant guflty for commission of culpable homicide amoiinting to murder of his wife Rampyari, convicted fhe appellant under Section 302 of I.P.C. and sentenced him to undepgo unprisonment forlife. 2. Judgment of conviction is impugned on the ground that without there being an iota of evideace, the Court belcw has convicted and sentenced fhe appellant as aforementioned and thereby conmutted ittegaltty. 3. Brief facts of fhe prosecution caae are fhat the deceased Rampyari, wtfe of the appellant was residmg ivifh the appeUant at vfflage Budhwara, District Durg. On feteful day of 5-5-1991 at about 7. 15 a.m., Rampyari was present ia her •--•<"••. ^vi) ^^' house, fhe appeUant along wifh co-accused Vinay Kumar caused her deafti by strangulation aad set her ablaze. Persons of the vicmity came. Co-accused Vinay Kinnar weat to police station and lodged F.I.R. vide Ex. P-23. Merg was recorded vide Ex. P-22 and P-24. The Investigating Officer left for the scene of occiuTence. After summoning the witnesses vlde Ex. P-1, inquest over the dead body was prepared vide Ex. P-2. Dead body was sent for autopsy to Primaiy Health Centre, Dharadha vide Ex. P-15. A team of doctors P.W. 8 Dr. D.K. Qupta and P.W. 9 Dr. P.D. Chandrawanshi conducted autopsy vide Ex. P-16 and foiind followmg symptoms:- Tongue protruded and frothy blood was dischai^ed from both the nostrils. Her scalp hairs were bumt on front side onty and ha~ body was black in colour due to bnms from head to toe. Smell of kerosene was found on the body. Ligature mark was found on the neck. Deceased was bumed 100%. Bum injury was post mortem: and cause ofdeafh was asphyxia as a result of strangulation. 4. AppeUant Chhatrapal was also examined vide Ex. P-19 and bristles were found over hls fingers. The container of kerosene, mateh box, clofhes of the dceeased were selzed vide Ex. P-3. Clothes of the deceased was seized after autopsy vide Ex. P-4. The letter written by the deceased Ex. P-8 to P-13 were seized vlde Ex. P-5. Spot map was prepared vide Ex. P-6. Letter written by the deceased was also seized vlde Ex. P-7. 5. Statement of accused was recorded under Secticai 161 of the Code of Crimmal Pi-ocedure, 1973 (heremafter refen-ed to as the Code'). After completion of investigation, charge sheet was filed in fhe Court of Judicial Ma^rtrate First Class, Bemetara who in ti.im committed the case to the Court of Session, Durg from where the Additional Sessions Judge received the case on transfer for trial. 6. In order to prove fhe guUt of appeHant, prosecutton exammed ^ many as 12 witaesses. Statements of the /^' /' -<!' "1-^ Raff* accused persons were also recorded under Sectiaa 313 ofthe Code where thcy derded (he circi.unstances appearinj against them and claimed innocence and false implication; 7. After aflfording opportunity of hearu^ to fhe parties, leamcd addltional Sessions Judge, has acquitted co-accused Vinay Kumar, however has convlcted and sentenced fhe appellant as aforementioned. 8. We have heard Shri Abhay Tiwari, leamed coiinsd for the appeUant and Shri Akhil Mishra, learned Dy. Govt. Advocate, for the State/respondent and penjsed tfae judgmait unpugaed and the record offhe Court below. 9. Leamed counsel for the appellant vehemenfty argaed fhat alfhough homicidal death of fhe deceased is disputed but the appeUant is not disputmg hoiniddal death of the appeUant. Prosecution has adduced eridence in its support but the witnesses present on fhe spot have categoricaUy stated that fhe appellant was not present inside fhe house, he was present with ftiem and flrst time, P.W. 5 Jogl Nai noticed the incident and fire coinmg from inside the house of the appellant, fhen (he appeUant along with ofher persons went to the house and tried to save his wife, whicb shows that the appellant h^ not committed fhe aforesaid ofience. He has not tried to conceal the evidence of criminal case. 10. On the other hand, Shri Akhil Mishra, leamed Dy. Govt. Advocate, vehemeofly opposed the appeal and submits that (he appellaat is husband of deceased Rampyari, fhe incident took place at about 5.15 hrs at momtag, fhe appeUant was present wifh his wife in the night in his house aad the appellant has not ofFered any explanation as to how she died and who has caused her hoinicidal death. These are adverse circiimstances against the appeUant. He further argued that the evidence ofP.W. 10 Jogi Nal does not inspire confidence. His entire evldence sliows fhat he tried to save the appellant since its laception. 