HIGH_ COURT PF CHHATTI8GARH ATBILASPUR Crimiaal Aooeal No. 527 of 2004 APPBLLANT (Injail) SaBJay Kumar Bhatt s/o Sitaraoi Bhatt, aged 22 years, resident of Kadyadama Chowk, Kharora, Tehsil Kharora, District Raipur (CG) VE_RSUS RBSPONDENT The State of Chhattisgarh, Through th.e District Magistrate Raipur CRIMINAL APPBAL U/S 374 (2) OF THE CODE OF CRIMINAL PROCUDBRE Appearsuice: Ms. Saiigita Mishi'a, counsel for fhe appeUaiit. Shri Arun Sao, Govei'ninent Advocate for fhe State. D&visiosi Beaeh:- Hoa^ble Shri T.P. Sharma 85 Ho3a>ble Slsri R.L.Jhaawar^JJ Per T.P.Sfaarma, J. ORALJUDGMBNT (01.12.2010) Challenge ia fhis appeal is to fhe judgiaent of conviction aud order of sentence dated 31.1.2004, passed by tlie 8th Additional Sessions Judge (FFC), Raipur in S.T.No.381/2003, whereby aad whereunder the leanied Additional Sessions Judge, after holdiag tihie appellaiit guilty for coniiaission of culpable horaicide amounting to niurder ofhiswife -Manju aad coucealiag tiie evidence of crim.iaal case, coiivicted fhe appeMant uiider Sections 302 aiid 201 of the IPC and sentenced for life iniprisoniiient aiid to pay a fiae of Rs.1000/-, in default of payment oflme to further undergo R.I. for 1 monfh; and RJ, for 7 years aad to pay fine of Rs. 1000/-, in default of paynient of fiae to further undergo R.I. for 1 laonfh respectively. 2. The conviction is isiipugned on fhe ground that wifhout fhere being aay iota of evidence sujBicient for conviction of the appellant, fhe leanied Additional Sessions Judge has convicted and sentenced fhe appellant as aforeinentioned and fhereby coxnmitted UlegaMty, 3. As per case of prosecution, on fateful night of 20.8.2003, at about 1.00 ain ia tlie night, appenaat and his wife- Maiiju (siace deceased) were sleepiag iii a room; suddenly fhe appeUaat started shouting that his wife is hanging, on which his father, co~ accused Sitaram aiid otlier persons carae there, at fhat tune, Manju was alive; body of Maaju was got down iniinediately, but aller soiae tiiiie, she died. Co-accused Sitaraoi lodged merg mtimation vide Ex. P/6, ou tlie basis of which, FIR was registered. Investigating Officer left for the scene of OGCiirrence aad after ^iimiTioning witxiesses vide Ex. P/l, inquest over fhe dead body of fhe deceased was prepared vide Ex, P/2. One old Sari, used for haaguig was also seized vide Ex. P/3, Patwari preparcd spot inap vide Ex. P/4. Dead body was sent for aiitopsy to PHC Kharora, where Dr. A.A.Siddique (PW-12) conducted autopsy vide Ex, P/5 aad found followiag iajuries : i Depressed injiiry over right side of fhe neck of 2 x W ii. Multiple contiisions over left side of fhe neck which were 3 in numbers iu, Multiple abrasion over neck iv. Fracture of fhyroid cartilage However, no Mgature mark was found over fbe neck of flie deceased. Mode of deafh was asphyxia as a result of throtfiiag aad deatli was hoiaicidal ia aature. Statenients of fhe witaesses ^'r y \ were recorded under Sectiou 161 of fhe Code of Crmiiaal Procedure, 1973 ( ia short the Code), 4. After completion of investigation, charge sheet was filed before Judicial Magistrate First Class/ Raipur, who ui tiim^ coniniitted the case to the Court of Sessions, Raipur, froni where, ftie learaed Additional Sessions Judge received tlie case on transfer for trial. 