c) HW,W,W m‘emm amm m Criminal Apm a1 No.299l 2001 CRIMINAL APPEAL uls 374 l2! OF THE CODE OF CRIMINAL PROCEDURE D.B.: HON’BLE SHRI LC BHADOO, J, & HON’BLE SHRI SUEIL KUMAR SINHA, J. ORAL J UDGMENT (28.09.2007) L.C. Bha&oo, J:- K Ms. Minn Banajee, Cc‘unssl for the appellant. Shri U.K.S. Chandel, Panel Lawver for fhe State. Hearc'i. This appeal is directed against the judgment of conviction and order of sente ilce dated 25.01.2001 passed by the Filst‘Addi’rional Sessions Judge, Bilaspur (C.G.) in S.T. No.281/2000, whereby, th' learned Addiu‘onal Sessions Judge after holding the a cused/appellant guilty of the GRPRJV mm: WI m W 200 mm (W) mmmm www¥wm %aimm APPELLANT Bn'jlal Pobiya S/o Phuddui Pobiya aged :38 ysam rasident of village Dhauramurha, PS. Pasan — Tab. Kataghora, District Korba {Chhattisgarm Versus RESPONDENT Sta te of Chhai’risgarh, Through P. EL Pasan, District Korba (Chhattisgarh) m m. A ..a./g. 200 WW (13W) ur, xx a$é§§ww Wwm 3 WW WW $aiEW3néat GRPRJ for postmortem examination t under Ex.—P/ 16, Whers, Dr postmortem. Hc opined tha due to throwing. He prepareq Site plan (EX-P] 17) was prej articles were Sent to the For After completion of the was received. from where, report (EX—P] 15) 3 Primary Health Centre, Pasan KS. Pendro conducted the t cause of death was asphyxia l postmortem report (Ex-P] 12). )ared by Halka Patwari. Seized nsio Science Laboratory, Sagan investigation, Charge sheet was iiled in the Court of Jut‘iicial Magistrate First Class, Katghora, who in tum comliiitted the case to the Sessions, Judge, Biiaspur, from Where, the learned Additional Sessions Judge received the case on transfer for trial. i The prosecution in oqBer to establish charge against 10 Witnesses. The statement of accused] appellant examined the accused] appellant was rd Code of Criminal Procedure, appearing against him in the prosecution evidence. The learned Addition Sessions Judge after hearing the counsel for the res ective’ paiiies convicted and sentenced the accused] appe ant as aforementioned. We have heard Ms. inu Banerjee, Counsel for the appellant and Shri U.K.S. Chandel, Panel Lawyer for the State. Ms; Baneijee has not isputed the homicidal death of Bxihaspatiya Bai. Moreover, r.K.S. Pendro (PW—8) has stated \7\,_ m .’ / corded under Section 313 of the an which, he denied the material mm ...........CY JA'.....w3/3Jr 'H‘L 200 Wm (W) WWW WW'W mmm (I; WW§WW %sif<mm lted postmortem on the body of Brihspatia Bai and prepareql report (EX—P] 12). Cause of death was asphyxia, as a reélul’t of throttling. Therefore, in View of the above, it is establighed that death of BrihaSpatia Bai was homicidal 1'11 nature. As far as involvement that on 15.4.2000, he conduc of the accusedjappellaut in cn'me in question is concerned, the prosecution has examined mainly 3 Witnesses namely Sadan Singh (PW— 1) who lodged the report, Sohniya Bai /(PW—2 -mother of the deceased) , Sukhmatjya Bai deceased). PW-l — Sadan S' had gone to attend the marri ge in the house of Dev Singh, ut 1 1/2 - 2 Km. He had not whatever Sohniya Bai report on that basis. PW—2 — t2c1ared hostile. She has stated :cused] appellant attacking the that in the evening at about tnt quarrelled With his wife ~ r stated that Sukhmatiya Bai used] appellant standing in the in the cross-examination, this :Lt is incorrect to say that irihspatiya Bai with a stone in . incorrect to say that (PW—8 ~ sister-in—law of the gh has stated that in fact, he which is at a distance of ab seen the incident, disclosed him, he made the Sohniya Bai has also been d4 that she had not seen the at deceased. She simply stated 4:00 pm, accused/appellz Brihaspatiya Bai. She furthe disclosed her that she saw act courtyard of the house. Even Witness has stated that accused} appellant attacked E her presence. It o WWW evidence on record to show that the accusedfappellant caused death of the deceased or he was seen by anybody e1se att any other circumstantial? Brishpatiya Bai with tha club. accumd/ appellant attacked PW—3 Sukhmatiya Bai’ihas stated that she heard cn'es of tbs child. Accused/appellant was standmg in the courtyard of his house. When she opened the door, the I accused/appellant ran away towards the kitchen garden. Brihspatiya Bai was sleeping in the coultyard, her child was weeping, she saw blood oozing out of the nose and mouth of Bn‘hasyatiya Bai, thereafter, she cal1ed the villagers. She has also been declared hostile and on cross~examination by the Govemment Pleader, accused/ appeliant attacked plank, When Sukhmatiya Bat was confronted with the police case diary statement, she stated that she has not given the said statement. She statedthat 'it is incorrect to say that accused/appeliant committed murder of Bxihaspatiya Bai by pressing her neck with a wooden plank. There is no other evidence regarding involvement of the accused1appellant in crime in question. Even thotgh this witness has stated that when she heard Clies of the sh e did that Brihspatiya Bat with a wooden not disclose child, she looked towards the courtyard of accused/appellant, where he was standing and as soon as she opened the door, he ran away, except this, there is no clear and cogent GRPR) F aching the deceased or there is idece. The stone and wooden i n E} /1O( W WW wW %aw‘&mm matmm G ? p1a11k,wer€ recovered fmm thLe place of occurrence and net at the instance of the accuseq‘, nobody'has seen ihe accused holding the stone 0r wooden there is no 1ega1 and clinching in View of the above, evidence on record to connect the ace used] appellant with the crime in question. The suspi ‘:he judgment of conviction and order of sentence cannot be sustained. In the result, the appeal succeeds. The appellant is acquitted of the charge under Section 302 of the IPC. The convictipn and sentence imposed upon him are set aside. I‘t is stated that the accusedjappellant is in detention since lé/éEOd‘O, therefore, he be set at liberty A foithwith ifnot required in any other case. Sdl- L.C. BHADOO Judge . _ g plank. :ion however strong cannot take place of proof. Therefore, Shyna GRPRJ — FS/246 2/2067 ~ 50.000. W m 4A~2°>t/stq 200 mm (1mm)