11. In order to appreciate the ai^mnent advanced on behalf of the parties, we have examfaed the evidence adduced on beha]foffhe prosecution. 12. In the present case, homicidal deafh of Rampyari as a result of strangulation has not been substantialfy disputed, otherwise It is established by the ewidence ofP.W. 8 Dr. D.K. Oupta and P.W. 9 Dr. P.D. Chandrawanshi, autopsy report Ex. P-16, and presence of Ijgature mark over neck of the deceased, wtuch are suflflcient for drawing inference fhat the death ofthe deceased was homicidal in na.twe. 13. As regards complicily of fhe appeUant in fhe crune m question, P.W. 10 Joy. Nai has deposed in his evidence that at the time ofincident, he saw Dhuwan coming out from the house of fhe appellant, then persons gatfaered near the house of the appeUant. The appellant was present wifh his father. He also rushed and opened the door by kicldng the door and went inside. He tried to extinguish the fiLre. 14. P.W. 1 Ratti Ram has also deposed tfaat he saw fhat DSw.wanwas coming out fi-om the house of fhe appellaat. It was first time noticed by him and he told about it to P.W. 10 Jogi Nai and Sadhu and they told it to others. Evidenc^ of P.W. 7 Saraswati Bal is also substantiaily corroborates the evidence ofP.W. 10 Jogi Nal. Prosecution has not examined any other witnesses. If fhe evidence of P.W. 10 Jo& Nai, P.W. 1 Ratti Ram andP.W. 7 Saraswati Bai is considered together then it may be inferrcd fhat Joff. Nai has seen Dhuwan comlng out from the house of the appellant first time and at that tfme, fhe appellant was not present inside the house and he was present outside fhe house along with his fafher. Other persons gathered near fhe house crf the ^)pellant and tried to extinguish the Sre. Evidence of P.W. 9, Dr. P.D. Chandrawanshi and medical report of the appellant Ex. P- 19 reveals that the appeUant tried to extln^iish tfae flre, in which he received bum injuries in his both fhe hands. The evidence of P.W. 10 Jo^ Nai does not inspire canfidence especiaUy as Jogi Nai is Barbour aad was busy wifh tus (s work but instead of dischai^ing his work, he was vigflant in watehing fhe presence of fhe appeUant and it sho1ys that with a view to support and save the appellant, he has deposed in his evidence that fhe appeUant was not present in his house and was present with hls fafher, where he was working. If fhe evidence of this witness is disbelieved, even then, the prosecution has not adducal any evidence in support of fhe case of the prosecution that at the time of incident, the appeUant was present inside the house. In absence of such evldence, fhe appellant was not under obligation to ofier any explanation iinder Section 106 ofthe Evidence Act. Alfhough the circumstances especially recovery of letters contaimng aUegations against fhe appellant areates grave suspidon of fhe invcdvement of fhe appeUaat in the crime in question but fhe grave suspicion 1s not sufficient for drawing interference of commissicm of offence. 15. After appreciating the evidence, leamed Additional Sessions judge has convicted and sentenced the appellant iinder Section 302 of I.P.C. but has not considered the material evidence fhat the prosecution has failed to adduce any evidence to show that at the time of commfeslon of offence, the appellant was present tnside his house along with his wtfe or has strangulated her and thereby commftled illegallty. On a close scrutiny of fhe eaddence, in our considered opinlon, ihe evidence adduced on behaM" of the prosecution is not sufflcient for convfa;tion of tfae appellant under Section 302 ofI.P.C. 16. Consequentiy, fhe appeal is allowed. Convictfon of the appellant under Section 302 of I.P.C. and sentence imposed upon him are set aside. Sd/- r T.P.Sharma Judge Sd/- N. K. Agarwal Judge