5. In order to prove fhe guitt of fhe accused/appellao-t, prosecution exaniuied as inaay as 13 witoaesses, Accused was exanxiiied under Section 313 offhe Code, io. which, he denied fhe circunistaiices appearing against him, ianoceiice and false iiaptication in criiae ia question was claiaied. The appellant has taken specific defence fhat deceased was sleepiag witli liim ia a room aiid at abont 1.00 am ia fhe night, be saw that his wife was haaging on fhe Myar (ceUiag) with a sad then he shouted for help, on which, his father came aad tih.ereafter, fhey got. down tlie body of his wife Maaju on a cot, at tiiat tmie she was alive, but after sosae tmie she died, 6. After aiibrdnig opportunity of hearing to fhe parties, fhe learaed Additional Sessions Judge has convicted and sentenced ffae appeUant as aibresaid mentioned. 7. We have heard Ms. Sangita Mishra, learaed counsel for fhe appellant aad Shri Arun Sao, learaed Goverainent Advocate for fhe State, perused fhe judgiaeut iaipugued and record of fhe tdal Court. 8. Leamed counsel for ffae appellaiit veheiaentiy argzied fhat ui fhe present case, convictton of tlie appellant is solely based on fhe evidence ofDr. A.A, Siddique (PW-12)^ which i^ not sufiicient for drawiag a detsiiite concliision fhat fliis is a case of only .^'" f^r^'^ r.t-.;'.i ^t-Jy v-.../'^' throtllitig aad not of haxigiiig; only absence of Mgatare inark, is not sufficient for drawmg an ixiference fhat fhe appellaat has caused homicidal death of fhe deceased, 9. On fhe otfaer hand, leamed coiiasel for the State opposed these argzinxente and subiidtted that present appellaat and the deceased were sleeping in a rooia at the time of iacident and no ofher person was present fhere aad fhe deceased died as a result of fhrottling; aud fhe appellaat beiag a husbaad, was under obHgation to offer aa explasiation that how his wife died, who caused iajuries to her on the neck aad how she hanged, Therefore, m absence of such explaaatioa, only mference would be possible fhat flie appellaut has caused deafh offhe deceased aad after appreciatiiig the evidence available on record; the leamed Additional Sessious Judge has rightly couvicted aad sentenced the appeUaat as aforesaid mentioned. 10. In order to appreciate fhe arguments advaiiced on behatfof fhe parties, we have examined fhe evidence adduced on behalf of fhe prosecution. 11. In fhe present case, abnormal deafh of the deceased Manju has not been substaiitiaUy disputed on behalt' of tlie appeUaiit; cn fhe ofher haad, it is established by fhe evidence of Dr. A.A.Siddique (PW-12) and autopsy report, Ex. P/5. Dr. A.A. Sidduque (PW-12) has specificaUy deposed that this is a case of fhrotfliag aad deafh was homicidal in nature. As per evidence of fhe Doctor, no Mgatiire mark was foiind over the neck of the deceased; fracture of fhyroid cartilage was found, but tihiis witaess has adniitted ia para 12 ofhis cross exaiaiaation fhat if the Mgature inark is recioved froin fhe neck immediately after haiiging then no Ugature mai-k would be visible over fhe neck, In cross exaiaiination, he has stated fhat if aay person haiigs r ,.-^ ,^.^..^'p Kw'; .^. :;a y r^ //' '^E himself wifh fhe help of a saii then tlie syniptoxns would not be sioiUar to fhe sym.ptonis of this case, but fracture of fh^roid carttlage would be possible by Iiangiiig aad tightening fhe Ugature. If fhe evidence of Dr. A.A. Siddique (PW-12) is considered ia its entirely, it would reveal fhat laarks aad symptoBis found over the body of fhe deceased were sixmlar to fhe inarks ofhaaging except tihe ligature naarks. in para 12 he has adBiitted tliat if tiie ligature raarks are reraoved iminediately after hangmg fhen fhe ligatux'e marks would not be present or found on fhe neck. This shows fhat presence of ligature marks is not necessary. 12. Prosecution has examined other witaesses rclatbig to hoiaicidal death of fhe deceased-Manju. As per evidence of Daulatram (PW-1), appeUaait was having motive for causiag the deafh, especially, on fhe ground fhat deceased was pregnant aad appeUant was haviag suspicion fhat she has conceived fhrough some otlier person and not fhrough fhe appellaat As per evidence of Ramkhilawaa (PW-2), Draupati Bai (PW-4), father aad mofh.er aad Sudarshaa (PW-5) relative and Mohiai (PW-11) sister of tiie deceased^ who had deposed fhat fhey stayed ia fhe house, where fhe offence took place and have seen the height of Myar (celling), which was 7 to 8 feet. They stated it appears fhat Maoju has beeu kiUed mteralia she has not committed suicide. As per evidence of Kashidas (PW-6) and Jhumuklal (PW-7) they heard sound of Sitarain for help, on which, fhey rushed fhere tlien Sitaram. told them that his daughter ia law Maaju has coniniitted suicide by hanging; fhey saw fhe dead body of Manju, which was hanguig to Myar (ceilin-g) of fhe house aad appellaat was tryuig to reniove fhe Ugature, Evidence of fhese witoesses shows fhat when fhey rushed to fhe house of fhe appeUaiit at that time, body of Maaju was haagmg aiid appeUaat was tryiag to get down ttie body by removmg the knot of Ugature, This is ,,,:-1113-*^,, '/'^f% not a case, where dead body was lyiag on the floor aad appeUant has offered explanation fhat he has renioved fhe body froin fhe Myar, but he has seen fhe body haagiag on fhe Myar, Body was haagiag and was tied wifh the Sari, but Doctor has not noted any inark of Ugature. As per defence of fhe appeUaiit aad ofher persous fhe deceased herself has cominitted suicide aad when fhey came to know fhen tliey tded to get down fhe body from fhe Myar, at fhat time, fhe deceased was ative, but subsequenUy she died. This shows that tlie appellant has removed fhe ligature froia tlie neck, which itself shows fhat iojuries, iacluditig abrasion and scratches aad contusions were found on the neck, which arc suggestive of fhe circuiastaaces fhat soniebody had used crimmal force upon the neck of the deceased. As per case of prosecution, appellaat has haaged tih-e body of fhe deceased after coniniission of inurder of fhe deceased. The height of Myar was 7 to 8 feet aiid it was not possible for fhe appellaat to haag to body of fhe deceased to such a height witbiout takiag assistaace froni sonie ofher person. Prosecution has not adduced aay ofher evidence as to who has assisted in haaguig fhe body of fhe deceased. Prosecution was under obl^ation to prove its case beyond reasonable doubt. The evidence adduced on behalfoffhe prosecution relatiag to iiijzuy over fhe neck offhe deceased shows that sonie person has used crfcmiaal force upon fhe neck of the deceased, which may be siiggestive fhat ffae appeUant has used criLmiaal force aad siifficient for drawiag suspicion fhat fhe appellant may have coniniitted fhe otYence of culpable homicide of his wife, but fhe evidence adduced on behatf of the prosecution is not sufitlcient for drawing defiiiite conclusion fhat fhe appellaat has coraniitted czilpable horcdcide ainountiag to niurder of the deceased. Appellaat has ofiered explaaation relatibag to the circuinstances aad alleged act has been coiainitted in. secrecy, which also fiiid supports froni fhe ^^ evidence of Dr. A.A. Siddique (PW-12) m para 12 of his cross exaimnatlon. 13. In fhese circuinstaaces, ia our considered view, prosecution has not proved its case beyond reasonable doubt and appeUaat is entitled for acquittal on fhe ground of benefit of doubt, Consequenfly, the appeal is atlowed. Conviction aad sentence of the appeUant under Sections 302, 201 ofthe 1PC are hereby set aside. He is acquitted of the charge by giviag benefit of doubt He be set at liberty at once, tf not required ia aay ofher case, Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge